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Official Secrets Bill Hl

Volume 40: debated on Wednesday 30 June 1920

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Order of the Day for the Third Reading read.

My Lords, in the absence Of my noble friend Viscount Peel, I move that this Bill be now read a third time. When the measure was under discussion in the Committee stage several criticisms were made by one or two of your Lordships on the wording of the Bill. I undertook on that occasion to examine the Bill with reference to one or two clauses which were the subject of special criticism, and my noble friend Lord Peel has put down on the Paper Amendments which seem to me to carry out the purpose intended. I notice that my noble friend is now in his place, and perhaps he will explain the nature of the proposed Amendments.

Moved, That the Bill be now read 3a .—( The Lord Chancellor.)

My Lords, I apologise for not being in the House at the commencement of business; I understood there was other business to be taken first, and I am obliged to my noble and learned friend for dealing with this matter. The Amendments which I have placed on the Paper are the result of some discussion with my noble friends Lord Burnham and Lord Riddell, who dealt with the matter on behalf of the Press. It would save time if I dealt generally with the Amendments. There is an Amendment in Clause 1, subsection (2) (a), to insert, after "retains,; the words "for any purpose prejudicial to the safety or interests of the State." It was pointed out that the clause as it stood was rather too general, and that it might apply to various subjects to which it was not intended to apply. The Amendment has been put down in order to limit it to the particular cases where it is prejudicial to the safety or interests of the State.

Then there is an Amendment in subsection (2) (a), after "lawful authority," to insert "any Government Department or any person authorised by such Department." The complaint was that these orders might be given by some rather humbly placed official, and that orders of this importance ought really to come under the cognisance of the heads of Departments, or some one definitely assigned for the purpose. The Amendment inserting a new subsection after subsection (2)of Clause 1 is really making that particular provision apply generally to Clause 1 and Clause 2. This is rendered necessary by the insertion of the words "for any purpose prejudicial to the safety or interests of the State."

The only remaining Amendment is on Clause 3, page 4, line 5, and it is really in the nature of a drafting Amendment. It was pointed out that there was some overlapping between Clause 3 and Clause 6, and we propose to leave out all words after "similar duty" on line 5, page 4. Then in Clause 6 it is proposed to introduce, after "purpose," where that word first occurs, "or to any member of His Majesty's forces engaged on guard, sentry, patrol, or other similar duty." The effect of these words will be that information cannot be asked for haphazard by any official, by any soldier who is not on definite duty, but by a soldier who is on guard, sentry, or patrol duty at places where secrecy must be maintained. That is the whole purpose of these Amendments. I lay most stress on the two to which I referred first, because they are the result of a discussion with those gentlemen who represent the Press and who thought there might be some danger to the freedom of the Press being infringed. I should like to say one word on a matter to which a good deal of criticism has been directed. There is no Amendment on the Paper dealing with it. It has been suggested that the words "retains any official document" in subsection (2) paragraph (a) includes all the Blue Books and other Government documents which might be issued to the Press and afterwards ordered to be withdrawn from them, and that there would be a good deal of trouble in this connection. That criticism really is directed to an entirely wrong point. If your Lordships will look at subsection (1), paragraph (c), you will see that there is a definition there of what is an official document. It says anybody who "forges, alters, or tampers with any passport or any naval, military, air force, police, or official pass, permit, certificate, licence or other document." Stress has been laid on the words "other document," but your Lordships who are familiar with the rules of interpretation know that such a document must be of the same character as the enumerated documents, and it could not apply, and is not intended to apply, to anything wider than the class of documents which are enumerated. I think there has been some misconception on that point.

My Lords, before the Bill is read a third time I should like to make one or two observations, and I think this is a convenient moment. It is too late to discuss the Bill generally. It is a Bill to which a great many people object on the ground that it gives far too much power of prosecution to the official body. I share that view myself, and regret that a Bill of this kind is necessary, if it is necessary, because it will seriously interfere with ordinary freedom in various directions. I am not speaking on behalf of the Press, but on behalf of private individuals. For instance, if I might give an illustration, it not only makes it a duty to give information to a police officer—in other words, makes it the duty of a person to become a common informer in certain circumstances—but on tender of a reasonable fee obliges you to attend at such reasonable time and place as may be specified by the police officer in order to give him the information. I merely give that as one of the illustrations. I object to having placed upon me the duty of becoming a common informer, and I object still more strongly, if a certain sum of money is tendered to me, to being obliged to go to some place which the police officer indicates in order to give him the information.

