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Official Secrets Bill Hl

Volume 9: debated on Tuesday 25 July 1911

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Order of the Day for the Second Reading read.

My Lords, I have to explain to your Lordships briefly why this Bill is introduced. The subject is no new one. It has been under consideration for a long time by the Defence Committee, and the Bill is their work arrived at after consultation with the naval and military authorities and with the legal advisers of the Crown. It is a Bill that has been prepared alter a good deal of deliberation. Its purpose is to strengthen the law for dealing with the violation of obligations with regard to official secrets and with espionage generally. It is a Bill that applies to our own countrymen as well as to strangers, and its purpose is not to enact any large body of new restrictions, but to make more effective the law as it was intended to be made by the Official Secrets Act of 1889.

The main change which the Bill makes is a change in procedure. In order to convict any one under the Official Secrets Act, 1889, it is necessary to prove a purpose of wrongfully obtaining information. If a man is found in the middle of fortifications he may say he strayed in in the dark or was only there by accident. You have to prove that he was there for the purpose of wrongfully obtaining information, and that is difficult to prove. This Bill adopts a method for which there is a precedent and which is much more effective. We still, of course, keep the criminal purpose, but the criminal purpose under this Bill is any purpose prejudicial to the safety or interests of the State, and if a person is in a place where primâ facie his presence is prejudicial to the safety or interests of the State, he has to satisfy the jury that his purpose was a right one. That, as I have said, is nothing new. It is a section taken from the Prevention of Crimes Act, 1871. Under that section certain classes of offenders have to justify themselves when their character and conduct raise suspicion.

I will give one or two instances showing what our difficulties have been. Not many months ago we found in the middle of the fortifications at Dover an intelligent stranger, who explained his presence by saying that he was there to hear the singing of the birds. He gave the explanation rather hastily, because it was mid-winter. Then there was another case, in which somebody was found looking at the emplacement of guns in a battery at Lough Foyle, and he declared that he was there for the purpose of paying a call upon somebody. Then there was another case of a man who was sketching fortifications. He ran away, but was caught. The case was one which attracted attention at the time, but our means of proving his purpose were extremely inadequate. Again, we have found photographers taking photographs of things of which they ought not to be taking photographs, and they said they were merely taking photographs of an interesting object. There have been cases in which we have found people close to magazines—very convenient targets for dropping explosives from above. There, again, they have claimed to be there by accident, and because the burden of proving that there was a purpose of wrongfully obtaining information lay upon us we could not prosecute with any hope of success, though in most cases we were convinced that there were good grounds to prosecute.

Now under this Bill what has to be shown is that there was a purpose prejudicial to the safety or interests of the State, and if your Lordships will look at Clause 1, subsection (2), you will see that it is enacted that a person's motive may be inferred if from the circumstances of the case or his conduct or his known character he may be taken to have been there to no good purpose. Of course, he has the opportunity of clearing his character in the fullest way, but the circumstances are such as to throw the burden of proof on him. That is the main provision of the Bill. The other provisions are shortly these. Under the Official Secrets Act the places which were barred from public access were but few. For instance, it may be just as important that strangers should not go into a private dockyard where a Government warship is being built as it is that they should not go into a Government dockyard; and there are many other places which have grown up in importance in the last twenty years which were not covered by the limited descriptions in the Act of 1889. Therefore it is proposed to widen the definition of these places and to give the Secretary of State the power—a power which will only be exercised in time of emergency—to prescribe other places. There is a provision in the Official Secrets Act of 1889 which we keep—the provision that you cannot prosecute without the assent of the Attorney-General. That provision was construed to mean that you could not arrest without the fiat of the Attorney-General. The result was that many of these persons with whom we wished to interfere were a long way off before any warrant could be obtained for their arrest. Therefore there is a provision in this Bill analogous to that which exists in the present law in the case of all felonies. Then there is also a power of searching, which is essential. I think I have now told your Lordships the extra provisions except one, and that is that harbouring spies is made an offence, and that is necessary for concrete reasons.

As I have said, the Bill is not directed against anybody in particular, but applies to our own people as well as to people of other nations. If I were asked whether there is much espionage in this country I should say that foreign Governments direct espionage in this way very little indeed; but I do believe that a great many zealous people of all nationalities are anxious to obtain information by which they may recommend themselves to their Governments, and that there is a great temptation to people with expert knowledge to acquire this information. I have certain knowledge of persons—who may have done it, and probably did do it, in an entirely private capacity—making maps which they ought not to have made, and it is not desirable that that power should remain unchecked. This Bill is a carefully considered attempt to deal with the subject on an official footing. I hope it is a Bill which will commend itself to your Lordships as not being brought in through any excess of caution, but merely one which marks the stage in these things which, with the necessary evolution of matters, we have now reached.

Moved, That the Bill be now read 2a .—( Viscount Haldane.)

