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Official Secrets Act (Amendment) Bill

Volume 77: debated on Friday 26 April 1985

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Order for Second Reading read.

2.16 pm

I beg to move, That the Bill be now read a Second time.

The Government are in a mess over section 2 of the Official Secrets Act. They used it last year to bring a prosecution against Sarah Tisdall and were successful in that prosecution. They then used it to bring a prosecution against my constituent, Mr. Clive Ponting, and, fortunately, they were unsuccessful. The Old Bailey verdict in that case represents a tribute to the good sense of a British jury. The upshot of that decision is that the Government are in a complete fix about whether they can use section 2 of the Act.

In the case of Cathy Massiter, who revealed detailed evidence about what was happening in MI5, the Government decided not to prosecute. The Government investigated the case of Lord Lewin, and decided not to prosecute. Having considered the case of Commander Wreford-Brown, the commander of the Conqueror, who revealed details of the Conqueror's course long before the information was declassified, they decided not to prosecute.

All of that is evidence that the Government do not know what to do about official secrets, and particularly about any proposed or considered use of section 2 of the Official Secrets Act. By introducing the Bill I am doing the Government a favour, for I am seeking to remove the problem from them by removing section 2 from the statute book.

Section 2 has been widely criticised—for example, by the Franks committee long ago, by a series of eminent judges and lawyers and by the present Home Secretary —of course, when in opposition—who described it as indefensible. It has also been criticised in many letters that I have received since laying the Bill before the House. One which may be of interest to hon. Members was from Mr. Chapman Pincher. He wrote to me at the beginning of February to say:
"Dear Mr. Smith,

I wish you well with your Bill to abolish Section 2 of the Official Secrets Act. It is 13 years since I gave evidence on that issue to the Franks Committee and successive governments have done absolutely nothing."
The Bill is an attempt to ensure that the House of Commons will seek to do something; to tackle a problem which Governments of all political persuasions — we should remember that it was a Liberal Government who brought in the Official Secrets Act — have failed to tackle.

The basic points that must be made are simple. Section 2 of the Official Secrets Act is an absurdity. It is a catchall section which covers every piece of paper that crosses any civil servant's desk, any information to which a civil servant is privy, any details about where, how or on what he is working. It is quite simply nonsense that a civil servant should be subject to potential criminal prosecution for revealing details of any sort whatsoever about his work. The common examples which have been quoted frequently in the House stand as testimony to that absurdity.

For example, it is an offence under section 2 of the Official Secrets Act to reveal information about where the tea comes from that is supplied to the Ministry of Agriculture, Fisheries and Food canteen. It is also an offence to receive that information. It is nonsense that we should have on the statute book a piece of legislation which covers every detail about what civil servants do.

More importantly, the Official Secrets Act is more insidious than that. It is not just an absurdity that it has such a catch-all nature and effect. It is also a dangerous piece of legislation because it can be, and has been, used by Governments—again of both political persuasions, but particularly this Government—for political purposes. If the Government do not like what a civil servant has done or said, even though that doing or saying may have had no genuine impact whatever on national security, simply because they are politically embarrassed, they may decide to use section 2 for their own political purposes. I believe that that is what happened in the case of my constituent, Mr. Ponting. I fear that we still have on the statute book an Act which enables Governments to proceed in that manner. It is for that major reason—the political danger of having that measure on the statute book—that I wish to see section 2 removed.

I hope that in the brief time available the House will not simply allow the measure to be talked out, because it is a serious issue. It is an issue of major public concern, and many Governments have failed over many years to do something about it.

In introducing the Bill I am offering the House an opportunity to clear the decks of this long-discredited piece of legislation. I know that the next Labour Government will do so, but I hope that this Government will be a bit more enlightened on this issue than many others and bring forward some of their own proposals. In place of section 2 we need a much tighter definition of national security and espionage, with which section 1 purports to deal, but does so ineffectively.

At the same time, we need to replace this highly discredited piece of legislation with full and proper freedom of information legislation to open up the over-secretive processes of government in this country.

