Freedom of Publication (Protection) Bill

– in the House of Commons am 12:00 am ar 10 Ebrill 1970.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Order for Second Reading read.

2.1 p.m.

Photo of Mr Jasper More Mr Jasper More , Ludlow

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

This is not the first time that this or a similar Bill has been before the House. Four years ago the matters raised by the Measure were the subject of a considerable debate in another place. Founded on that debate—which itself was founded on a report of a committee of the legal society called Justice—a Bill was introduced into this House by me as one of those successful in the Ballot. It was, when called for Second Reading, talked out in this place by a Labour Minister speaking on a previous Bill until 4 o'clock, a familiar manoeuvre.

The Bill was introduced on a second occasion by me in the same form, also on a Friday, and on that occasion the Second Reading was talked out by the House being counted out after 2.15 p.m., another familiar manoeuvre in this place.

Last Session, a very similar Bill was introduced by my hon. Friend the Member for Birmingham, Hall Green (Mr. Eyre), who, unfortunately, cannot be with us today. That Bill, though not really welcomed by the Attorney-General, secured a Second Reading in the House. It went into Committee and, although most of its Clauses were opposed at that stage by the Attorney-General all its Clauses—with the exception of one, dealing with the question of malice—got through Committee.

The Bill also got through its Report stage on the Floor of the House. The Measure then came up for Third Reading in this place when, after considerable debate, it was again talked out, this time by an hon. Gentleman opposite speaking on the Bill until 4 o'clock.

A further day was then assigned for the Bill. 13th June, 1969. On that occasion the Bill failed to continue its progress through the House because the Government had decided on the previous evening, which was a Thursday, to suspend the 10 o'clock rule for the sake of another private hon. Member's Measure, the Divorce Reform Bill.

The debate on that Measure, as hon. Members may recall, ran through the night to the extent of cutting out the following day's, Friday's, business. In that way this or a similar Measure has, on three, if not four, occasions been pre vented, by various parliamentary manoeuvres, from succeeding.

It is regrettable that things should be in this state, because whatever views there may be about the matters in the Bill, I do not think that anybody can deny that they are matters which need to be discussed and decided upon in this place. They affect three branches of the law which directly concern the Press and broadcasting authorities—first, the law of contempt; secondly, the law of defamation; and, thirdly, the Official Secrets Act.

The original statement of the noble Lord the Lord Chancellor in 1966, in the other place, does not now sound particularly convincing as a reason for not wishing to pursue the matter. On that occasion the reason was that the Government would not have time in that Session for legislation on the issue. Since that occurred the Government have had considerable time for other forms of private Members' legislation. We have had Measures on homosexuality and abortion. We are told that we are now to have a Bill on hare coursing. Apparently all these things are more important, in the eyes of the Government, than the matters raised by this Bill, which is of fundamental importance to the Press and the public.

Even the Prime Minister said in the House, in response to a Question, that he was convinced of the abhorrence that should be held for hare coursing as a sport. After representing for 25 years his constituency of Huyton, which is almost within shouting distance of the Waterloo Cup, that might have occurred to the right hon. Gentleman rather sooner. I feel that in all these manœuvres about private Members' legislation there is, even in the highest circles, some element of hypocrisy.

Accordingly, there is nothing new that I can tell the House about the Bill, and for that reason I would only be repeating what is on record if I were to say a lot about its provisions, and particularly about the Clauses relating to contempt and defamation.

The Attorney-General will note that the Bill includes a Clause about malice. However, that provision could willingly be struck out in Committee, if he feels particularly averse to it. The Measure does not include a new Clause which was added in Committee to the Bill introduced by my hon. Friend the Member for Hall Green and, as far as I am concerned, that could willingly be brought into the Measure. My real point in moving the Bill at this stage is that it is surely time that the Government faced up to the fact that something should be done on this issue.

