Official Secrets

Part of Prayers – in the House of Commons at 9:36 am on 22 July 1988.

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Photo of Hon. Douglas Hurd Hon. Douglas Hurd , Witney 9:36, 22 July 1988

Of course. It is sensible to start with the principles, and that is what I intend to do.

First, our proposals apply only to official information, by which is meant information that is held by a Crown servant or Government contractor in the course of his duties. If the information disclosed cannot be traced back to a Crown servant or Government contractor, it is not covered by our proposals. It might have come from a completely different source. If, for example, another Government's information was leaked directly by an employee of that Government, it could be published in this country even though it had also been provided to the United Kingdom Government in confidence. Although the information disclosed was identical to the information held by the Government, it would not be official information and our proposals would not apply to it. Secondly, our proposals apply only to the publication, without authority, of the information that we propose to protect. A great deal of information, even in the subjects covered by our proposals, has been and will continue to be made known with authority of Parliament and to the public.

Of course it will not be an offence to disclose information in all categories without authority. Our central objective is to narrow the law so that it applies only to disclosure without authority of official information which is likely to give rise to an unacceptable degree of harm to the public interest. The first step towards defining such disclosures is to identify the areas of information in which harmful disclosures might be made. We have identified six in the White Paper. For reasons given in the White Paper, we believe that none of the information in two of the areas can be disclosed without the likelihood of unacceptable harm to the public interest. In a third, information useful in the commission of crime, disclosure is by definition harmful. In proving, as they would have to, that the information is in this category, the prosecution will be proving that its disclosure is harmful.

In the remaining three categories—the particularly sensitive areas of security and intelligence, of defence and of international relations—a distinction has to be drawn between information which cannot be disclosed without the likelihood of harm to the public interest, and information which can—the test of harm. That distinction can be made only in relation to a particular disclosure. The task of making the distinction we propose to place on the jury. To make that possible, we propose to define clearly the specific forms of harm to the public interest to which the disclosure of information in each category might give rise.

This is a considerable change from the proposals that the Government put forward in 1979. Under those proposals as under the Labour Government's proposals the question whether the disclosure of information relating to defence or international relations was harmful to the nation would have been decided by a Minister. Of course, we looked hard at the point and retraced the whole history of the idea of ministerial certificates. We decided, having done that, that ministerial certificates had no future. Some of my right hon. and hon. Friends, I know, fear that we may have gone too far in that direction. It is true that we are setting the prosecution a sizeable task but not one which in normal circumstances should provide insurmountable obstacles.

There is always a risk of a jury occasionally bringing in a perverse verdict, but that is true now and it would be true even if we had retained ministerial certificates. The jury will always have the last word. No one is suggesting that Ministers in place of a jury should decide whether an alleged offender is guilty or innocent. Since that is so, it is better that the jury should make up its mind on the basis of all the evidence than that it should feel that certain relevant matters are being withheld from it. We believe that it is right in principle and practice that the question of specified harm to the public interest should be determined by the jury.