In that spirit, I commend this very simple, direct and proper Bill to the House. I hope that it will be overwhelmingly supported and read a Second time.

2.24 pm

The Parliamentary Under-Secretary of State for the Home Department
(Mr. David Mellor)

The hon. Member for Islington, South and Finsbury (Mr. Smith) is certainly right in saying that his Bill could not be shorter or more straightforward. It consists of just two clauses, the first of which reads:

"Section 2 of the Official Secrets Act 1911 is hereby repealed."
The second reads:
"This Act may be cited as the Official Secrets Act (Amendment) Act 1985."
For 15 to 20 years successive Governments have been bedevilled by the problem of how to erect a modern mechanism for the protection of official secrets and have found it difficult to arrive at a conclusive answer. The hon. Member for Islington, South and Finsbury, however, is not a man for the half tones, the half lights or the subtleties of the situation. He simply comes in with his size 15 boots and says, "Just throw the whole thing out and end the problem." The hon. Gentleman's approach reminds me of the late Professor Maitland's observation that for every complex human problem there is an answer that is simple, plausible, easy, obvious and wrong. We can rely on the hon. Gentleman's unerring instinct for the wrong answer to bring him here with a measure of this kind, and he will not be offended if I say that it provided a light conclusion to a heavy morning's legislation on badgers, bingo and the like to hear him put the case with such spurious charm for a measure which is no more attractive to me than it would have been to the last Labour Government.

If the hon. Gentleman's Bill were enacted, section 2 of the Official Secrets Act would be repealed and the improper disclosure of official information could be dealt with only under section 1. Subsection (1) of that section provides for it to be an offence:
"If any person for any purpose prejudicial to the safety or interests of the State—approaches or is in the neighbourhood of, or enters any prohibited place",
a provision which clearly does not concern us in this instance, or:
"makes any sketch, plan, model, or note which is calculated to be or might be or is intended to be …useful to an enemy",
which is the classic case of spying.

the third and final part of subsection (1) makes it an offence if any person
"for any purpose prejudicial to the safety or interests of the State …obtains, collects, records, or publishes, or communicates to any other person any secret official code word, or pass word, or any sketch, plan, model, article, or note, or other document or information which is calculated to be or might be or is intended to be …useful to an enemy".
I have quoted those provisions to illustrate the fact that section 1 protects documents only if they are disclosed
"for any purpose prejudicial to the safety or interests of the State"
and only if the disclosure is
"calculated to be or might be or is intended to be …useful to an enemy".
In other words, it is a fairly narrow offence intended to deal only with spying and related activities.

No responsible Government—far be it from me to speculate about whether some future Labour Government would be responsible, such a circumstance being likely to arise so far in the future, if ever—could accept that section 1 should stand alone, because grave damage could be inflicted even if the information would not be useful to an enemy or was not disclosed for a purpose prejudical to the interests of the state.

I cannot believe that the hon. Gentleman is really suggesting that any unauthorised disclosure not falling within the narrow ambit of section 1 should not be addressed by the criminal law. What of the person who reveals information entrusted to us in confidence by the Government of another state? What of the person who releases information likely to be useful in the commission of an offence? What of the person who releases documents revealing confidential commercial information or personal details given by individuals in the expectation that they will be held in confidence? Does the hon. Gentleman really believe that the criminal law has no part to play in those serious cases?

The hon. Gentleman might well ask whether we could not rely on internal disciplinary measures, and there are instances where these are sufficient. Equally, there are cases where they are not. Furthermore, the sanction which is so often mentioned in this context, the sacking of the perpetrator of the unauthorised disclosure, can, by definition, be directed only against those currently in the public service. However, it is not only those who are currently in the public service who might be possessed of information which could fall into any of the serious categories.

If the hon. Gentleman were to have his way, no sanctions could be applied either against people who have left the public service or against those, such as Government contractors, who have never been in the public service, because some of those—

It being half past Two o'clock, the debate stood adjourned.

Debate to be resumed upon Friday 14 June.