Perhaps something should be said on the other issue, that of the Official Secrets Act, which is not altogether in the same state as it was when the similar Measure was before the House on the last occasion. Hon. Members will be familiar with the way in which the Official Secrets Act, 1911, was passed. We have today done some quick work with two Bills which have passed through this Chamber. However, we have by no means equalled the record of 1911.

The Official Secrets Act was brought in on a hot August afternoon. It occurred on 18th August though this may be hard to believe. The summer of 1911 was the hottest of any summer in the 20th century. The Measure went through this House—not only on Second Reading but in Committee, on Report and to complete its Third Reading—to the extent of only eight columns of HANSARD. That is the amount of attention that was given to the Official Secrets Act in 1911, under a Liberal Government. It is not a Measure which one can say ever received a great amount of consideration. Indeed, it is fair to say that it is not a Measure of which those who originally drafted it would be very proud.

The Act is drafted in the widest and vaguest terms. As has been frequently pointed out, it makes almost anybody liable to almost any offence. It has recently been stated that there are only two legislative enactments in the world in which it appears that anyone being accused of any anti-State activity must be found to be guilty. One is Section 2 of the British Official Secrets Acts and the other is Article 58(10) of the Soviet Criminal Code.

A number of commentators have fastened on the Act since the recent decision of the Attorney-General to institute prosecution. It is not my purpose to infringe any sub judice rule.

Photo of Mr Jasper More Mr Jasper More , Ludlow

I had expressed the intention of not doing so. But the right hon. and learned Gentleman will be aware of the views which have been expressed in a recent leading article in The Times, which said that if the Act was strictly enforced there could scarcely be a civil servant, and certanly no member of the Government, who would not be prosecuted under it. Reading the announcement today of a statement by the right hon. Gentleman the Prime Minister about the Gulf of Aqaba, I wonder whether he may or may not be prosecuted under the Act which, as far as I can see, applies to any person.

The article in The Times said that the Attorney-General had a discretionary power. This, of course, refers to that peculiar provision of the Measure which brings in the Attorney-General's fiat. Other commentators have challenged that view. They have said that, so far from being a discretionary power or a judicial decision, the Attorney-General is really making a political decision when he acts under this Statute. It would be interesting to have his comment.

The object of the Bill is to remove all this doubt, which must be very unsatisfactory to the right hon. and learned Gentleman, and put the whole test of the Act on the question of public benefit or public justification. What disturbs people more about the Act is not the cases which are prosecuted but those which are not. I cite the recent case of an employee in the Ministry of Health who wrote articles in the Spectator and in the News of the World and was proceeded against by his own Department and sacked. In reply to Questions from me, the right hon. and learned Gentleman said that he had no intention of prosecuting the two newspapers, although surely they were the more guilty.

This does suggest that there is a tendency under the Act to go for the soft culprit and not for the real culprit. It can be fairly said that there is great and growing disquiet about the way in which these things have been operated. The Prime Minister produced a White Paper, after the Fulton Committee, called "Information and the Public Interest". It was a fair comment in The Times that it added nothing at all. What I hope will make a useful contribution is the committee which has been set up by my right hon. Friend the Leader of the Opposition under the chairmanship of my right hon. and learned Friend the Member for Epsom (Sir P. Rawlinson) to go into the matter and try to reduce it to a sensible state.

It is with the object of seeing that the question is not allowed to rest in its present unsatisfactory state that I ask for the Bill to be given a Second Reading.

2.14 p.m.

Photo of Sir Elwyn Jones Sir Elwyn Jones , West Ham South

I think that it was Dr. Johnson who said that a second marriage is a triumph of hope over experience. I do not know what he would say about a third attempt to introduce a Bill on this subject. The nature of the attendance in the Chamber is an indication that it has certainly not commanded much support either in the House or anywhere else. I regret to say that, while I admire the pertinacity of the hon. Member for Ludlow (Mr. More), I find the Bill to be even more full of objections than its predecessors.

The Bill concerns in some aspects the delicate but important balance between the interests of the Press, of the Executive and of the ordinary citizen. In my view, the Bill, like its predecessor, would tend to upset the present balance which, I think, on the whole is about right, and would do so by tilting it excessively against the individual citizen in the law of libel. I think that to some extent also, if it became law, it would diminish some of the present safeguards ensuring a fair trial.

