Michael Havers – 1978 Speech on the Official Secrets Act

Below is the text of the speech made by Michael Havers, the then Conservative MP for Wimbledon, in the House of Commons on 15 June 1978.

The subject that we are to debate for the next three hours was last debated in June 1973. I make it clear at the outset that I am not concerned with Section 1. Clearly, acts of spying must be made subject to heavy penalties. The only comment I would make is that, if the proposals that we are putting forward are accepted, it would be a very good thing to call the Official Secrets Act, after Section 2 is taken out of it, a better name—for example, the Espionage Act.

Section 2 is the section which causes anxiety. The history of how Section 2 came into being bears a little examination. The first Official Secrets Act was in 1889. That dealt with spying and breaches of official trust. Crown servants or Government contractors, if under contracts they were obliged to maintain ​ secrecy, were forbidden to pass information.
Between 1909 and 1911 there were a number of leaks of Government information to the Press. Therefore, the authorities at that time decided that it was necessary to extend criminal sanctions to the receiver of confidential information, whereas previously they had been directed only at those who gave it. In 1911 the Act was passed, and it made it an offence to communicate or to receive classified information. All kinds of official information were covered by Section 2, however unimportant or trivial, without the need to prove any unlawful intent.

On 18th August 1911 the Bill passed through all its stages, and Clause 2 was not mentioned in the debates. The Attorney-General of the day, Sir Rufus Isaacs, said that there was nothing novel in the principle of the Bill. Second Reading took up three columns of the Official Report, Committee stage one column and Third Reading four columns, during which there was argument whether an amendment should have been accepted on Report. That was the way that the House approached the problem. We have had the misfortune ever since, and particularly since the last war, of having to manage the law as it was created in 1911.

The Press made no comment, although it had commented on previous Bills which the Government had sought to bring forward but had to abandon. That may have been because the Bill went through the House at the time of a constitutional crisis over the Parliament Bill and attention was distracted more by that than by what appeared to be a slight tightening up of the legislation of the previous century. The House was no doubt also worried at that time about the increasing threat from Germany and anxious that the espionage provisions in the new Section 1 should become law as soon as possible. Clearly, there was no real understanding in the House of the enormous scope covered by section 2.
Section 2 has been described as the “catch-all” section. It is extremely well set out in the Franks Report at page 14, paragraph 17:

“The main offence which section 2 creates is the unauthorised communication of official information (including documents) by a Crown servant. The leading characteristic of this ​ offence is its catch-all quality. It catches all official documents and information. It makes no distinctions of kind, and no distinctions of degree. All information which a Crown servant learns in the course of his duty is ‘official’ for the purposes of section 2, whatever its nature, whatever its importance, whatever its original source. A blanket is thrown over everything; nothing escapes. The section catches all Crown servants as well as all official information. Again, it makes no distinctions according to the nature or importance of a Crown servant’s duties. All are covered. Every Minister of the Crown, every civil servant, every member of the Armed Forces, every police officer, performs his duties subject to section 2.”

The stock answer to the criticism which is well set out in that paragraph in the report is that no prosecution can take place without the leave of the Attorney-General and that he will prosecute only where important breaches have occurred. That is right, but it still leaves a measure of uncertainty. In our view, any criminal statute should be certain. For example, journalists are entitled to know where they stand. It is not enough to say “All right, technically you will be committing a criminal offence but you are most unlikely to be prosecuted.”

The area where secrecy and confidentiality should be protected must clearly be defined and limited to the extent where it is generally acceptable and compatible with open government. A balance must be struck where the public interest is protected in both ways. I mean by that that the public interest requires that matters of defence, international security and Cabinet minutes, to take just a few examples, may need to be safeguarded against public disclosure. But the public interest also requires that there is no misuse of secrecy to cover up errors or bungling or to avoid criticism.

In this short debate I do not want to go into the area of freedom of information. I notice that the hon. Member for Newham, North-West (Mr. Lewis), who is very concerned with that aspect, is present. The phrase “freedom of information” is misleading when compared with, for example, freedom of speech or freedom of choice. Freedom of information means the extent to which the public should have the right of access to official information—that is, the balance of public interest. I understand that Justice will shortly be publishing a report which will make a substantial contribution to this aspect of the subject.

In the meantime, it is worth noting that in the United States and Sweden, for example, attempts to provide effective freedom of information legislation have proved more difficult than was anticipated. The first Freedom of Information Act in the United States became known as the Denial of Freedom Act. The Swedish Act contains 43 sections of exceptions to the freedom of information rules—a huge number of exceptions. We must also remember that both those countries have written constitutions, so that judicial intervention in establishing the rights of the citizen is much greater than in the United Kingdom. Any discussion of freedom of information must be in the context of the establishment of a system of administrative courts.