My Lords, it is now twenty-two years ago since the late Mr. Stanhope pressed the original Official Secrets Bill upon the attention of Parliament, and I remember that grave apprehensions were then expressed that the Bill had been drawn too severely and would bring too many people within its clutches; but, as the noble Viscount has said, it has been proved that there was no ground for that apprehension. There is no real difficulty in preserving official secrets if you know and fix your mind on the fact that they are desired by somebody else and determine to preserve them by the exercise of all possible care. The Brennan torpedo, for which a large sum was given by our Government about the time that the Official Secrets Act was passed, did, I believe, remain a secret for a long period of years, and certainly the advantage which we expected from it we had the monoply of during that period. But our difficulty always has been that our officials are inclined to take things very easily. There is of course no difficulty with regard to special questions on which the minds of the military and naval authorities are so set that every officer is aware of the danger that would be incurred in letting the secret out of his possession, but practically almost all other questions are open.

The noble Viscount has given some instances, and I will state one which perhaps he does not know, and I will give him the names privately if he desires them. An officer of very high rank told me some little time ago that he had taken two young officers in his command and said to them, "There is a particular fortress. Go in plain clothes and bring me back sketches of every place where there is a gun in that fortress. I will give you, to be used at the last moment when you are being hailed into custody, this safe conduct pass to explain what you are doing and that you are doing it by my orders." In a week they returned with the disposition of every gun in that fortress, having had no credentials with them except that they spoke English glibly—and such men could, of course, be obtained by any foreign Power. I think, therefore, that this Bill which is not an extension of powers but merely the adoption of existing powers with the necessary amendments to make those powers effective is urgently needed. On the other hand, I do think that our military and naval authorities must take care that the sort of openings and undue confidence which we have shown in the past are not allowed in the future. I congratulate the noble Viscount on having taken up this subject. It is always difficult for anybody in his position who is not a lawyer to feel sure that he is not asking for something which those who have to administer the law may feel to be unduly burdensome and dangerous to the; public interest. The noble and learned Viscount has taken advantage of his own knowledge to fill up most necessary gaps, and I can only say from my own experience that I feel this Bill is urgently needed in the interests of the country.

My Lords, having had a great deal to do with the drafting of the original Act, I should like to say that it was pointed out at the time that there were several gaps not properly stopped but it was thought that we had better see the working of the Act before any Amendments were made. I was Attorney-General for several years after the Act was passed, and I should like to endorse what has been said as to the extreme difficulties we experienced in instituting prosecutions. Consequently I am very glad that the noble Viscount has brought in this Bill. There are, however, one or two matters in the Bill to which I hope the noble Viscount will pay attention before the next stage. I would call his attention, first, to the words "known character as proved" in subsection (2) of Clause 1. It is opening the door of criminal law for which some justification will be required. It is quite true that when people are found under certain circumstances their previous record as actually proved can, under the Prevention of Crimes Act, be given in evidence; but I have never known any Act to go so far as to say that a man's known character may be proved and I am afraid that in the working of the Bill this will create difficulties. I think the words will be found too wide unless some indication is given. The only other point I wish to raise is with regard to Clause 3. I think the definition of "place" will require a little more careful consideration. I think it will be found from some points of view very narrow. I may add that I shall be glad at any time to discuss these points with the noble and learned Viscount.

My Lords, I am very glad that the noble Viscount has brought forward this Bill, and I hope that, it will be persevered with in another place and become law this year. Too many people in this country appear to consider that preparation for war is a mere question of payment of money. There are many other preparations necessary. A recent occurrence near Portsmouth has shown that it is quite clear that our law needs strengthening. As far as I have been able, to ascertain, the codes of other countries as regards spying are far more severe than ours.

I regret that His Majesty's Government do not appear to be taking any steps towards bringing in a Bill to prevent the dissemination of news during war or emergency. I have no doubt that when war is once declared a most stringent Bill will be brought in and passed; but inasmuch as naval surprise in time of peace or during the first week of a war is the greatest danger to which we are exposed it would be much wiser to pass such a Bill in a time of profound peace and give the Government the power of bringing it into action by an Order in Council. If the noble Viscount cannot give it now, I should like an assurance before going into Committee that the captains of our gunnery, torpedo, and submarine and wireless establishments have been consulted. If they have not yet been consulted, there will be time enough to consult them before taking the Committee stage and of embodying their suggestions if thought proper in the Bill.

I wish also to call attention to the wording of paragraphs (b) and (c) of Clause 1. It might be argued before a Justice of the Peace not learned in the Jaw that as we are at peace with all the world we have no "enemies," and that an accused person would therefore be entitled to an acquittal. The wording of those paragraphs should, I think, be altered by substituting the words "foreign Power" for the word "enemy" in a drafting Amendment. I hope that the noble Viscount will proceed with the Bill, and that it will receive a good reception in another place.

On Question, Bill read 2a , and committed to a Committee of the Whole House on Tuesday next.