A curious feature of the Bill is that, in some of its provisions, it rejects the Amendments which were found necessary in Committee on the Bill sponsored by the hon. Member for Birmingham, Hall Green (Mr. Eyre) and reverts to texts which that Committee found unsatisfactory.

For instance, Clause 11(2) provides that the Bill shall apply to Scotland, but, of course, there are important distinctions and differences between the law and administration of justice in Scotland and the law and administration of justice in England and Wales. To disregard that salient fact, when the previous Bill was amended by the exclusion of Scotland from its provisions, seems remarkable.

Again, there is a difficulty in the very first Clause of the Bill, which proposes that proceedings for contempt of court shall not be instituted except by or with the consent of the Attorney-General. I am touched that the hon. Gentleman should have such confidence in me and other holders of my office.

It reflects the fact, which, I think, is now well known to the people of our country at large, that the Attorney-General, when he makes a decision, albeit in a matter of contempt of court or under the Official Secrets Act, does so in a quasi-judicial way, considering only the interests of justice and the public interest and, of course, disregarding entirely any political or party political consideration. The Attorneys-General who have preceded me and I myself have been faithful to this doctrine and duty.

However, Clause 1 of the Bill proposes that proceedings for contempt of court …within the United Kingdom shall not be instituted except by or with the consent of the Attorney General. The matter could not be remedied simply by substituting the Lord Advocate for the Attorney General. I understand from my colleagues in Scotland that that would be unacceptable north of the Border.

I am advised that his position is that of the Public Prosecutor. All criminal proceedings in Scotland are brought on behalf of the Lord Advocate. Since proceedings for newspaper contempt are usually based on prejudice to the defence, one can see that there might conceivably be a conflict of interest if the Lord Advocate's consent was always required.

Moreover, in view of the principle of secrecy in pre-trial investigations, which is the practice in Scotland, proceedings for contempt have been much more common in Scotland than in England and Wales. Not only have they in many cases been brought by individuals, but in many of those cases individual complainants have succeeded. The case of Stirling v. Associated Newspapers Limited, in 1960, was an illustration of that.

There are other aspects of the Bill in Clauses 6 and 7 which would create special difficulties in regard to Scotland and make the Bill unacceptable. I do not propose to traverse at length every Clause in the Bill. We have been through all this before, but there are one or two aspects of it to which I think I should refer. I have already commented upon Clause 1. It takes account of what happened in Standing Committee on the previous Bill in that it no longer attempts to define the scope of contempt.

Touched as I am by the confidence it reflects on the holder of my office, I hold the view that it is not right to take away the right of the individual citizen in proceedings for contempt. I observe that the right hon. and learned Member for St. Marylebone (Mr. Hogg) is now occupying his place on the Opposition Front Bench. He may not share the same view as I do, as he himself was pursued by a private individual in regard to contempt—and pursued unsuccessfully.

It is questionable whether the Attorney-General should have the last word in every case, which is what the Clause proposes. Suppose, for example, complaint was made about some comment on proceedings in which a Ministerial colleague of the Attorney-General, as representing the Crown, was a party. Would the complainant be entirely satisfied with the Attorney-General's decision not to act? It would be much better if the Attorney-General could say, "I do not think that your complaint justifies me in instituting proceedings for contempt, but you are welcome to test my opinion by taking it to court yourself and persuading the court that my view is wrong".

It is the case, I think, that private proceedings would not take place very often. It is an expensive business. In practice, in all the cases—and there have been quite a number referred to me since I have been Attorney-General—except one, where I thought proceedings ought to be brought against a newspaper and the newspaper in that case admitted its fault, my refusal to take proceedings for contempt has ended the matter.

I nevertheless feel that a situation could arise where a refusal by the Attorney-General of the day, whoever he may be, could leave a sense of grievance. Therefore, the present arrangement should stand where, in practice, on the rare occasions when contempt proceedings are brought they are brought by the Attorney-General. There may conceivably be a case in an emergency situation where the complainant should be able to go straight to the court himself.

