Official Secrets Act 1989 (Prescription) (Amendment) Order 2007

I add my congratulations to those already offered to the Minister. I am pleased to see him in his place, and I am very pleased to see that he is still dealing with Welsh affairs, which I know from my previous incarnation he handled sensitively and with great talent. I hope your Lordships, particularly my fellow countrymen who are eagerly awaiting the final matter today, will forgive me if I take some time on this order, because official secrets is a sensitive area, and it is necessary to fire something of a shot across the bows of the new Ministry of Justice. All Governments love secrecy. I remind your Lordships that it was the Liberal Government of Mr Asquith who introduced the Official Secrets Act 1911, but they included in it a public interest defence; that is, it would be a defence to a prosecution that a disclosure had been made in the public interest. However, in 1989, largely due to the Clive Ponting case, who your Lordships will recall was a civil servant who had leaked details of the course of the ““Belgrano”” at the time of the Falklands war and revealed that it was heading out of the exclusion zone and not into it as had previously been said, the Official Secrets Act was amended and the public interest offence was removed. One thing introduced at that time, among others, was the removal of a defence for newspapers. Under Section 5 of the 1989 Act, it was made a specific offence for newspapers or journalists to publish secret information that had been leaked to them by a Crown servant in contravention of Section 3 of the Act. Therefore, under pressure, it was a Conservative Government who tightened things up. Recently, following the Shayler decision, to which I shall refer later, the Intelligence and Security Committee revealed in its report for 2005-06 that the Home Office had bid for a legislative slot to amend the 1989 Act so as to remove the common law defence of duress of circumstances in order to address unauthorised disclosure by members or former members of the intelligence and security agencies. Indeed, the Government have said that they intend to remove the defence of duress of circumstances in order to clamp down on the increase in unauthorised disclosures by members and former members of the agencies and to increase the jail sentence. Mr Blunkett, the then Home Secretary, said that he wanted to place a gag on blabbers. That is perhaps an easier way of understanding the Government’s intention. I turn to the matters with which we are concerned here. The Nuclear Decommissioning Authority is, it says, an organisation responsible for managing the clean-up of Britain’s civil nuclear legacy. It is a complex task, costing many billions of pounds and involving a wide range of expertise, and it will last for well over 100 years. What sort of secrets is it seeking to maintain? There are areas—for example, leaks from nuclear installations—where one can envisage that there would be a considerable public interest in disclosure. There has already been substantial publicity in Scotland about leaks from the Dounreay installation. Another important area for consideration is the transport of nuclear materials around the country by train. There have been accidents and concern has been expressed in many quarters. Therefore, it is not likely that there will be agreement over imposing what is essentially a criminal gag on everyone working in that industry or that particular organisation. We do not oppose the order but we want to call attention to the fact that there are instances where the public interest may well be in the disclosure of things that are going on within that industry which the industry might well wish to conceal. As I said, we do not oppose the order but we draw attention to its implications. The reference in the order to the Independent Police Complaints Commission results from the leaking of information concerning the death of the Brazilian, Jean Charles de Menezes. Your Lordships will recall that the initial explanation for the shooting of that very unfortunate man was that he had leapt over a barrier, run down the stairs and shown signs of being a considerable danger when he was shot. It came to the attention of an employee of the Independent Police Complaints Commission, which looked into that shooting, that that was a false picture and that the statements that had been obtained by the police were to the effect that the Brazilian electrician was already being restrained by armed officers when he was shot seven times in the head, that he had not run away or vaulted over the barrier and that he was not acting in any suspicious way. It was as a result of that that the Leicestershire Constabulary was asked to conduct an inquiry into what had happened. The woman in question was arrested in connection with the unauthorised disclosure of IPCC documents and the person to whom she disclosed them, an ITV news editor, was arrested and charged with theft. Then, as happened on a number of previous occasions, the prosecution was dropped. Your Lordships will recall the case of Miss Gun, which was dropped three days before the trial was due to take place in the Old Bailey. We had a considerable exchange with the former Attorney-General, the noble and learned Lord, Lord Goldsmith, over that. That lady, seeing it as her public duty to ensure that the truth be told, disclosed the matter, and all sorts of things fell upon her head. She was, of course, dismissed from her job. That is, I suppose, how a responsible employer should behave and how the two employers with which we are concerned in this order could behave, without the necessity for bringing criminal charges under the Official Secrets Act. One should understand the background to these orders. On the one hand, with the Nuclear Decommissioning Authority, there are dangers that will exist over a long period of time and the possibility of things going wrong being concealed; on the other hand, with the IPCC, a specific case went all the way to court before it was thought that it should not proceed any further. A review of security within the IPCC was carried out by Mr Bill Taylor. His fifth recommendation was that a specific arrestable offence be created for the unauthorised release of information by a member of IPCC staff in relation to the IPCC role. That was the solution that the review into the security of that organisation put forward. In fact, the outcome was that after consideration, "““the IPCC decided to pursue an alternative strategy involving an amendment to the Official Secrets Act. The Home Office has been asked to include the change at an appropriate opportunity””." This is that opportunity, and that is what is being done today. It is acceptable only on the basis that the defence of necessity, which was outlined by the Court of Appeal in the Shayler case, be maintained. If the Ministry of Justice, the Home Office or whoever is responsible for this comes forward with proposals to remove that defence of necessity, just as the Conservative Government removed the defence of necessity before, I give notice that we on our Benches will strongly oppose any such attempt. I apologise for detaining your Lordships for rather longer than might have seemed necessary, but we are dealing with an important topic.