And who is to be the judge of what is a reasonable time? That is exactly the difficulty which always arises in such cases. These things are all right on paper, but when you come to the working of them out, especially as regards poor people who have become suspect in certain ways, they can operate very harshly. I want to say one word only as regards the words which are sought to be inserted in Clause 1, page 2, at line 24. The words are words of limitation, I admit— "for any purpose prejudicial to the safety or interests of the State." Words of a similar kind were introduced into a large number of the D.O.R.A. Acts, or the Orders issued under them, no doubt for the protection of individuals who were alleged to have done something in contravention of the statutory duty imposed upon them, but that limitation has always been found to be perfectly illusory in fact; for this reason. Who is to determine whether it is "prejudicial to the safety or interests of the State?". It is the prosecutor, the Department concerned, who is to decide, and so far as I am aware, if the Department concerned come and say that in their view the retention of the documents is "prejudicial to the safety or interests of the State," that decides. the matter.

Perhaps I might ask the view of the Lord Chancellor as well as that of the noble Viscount. Of course, these words are some protection. On paper they look like a valuable protection, but when you come to consider what the conditions are, that the official who institutes a prosecution is the same person whose opinion is taken as to whether the purpose is prejudicial to the safety or interests of the State, I do not think there is any case, so far as I know, in which against the mere statement of the proper official any Court can look into the matter one way or the other. It is all very well to say it is unlikely that an official should have this view, but there is perfectly genuine room for a large difference of opinion. A man might retain a document quite innocently from his own point of view; but on the other hand from the point of view of the official, perfectly genuinely, it might be a purpose prejudicial to the safety or interests of the State. The Official ought not to be the person to decide that, because it would make the prosecutor the very person who defines what the offence is. I am not speaking on behalf of the matters which concern the Press, because I think if there is one body sufficiently strong to look after themselves, and indeed to force their views upon others, it is the Press of this country. I am speaking on behalf of the comparatively small, poor man, and the man who has few friends, and against whom, as a matter of fact, proceedings of this kind will very ordinarily be taken. I ask the Lord Chancellor to say whether in his opinion any other view would be taken by a Law Court except that where an official has made a statement to that effect that concludes the matter.

My noble and learned friend has raised two points of objection of the same kind. He objects in the first place to the provision of Section 6, under which it is the duty of any person to give on demand to a police officer any information in his power, and my noble and learned friend objects to the requirement that he shall, upon tender of his reasonable expenses, attend at such reasonable time and place as may be specified for the purpose of furnishing such information. My noble and learned friend asks who is to determine whether or not the time and place are reasonable. I think a moment's reflection will suggest to my noble and learned friend that if a demand is made, either in respect of time or of place, which is unreasonable, the person to whom the demand is addressed, if acquainted, as he ought to be, with the Act, will at once say "it is not reasonable, and I shall not go." it is then for the Court, if further steps are taken, to determine whether the time or place suggested was reasonable. My experience has been that it is not in practice that these difficulties arise. In practice what happens is this. If a request which is not reasonable is addressed to any person he replies, by post or otherwise, "I cannot come at such a time, to such a place, for such and such reason"; and I am sure my noble and learned friend will find that there will be every desire on the part of the authorities to assist him.

The more important point raised by my noble and learned friend deals with the words contained in the Amendment to be moved by the noble Viscount in charge of the Bill providing that "in the case of any prosecution under this section involving the proof of a purpose prejudicial to the safety or interests of the State, subsection (2) of section one of the principal Act shall apply in like manner as it applies to prosecutions under that section." The noble and learned Lord is aware of the provision of subsection (2), section one, of the principal Act. He does not quarrel with the extent of the protection given in the later words of the Amendment, but he says that the earlier words are lacking in security; for this reason, that it would be for the prosecutor to decide whether or not a prosecution under this section involved the proof of a purpose prejudicial to the safety or interests of the State. I do not take that view, and on reflection I am persuaded that he will not do so. It is not for the prosecutor to decide at all whether or not proof of a purpose prejudicial to the safety or interests of the State is involved. It is entirely a matter for the Court to determine. If the defendant wishes to pray in aid the benefit of the last three lines of the Amendment, then he will say to the Court, "This is not a prosecution which involves proof of a purpose prejudicial to the safety or interests of the State." He would say, on the contrary, "I aver this is such a prosecution." That would be the first matter that the magistrate has to determine, and I do not think there need be any danger apprehended as to what would arise upon that. I must confess that I am not particularly enamoured of the phraseology, which seems to me to be new in a Statute of this kind, and I will have the language examined before the matter is further dealt with.

May I be permitted to give one answer to the first point mentioned by the Lord Chancellor. The section, I admit, is a most important one. He says that whether a man has acted reasonably or not under these conditions may be a matter of evidence. I do not question that, but, after all, the man runs the risk of two years' imprisonment if someone else takes a different view of what is reasonable.