As to Clause 2, in regard to a repetition of the defamatory matter, there is no need for the Clause. I earlier expressed the view in discussion of the matter that where there was a genuine newspaper campaign to expose a scandal mere repetition of the words complained of could not amount to contempt. I am glad that my views were confirmed in a judgment of the Court of Appeal in Thomson v. Times Newspapers, in which Lord Justice Salmon said that he could not think why the fact that the plaintiff had issued a writ for libel should preclude the defendant newspaper…from making any further comment about him.…It was a widely held fallacy that the issue of a writ stifled further comment, but I know of no authority which supports the view that further comment would amount to contempt of court. Once a newspaper had justified, and there was some prima facie support of justification, the plaintiff could not obtain an interlocutory injunction to restrain the newspaper from rebutting the matters complained of.… It seemed equally obvious that no other newspaper which sought to do so had committed contempt. In my view, that judgment indicates that there is no need for Clause 2.

Clause 3(1) corresponds with Clause 4 of the Bill introduced by the hon. Member for Hall Green. Although its purpose is sound, and I approve of its purpose, I pointed out on the Second Reading of the former Bill that its drafting could do with a great deal of improvement. We went to some pains in Committee to achieve an improvement. It may carry weight with right hon. Gentlemen opposite when I say that the improvement had the enthusiastic support and approval of the hon. and learned Member for Northwich (Sir J. Foster), and, indeed, of the then promoter of the Bill. For some reason best known to himself, the hon. Member for Ludlow has seen fit to reject the work of the Committee in respect of Clause 3(1). I think that that can only reflect the view that his heart is not really in his Bill.

Photo of Mr Jasper More Mr Jasper More , Ludlow

That is completely wrong. The suggestion that the heart of an hon. Member cannot be in a Bill which he has presented to the House in three successive Sessions is surely hardly tenable.

Photo of Sir Elwyn Jones Sir Elwyn Jones , West Ham South

If the hon. Member's heart is in his Bill, his mind did not run much to the Bill. After all the painstaking effort we managed to amend the Clause in a way which might have made it a modest little piece of reform of the law of libel, but the hon. Member has thought it not worth while to retain it in his Bill.

Photo of Mr Jasper More Mr Jasper More , Ludlow

The right hon. and learned Gentleman is confusing two Bills. This is a separate Bill from that which was introduced by the hon. Member for Hall Green.

Photo of Sir Elwyn Jones Sir Elwyn Jones , West Ham South

Yes, of course it is a separate Bill, but Clause 3(1) was in the original text of the Bill introduced by the hon. Member for Hall Green. It was rejected by the Committee, but the Amendment which was the product of much labour took its place. However, I do not want to quarrel with the hon. Member, whose zeal in this matter I of course respect.

Clause 3(2) is new, but it is wholly unnecessary. It would seem that the hon. Member, although I do not criticise him for this in view of the considerable volume of law reform for which the Government have been responsible, has overlooked the Civil Evidence Act, which implemented the Fifteenth Report of the Law Reform Committee. The Clause provides a defence of justification where the words complained of impute the commission of a criminal offence and the plaintiff at the time of publication has been convicted of that offence and the conviction has not been set aside. This situation is already provided for by Section 13 of the Civil Evidence Act. Clause 3(2), therefore, is quite unnecessary as that is the law at present.

Clause 4 reproduces Clause 5 of the earlier Bill, but the law already gives sufficient protection to reports of foreign proceedings in circumstances where they were matters of genuine public interest.

In my view, the law on this matter is pretty well right as it is. As I explained on an earlier occasion, the law is set out in Webb v. The Times Publishing Company, in which it was stated that there is qualified privilege if the subject matter is of legitimate and proper interest to the English newspaper-reading public. In the words of the learned judge, there must be …a legitimate and proper interest as contrasted with an interest which is due to idle curiosity or the desire for gossip. Idle curiosity and gossip do not warrant the protection which is afforded by qualified privilege.