There is no doubt that the Franks Committee made a valuable contribution to the debate about Section 2. The committee was set up in April 1971, honouring the pledge of the Conservative manifesto for the 1970 General Election.

Although there are three volumes of oral and written evidence, the committee managed to produce its report by September of the following year.

In June 1973 the then Home Secretary, now Lord Carr, accepted the report in general, but the Conservative Government did not remain in office long enough to implement it. In March 1974 the present Government took office. In April of that year the then Prime Minister, the right hon. Member for Huyton (Sir H. Wilson), said of the Franks Report:

“I hope to give an answer … in a shorter time than the previous Government”.—[Official Report, 2nd April 1974; Vol. 871, c. 1089.]

We are now in June 1978. In spite of those brave words we had to wait until November 1976, when the present Home Secretary made a statement to the House. He accepted the Franks Report with certain reservations about the categories of protected information. He promised legislation as soon as possible.

My right hon. Friend the Member for Penrith and The Border (Mr. Whitelaw) asked for a White Paper or a Green Paper. That was agreed by the Home Secretary. It is now 18 months later and we are still waiting. In Opposition time we have, at last, another debate on this important subject. It is important to the Government, the Civil Service, all servants of the Crown, the public and the Press. I should have preferred a full day’s debate in Government time after the White Paper had been published so that we would have an opportunity of learning the Government’s intention. But that possibility looked so remote that we felt that we had to initiate the debate.

We think, as we always have thought, that the Franks Committee was in general right. We accept that Section 2 of the Act is outdated and far too widely drawn. We agree that certain classes of information should be protected, as Franks recommends. This is summarised well in paragraph 276 of the report, which states:

“a. is classified information relating to defence or internal security, or to foreign relations, or to the currency or to the reserves, the unauthorised disclosure of which would cause serious injury to the interests of the nation; or
b. is likely to assist criminal activities or to impede law enforcement; or
c. is a Cabinet document; or
d. has been entrusted to the Government by a private individual or concern.”

There is another category in Franks with which we agree—where official information has been used for private gain.

That is another form of corruption.

We have one major disagreement with the Franks Committee. It involves the policing and enforcement of its recommendations. Franks recommends that the areas that should be classified should be classified by regulation made by the Secretary of State, this also involves declassification. In paragraph 8 of the recommendations on page 104, it is stated:

“Before a decision is taken whether to institute a prosecution for the disclosure of classified information within one of the three categories, there should be a review of the classification of the information which had allegedly been disclosed without authority. This review should be carried out by the responsible Minister himself. He should be required to consider whether at the time of the alleged disclosure that information was properly classified, secret or above or defence—confidential, in the sense that its unauthorised disclosure would cause serious injury to the interests of the nation. If he was not satisfied on this point, then no prosecution would be possible. If he was satisfied, he should give a certificate to that effect to the court. This certificate should be conclusive evidence of the fact that the information was classified within the meaning of the Act.”

We agree that the Secretary of State should have the power to make the regulations, but we believe that they should be kept under continuous review by a ​ Select Committee and that the matter should be subject to the affirmative procedure.

More important, the review as to whether the classification at the time of the disclosure was the proper classification should not rest with the Minister. That would smack too much of the Minister being judge and jury in his own cause. When any prosecution is brought for the disclosure of information, the question of whether the information was correctly classified at the date of disclosure should be considered not by the Minister responsible but by an independent committee.

We suggest that that independent committee should be two Privy Councillors presided over by a Lord of Appeal in Ordinary. The defendant should have the right to make representations to the committee, although not, perhaps, appear before it. That view is supported by Lord Rawlinson, who was Attorney-General at the time when the Franks Committee reported.

It would be feasible for the Minister to provide the information which would enable the independent committee to form a view about whether the classification was correct. It would be similar to the committee of “three wise men” who advise the Home Secretary when he is deciding whether to deport an alien. A safeguard of this kind would satisfy Fleet Street and the general public that the information was or was not properly classified and would avoid allegations of a cover-up by the Department or Minister.

If our proposals are accepted and form the basis for a new Official Information Act in place of Section 2, the criminal law will be used only to protect information the disclosure of which would really be against the public interest. Any potential defendant would have greater safeguards than exist under the present law and under the Franks proposals.
It is not a question of open or closed government. If the balance can be fairly struck and impartially checked, the public interest is protected in every way. Our proposals are a realistic and responsible approach to the problem and could quickly be enshrined in our law. We hope to have the opportunity to do that in the near future.