The noble and learned Lord is surely not of opinion that the magistrates of this country would act as he fears in the case of a man who was bona fide. They would act upon the evidence, and if they found that he was reasonable in what he had done they would not hold him liable to two years' imprisonment.

On Question, Bill read 3a .

Clause 1:

Unauthorised use of uniforms; falsification of reports, forgery, personation, and false documents.

1. If any person for the purpose of gaining admission, or of assisting any other person to gain admission, to a prohibited place, within the meaning of the Official Secrets Act, 1911 (hereinafter referred to as "the principal Act"), or for any other purpose prejudicial to the safety or interests of the State—

  • (a) uses or wears, without lawful authority, any naval, military, air-force, police, or other official uniform, or any uniform so nearly resembling the same as to be calculated to deceive, or falsely represents himself to be a person who is or has been entitled to use or wear any such uniform; or
  • (b) orally, or in writing in any declaration or application, or in any document signed by him or on his behalf, knowingly makes or connives at the making of any false statement or any omission; or
  • (c) forges, alters, or tampers with any passport or any naval, military, air-force, police, or official pass, permit, certificate, licence, or other document (hereinafter in this section referred to as an official document), or uses or has in his possession any such forged, altered, or irregular official document; or
  • (d) personates, or falsely represents himself to be a person holding, or in the employment of a person holding office under His Majesty, or to be or not to be a person to whom an official document or secret official code word or pass word has been duly issued or communicated, or with intent to obtain an official document, secret official code word or pass word, whether for himself or any other person, knowingly makes any false statement; or
  • (e) uses, or has in his possession or under his control, without the authority of the Government Department or the authority concerned, any die, seal, or stamp of or belonging to, or used, made or provided by any Government Department, or by any diplomatic, naval, military, or air-force authority appointed by or acting under the authority of His Majesty, or any die, seal or stamp so nearly resembling any such die, seal or stamp as to be calculated to deceive, or counterfeits any such die, seal or stamp, or uses, or has in his possession, or under his control, any such counterfeited die, seal or stamp;
  • he shall be guilty of a misdemeanour, and subtion (2) of section one of the principal Act shall apply to prosecutions under this subsection in

    like manner as it applies to prosecutions under that section.

    (2) If any person—

  • (a) retains any official document, whether or not completed or issued for use, when he has no right to retain it, or when it is contrary to his duty to retain it, or fails to comply with any directions issued by lawful authority with regard to the return or disposal thereof; or
  • (b) allows any other person to have possession of any official document issued for his use alone, or communicates any secret official code word or pass word so issued, or, without lawful authority or excuse, has in his possession any official document or secret official code word or pass word issued for the use of some person other than himself, or on obtaining possession of any official document by finding or otherwise, neglects or fails to restore it to the person or authority by whom or for whose use it was issued, or to a police constable;
  • (c) without lawful authority or excuse, manufactures or sells, or has in his possession for sale any such die, seal or stamp as aforesaid;
  • he shall be guilty of a misdemeanour.

    Amendments moved—

    Clause 1, page 2, line 19, in subsection (1)( e), leave out from ("misdemeanour") to the end of subsection (1).

    Clause 1, page 2, line 24, in subsection (2)( a}, after ("retains") insert ("for any purpose prejudicial to the safety or interests of the State").—( Viscount Peel.)

    On Question, Amendments agreed to.

    Amendment moved—

    Clause 1, page 2, lines 27 and 28, in subsection (2)(a), leave out ("lawful authority") and insert ("any Government department or any person authorised by such department").— (Viscount Peel.)

    I cannot help thinking that it would be better, if this is really intended as a matter of defence, to enable people to challenge the allegation that it is prejudicial to the safety or interests of the State—

    I have already put that question on an Amendment, to which we have just agreed.

    On Question, Amendment agreed to.

    moved, at the end of the clause, to insert the following new subsection—

    "( ) In the case of any prosecution under this section involving the proof of a purpose prejudicial to the safety or interests of the State, subsec- tion (2) of section one of the Principal Act shall apply in like manner as it applies to prosecutions under that section."

    Amendment moved—

    Clause 1, page 2, line 44, after subsection (2), insert the said new subsection.—(Viscount Peel.)