Clause 5 reproduces Clause 6 of the earlier Bill. Here again, the hon. Gentleman has thought it right to reject the work of amendment which took place in regard to the earlier Bill to cure what were clear drafting difficulties.

Photo of Mr Jasper More Mr Jasper More , Ludlow

I hope that the right hon. and learned Gentleman will not accuse me of rejecting or discounting things. My Bill and that of my hon. Friend the Member for Birmingham, Hall Green (Mr. Eyre) both came to grief. Surely all we are doing now is starting again. It was not my wish that it should be done in this way. This is the situation in which we have been placed by the Government.

Photo of Sir Elwyn Jones Sir Elwyn Jones , West Ham South

The hon. Gentleman has introduced the Bill. I should have thought that he would have applied his mind at least to remedying in the Bill the defects which were found in the text of the previous Bill. That would not have involved a great deal of initiative on his part. The object of Clause 5 is unobjectionable, but its defects in drafting are considerable and were amended in an earlier stage of the previous Bill.

Clause 6 reproduces Clause 7 of the earlier Bill, but this Clause is wholly unacceptable. It appeared in an earlier Bill, but was withdrawn at the instance of the then promoter, on the ground that he had been convinced that it would be better to leave questions of malice to the jury. I agree with that proposition. In my view, juries are admirably constituted to decide questions of malice. I am comforted in that reflection by the fact that that view has the support of the Master of the Rolls, the present Lord Chancellor and his immediate predecessor—

Photo of Sir Elwyn Jones Sir Elwyn Jones , West Ham South

—and that of my hon. Friend the Member for Harrow, East (Mr. Roebuck), a distinguished journalist to whose views the House will pay most careful attention.

Clause 7 appears to be a compromise between the corresponding provisions of the Bill introduced by the hon. Member for Hall Green, which provided that damages should be assessed by judges rather than by juries, and the arguments I advanced against that Clause in Committee. It purports to give the Court of Appeal the same power to vary awards of damages made by juries as it has to vary awards made by judges. The real issue is: do we want juries to decide the question of damages, or a single judge?

My view is that, here again, juries are probably the appropriate body to decide the matter. Juries are essential in serious criminal cases and of great value in civil cases affecting the character and reputation of the citizen. The right to have one's character valued by one's peers—by one's fellow countrymen—is not something to be lightly surrendered.

The fear has been expressed in some quarters that juries tend to award unreasonably high damages against newspapers because they are prejudiced against them; but I do not believe that this fear is justified. My view is that a jury is as fair an assessor of damages as anyone. Juries are far better educated than they were. They are drawn from a wide range of the community. It can safely be said that their standard of intelligence and judgment is now higher than it has ever been.

In addition, the Court of Appeal has the power to set aside verdicts where awards of damages are utterly unrelated to the needs of the case. In fact, the Court of Appeal has on occasion gone a very long way towards indicating what in its view a second jury should award, even though it has not substituted its own assessment as the proper amount. Accordingly, Clause 7 is, in my view, as unacceptable as was its predecessor.

Clause 8 is the Clause dealing with one aspect or the Official Secrets Acts. It seeks to provide a new defence to those charged under Section 2(2) of the 1911 Act with the receipt of information supplied in contravention of the Act. The House will note that the Clause does not seek to affect the liability of those who supply the information in contravention of Section 2(1). The defence that it seeks to provide for the recipient of unauthorised information is that the receipt of the information was not prejudicial to the public interest.

It follows that the question whether the public interest has been injured or prejudiced would be a matter to be determined by a court—by a judge. That is not an issue which can be satisfactorily determined in that way. It is not a justiciable issue at all. I said this when the previous Bill containing a similar Clause was in Committee: It is not a matter of law, nor necessarily is it a matter of weighing up facts relating to a particular incident. It may often raise political, diplomatic or international issues upon which the judge ought not to have to adjudicate. It may raise issues more suitable for deliberation in Parliament than at the Old Bailey."—[OFFICIAL REPORT, Standing Committee C; 16th April, 1969, c. 49–50.] The courts have rightly regarded public policy as an unruly horse and have been extremely reluctant to pronounce upon it. To ask the courts to determine matters which I submit are properly for Parliament is to bring the judges into politics. For that reason, I advise the House, as I did when the previous Bill was before the House, that this Clause should be rejected.

My conclusion is that this Bill is even less satisfactory than the Bill which was before the House on Report a year ago, and I am not surprised that it has failed to attract support.

2.38 p.m.

Photo of Mr Peter Rawlinson Mr Peter Rawlinson , Epsom

When first speaking on the Bill the Attorney General quoted Dr. Johnson's comment on marriage and applied it to my hon. Friend the Member for Ludlow (Mr. More). Dr. Johnson, however, would have approved of my hon. Friend's pertinacity in proceeding with this Bill or with Bills of another kind supported by others of my hon. Friends. I disagree with the Attorney-General, because I believe that changes in the law are called for, for different reasons, in respect of each one of the three matters dealt with in the Bill; namely, contempt of court, defamation and official secrets. How these changes can be best effected is a matter for debate.

Therefore, when the Attorney-General gives the impression—and I do not mean this in a personal sense—that we are entitled to be complacent about the state of the law in these three matters I think he is in error. It is of great importance to a society like ours, which should be an open society, that matters should be kept secret only when they are of the gravest importance, and there should be the power and right to comment and criticise with the greatest of freedom. There must be a balance, and the present law imposes such a balance between a person's right to commentate and the right of another to have his reputation not wrongly traduced.

My hon. Friend referred to the committee in which I am at present engaged in a study of these three matters. I do not disguise from him the difficulties that surround them and that my greatest anxiety is over the difficulty of how to deal with official secrets, which are covered in Clause 8. I have definite views about defamation and contempt of court, but the matter of official secrets is one of the greatest difficulty.

Clause 1 covers contempt of court. What should be eliminated but has not been, even though we welcomed the statement of the law by Lord Justice Salmon in Thomson v. The Times is the element of uncertainty. The commentator does not know when he makes the comment whether or not he may be in danger of contempt of court. We should introduce into the law a degree of certainty so that a curtain can be brought down, as it were, after which the commentator knows that there is no right to comment if comment would deter witnesses from giving evidence or might influence the court.

No one—least of all journalists—wants to see trial by newspaper or television. What everyone wants to see is proper trial with proper evidence given to the court. But it is wrong when a newspaper is engaged in one of its most important public roles, that of exposure, probing and investigating, that it should be hampered and restricted, as I think news- papers are now, by the uncertainty of the law of contempt.

However, whilst I want to see changes I do not believe that the Bill deals with the matter in Clauses 1 and 2 in the way in which I feel that the law needs to be changed. For instance, it may well be said that once a man has been arrested, or the summons or complaint has been issued and served, comment must be restricted and must avoid anything that would deter witnesses or influence the court. But only then could a pending criminal case be affected. In a civil action I think it highly unlikely that in any circumstances a judge would be so influenced that the course of justice would be affected by any comments when he thereafter tries the case alone.

However, when a case is to be tried by judge and jury the order for such a trial should bring to an end the unrestricted right to comment, and thereafter the commentator must be on guard against deterring witnesses or influencing the court. I should like the publisher and those engaged in publication to be afforded certainty so that they know where they stand, so that they know when they can comment and when they must cease to comment. Clauses 1 and 2 are not adequate for that.

I now turn to the law of defamation. It is some years since Lord Diplock in the case of Slim v. Daily Telegraph opened his judgment by commenting about the law of defamation. Those who practise in this branch of the law know only too well how complex it is and the pitfalls into which even the lawyer can so easily fall if he is not expert in it. It has become so complicated that it calls for change and reform. As I have said before, most of it is lawyers' law, in the sense that it has been made mostly by the judges. This House is usually to blame for the complexities of legislation, but here it is lawyers who have made it so complex that difficulties are created. Where we have complexity we also get uncertainty, and then there is unfairness and a restriction of the right of free expression, which is a characteristic of the present law of defamation.