    I hope I shall be in order now in raising my question about a purpose prejudicial to the State. In the first place, I think it ought to be provided that it must be proved at the trial that it is prejudicial. Secondly, I challenge such very vague words as "prejudicial to the safety or interests of the State." I am not aware that the State is a term of art. We know the Crown. The State is a term very commonly used in debate, but I do not know that the State is an entity which we know in Statutes and in law. I am very much afraid that, whatever the State may mean in law, practically it means the Government, and the interests of the Government may be very different from the interests of the community. We know well, if we only look back to the trials in the time of the great war with France, when our tribunals were guided by people like Lord Eldon, Lord Castlereagh, and Lord Sidmouth, that there was a most outrageous straining of the law in prosecutions in regard to the interests of the State Things that the most reactionary man at the present day would condemn were then done. In my view the State (or the Government) does not have higher rights than the individual in the legal sense, and I very much object to declaring that because a man does something which is thought to be against the interests of the State—that is, the Government— he has committed a criminal offence, and I should like to divide on this point if any one will support me.

    May I point out my objection to this subsection, which I hope may be withdrawn? When I first saw it I thought that it was a modification in favour of the subject, but it is nothing of the kind. It is in fact exactly the contrary. The Act which is referred to is In respect of penalties for spying. I am one of those who detest spying from every point of view and no penalties are too heavy for it; but so far from this subclause being in any way a protection of the subject, it makes the position more difficult for him, and I do not know why it has been introduced at this stage. I do not think that the noble Viscount told us that the effect of it is to bring into a new Act a special provision unfavourable to the defence, and that it is introduced in a special way in reference to penalties for spying. It actually says that it shall not be necessary to show that the accused person was guilty of any particular act.

    If that is so, it is late to raise the objection. It certainly is detrimental to the subject, and detrimental, I think, in rather a harsh way.

    If my noble and learned friend will look at the Bill as introduced, at page 2, line 19, he will see the words "must be guilty of a misdemeanour." Although we have had a remarkably spontaneous series of articles in the Press— leading articles—all of which synchronise in an unusual manner in their criticism of this Bill, no one has criticised these particular lines as far as I know. It may relieve the apprehensions of the noble Lord who spoke of his willingness to divide upon this question if I tell him that the words purporting to be prejudicial to the safety or interests of the State are contained in the Official Secrets Act, 1911. I might also call the noble Lord's attention to the fact that the same words are contained in another Statute, and that they have been construed by Courts all over the country, and as far as I am aware there has never been the slightest difficulty in construing them with the utmost fairness.

    The difficulty which some of us are in is in consequence of the adoption of the now too much time-honoured practice of legislation by reference. Some of us are in the dark as to what is the actual effect of applying here the provisions of the subsection in another Act that is not before us. I should not object if the Court itself is left to be the judge whether the purpose in hand is a purpose prejudicial to the State or not.

    I tried to make it plain that that was, and must be, the effect of the new subsection.

    I hope I may be pardoned for having desired to make it as clear as possible, because there are cases in which this sort of facts, if they are in issue, are able to be proved by the mere certificate of the Secretary of State, subject only to his personal attendance in Court. I am glad that is not the case in this particular matter.

    On Question, Amendment agreed to.

    Clause 3:

    Interfering with officers of the police or members of His Majesty's Forces.

    3. No person in the vicinity of any prohibited place shall obstruct, knowingly mislead or otherwise interfere with or impede, the chief officer or a superintendent or other officer of police, or any member of His Majesty's forces engaged on guard, sentry, patrol, or other similar duty, or shall withhold from the chief officer or a superintendent or other officer of police or any member of His Majesty's forces any information in his possession relating to an offence or suspected offence under the principal Act or this Act, which he may reasonably be required to furnish, and if any person acts in contravention of or fails to comply with this provision, he shall be guilty of a misdemeanour.

    Amendment moved—

    Clause 3, page 4, line 5, leave out from ("duty") to the end of the clause.—(The Lord Chancellor.)

    On Question, Amendment agreed to.

    Clause 6:

    Duty of giving information as to commission of offences.

    6. It shall be the duty of every person to give on demand to a chief officer of police, or to a superintendent or other officer of police not below the rank of inspector appointed by a chief officer for the purpose, any information in his power relating to an offence or suspected offence under the principal Act or this Act, and, if so required, and upon tender of his reasonable expenses, to attend at such reasonable time and place as may be specified for the purpose of furnishing such information, and if any person fails to give any such information or to attend as aforesaid he shall be guilty of a misdemeanour.

    Amendment moved—

    Clause 6, page 6, line 19, after ("purpose") where that word first occurs, insert ("or to any member of His Majesty's forces engaged on guard, sentry, patrol, or other similar duty").—{The Lord Chancellor.)

    On Question, Amendment agreed to.

    Moved, That the Bill do now pass.—( Viscount Peel.)

    On Question, Bill passed and sent to the Commons.