There should be simplicity over the defences to an action for defamation, which should perhaps be divided into two—justification, which is that what was said or written was true, or privilege. That privilege would contain the absolute privilege of reporting anything said in this House or in a court of law and the extension of qualified privilege to bring within it the present defence of fair comment.

I believe that it would be the general view that if a man writes about something in the public interest honestly and with good faith, has taken reasonable care to ascertain the facts and believes them to be true, and if the comment could reasonably be made upon those facts, that should be a defence to a claim for defamation. If we could obtain simplicity by bringing this defence under the umbrella of qualified privilege, which itself is only a part of privilege, we should eliminate all the complications arising from the defence of fair comment and the element of malice which must be introduced.

I agree with the Attorney-General about the position of the jury. It is right that it should be retained to make a decision where a man says that he has been defamed. The existence of a jury is a protection to newspapers. Potential plaintiffs know that there is a jury and the risks which may be involved, the great range that there may be in the damages given by a jury. It may sound paradoxical, but this is regarded by those with experience of advising newspapers as a protection. It is interesting to note that in one of the most recent libel actions damages of about £40,000 were given but not against a newspaper; a newspaper was not involved.

The jury should be retained, but we must ensure that the law is sufficiently simple and clear to permit the judge to direct the jury on the law and for it to understand what it is about. Part of the difficulty is that sometimes juries do not know what they are about.

Again, I think we should consider whether or not—this applies to the whole field of civil wrongs—we should examine carefully whether the courts should have argument addressed to them about the quantum of damages. I believe that a good deal of work can and should be done in this respect and that it should not be neglected.

I turn to the third matter in the Bill—official secrets. As my hon. Friend said, Section 2 of the 1911 Act is more akin to Article 58 of the Soviet Criminal Code. Section 1 of the Official Secrets Act is directed towards the deliberate passing of information which is intended and calculated to be of advantage to an enemy, and I would not have thought that anybody in this House would regard the principle behind that section as other than perfectly correct. That must be an offence. It is a matter which should be dealt with by the criminal law.

However, it is difficult to believe that the Minister of Housing and Local Government has any official secret or that the Department of Health and Social Security can have secrets. Of course, they have confidences, like any other person. Whether it be a large company or a small shop or an individual, everybody has his secrets and confidences which he does not wish to have betrayed. But can it be said that these matters are official secrets which bring with them all the sanctions of the criminal law if they are betrayed?

On the other hand, in other Departments of State there can be secrets the betrayal and passing on of which and the receipt and publication of which could, in another sense, affect the security of the State, the wellbeing and the order of the State, or, indeed, the economic interests of the State. Section 2 says that if I am told anything by anybody who holds office under the Crown and I pass on that information, I am guilty of an offence. We know perfectly well that many people have been guilty of an offence under Section 2 of the Official Secrets Act; but the Act left the widest discretion and there was a requirement to have the leave of the Attorney-General before a prosecution took place. For that reason there are few prosecutions. However, it is not right that in our system of law we should create a situation in which offences cannot be properly prescribed and where there can be such a wide area of discretion.

I do not pretend that it is at all easy to define what is a secret, what is a matter which should be kept within the knowledge of those who have responsibility in government and which they have the right to retain, failing which the criminal law is invoked. In other matters there are the disciplines of the Civil Service and the disciplinary powers which can be exercised. The civil law can be exercised, in the same way as the chemist in I.C.I. or the scientist in British Petroleum who betrays company confidences or secrets can have the civil law brought against him—and, in addition, of course, there is the sanction of dismissal.

Photo of Mr Jasper More Mr Jasper More , Ludlow

My right hon. and learned Friend will have taken cognisance of the fact in the deliberations of his own committee that apparently in the United States they seem to manage very well without an Official Secrets Act at all.

Photo of Mr Peter Rawlinson Mr Peter Rawlinson , Epsom

But they have classified information, do they not? That means that somebody has to classify it. Therefore, a Minister is doing the classification. I know that the system is different from ours. One should examine—in fact, one has examined—these various matters. One will take into account what is behind my hon. Friend's intervention. But I cannot conceal from the House that I feel the gravest disquiet in permitting a situation to arise whereby information can freely be given and published about categories of matters which may not directly deal with the security of the State but do affect the life and order of the State.

This is the difficulty. I believe that a change has to be made because I do not believe that Section 2 is tolerable in its present form. It has lived a chequered life and the time has come to change it. But, with respect to my hon. Friend, I do not believe that in Clause 8 he has met the problem or dealt with the mischief which is inherent in Section 2. Therefore, while I congratulate him on the gallantry of his attempts and on his pertinacity, and while welcoming the fact that he continues to bring before the House these matters which are of great public importance, I have very grave disquiet about the method by which he has sought to deal with what I consider to be substantial problems.

2.57 p.m.

Photo of Mr Niall MacDermot Mr Niall MacDermot , Derby North

I agree with my right hon. and learned Friend the Attorney-General that this Bill is too riddled with defects for it to be right for the House to give it a Second Reading.

I wish to speak shortly, in view of my right hon. and learned Friend's remarks on Clause 8. I agree with everything which the right hon. and learned Member for Epsom (Sir P. Rawlinson) said about this Clause, both as to the unsatisfactory nature of the present law relating to official secrets and the very great difficulty that faces anyone who tries to amend it and put something better in its place.

I was, however, a little concerned at what was the main reason which the Attorney-General gave in advising the House that this would not be an acceptable Clause. If I understood him correctly, he felt that it was not right to put upon the courts—and, in particular, upon Her Majesty's judges—the task of deciding whether or not publication of a particular matter was in the public interest. He expressed the view that that would be bringing the judges into politics and requiring the judges to decide matters which were more properly decided by this House.

My anxiety is this. Not long ago we discussed the Bill introduced by my hon. Friend the Member for Birmingham, All Saints (Mr. Walden) on the right of privacy. That Bill received extremely wide support in this House, and my hon. Friend withdrew it only because of the Home Secretary's announcement that he was setting up the Younger Committee to investigate this whole subject. It was a crucial part of that Bill, which was founded on a report of Justice, that among the defences which should be open to newspapers would be the defence that publication of the matter in question was shown to be in the public interest. The actual drafting of my hon. Friend's Bill went even wider and suggested that the defence should be open to a newspaper that it had reasonable grounds for thinking that publication was in the public interest. I think that went too far.

In any event the point which was a crucial part of the Bill was that the issue should be justiciable—that it should be able to be tried before the courts. If we accept the idea which has been expressed by my right hon. and learned Friend today I think that we strike a grave blow at the possibility of introducing a law of privacy into this country at all, and I should be very sorry if that were to be the position. It does not seem to me prima facie to be an intolerable burden to put upon the courts.

The courts are not to be expected to express a view whether a matter which is published is either right or wrong. They are merely asked to express a view whether it is right that it should be published. In other words they are asked to express a view whether the interests of freedom of speech should prevail over any other interest—in the case about which I am concerned, the interest of the new right of privacy which I hope will be established in our law, and in the present case the interest of protecting from publication official secrets.

It seems to me that this is a matter which a court is perfectly well able to weigh and decide. It is not so very far away from the matter which courts already have to decide now in the law of defamation when considering the defence of fair comment and whether or not the matter is fair comment on a matter of public interest. In those circumstances, the courts have to decide whether or not the matter in question is one of public interest.

So, while not in any way wishing to dissuade the House from following the course which my right hon. and learned Friend has recommended, I hope that my right hon. and learned Friend and others will consider further the particular reason which he has given for rejecting the Bill and keep open as far as possible the question of whether matters of this kind can properly be decided by the courts.

Question, That the Bill be now read a Second time, put and negatived.