After that intervention, the noble Lord, Lord Marks, had better watch out for his safety.
I begin by thanking the noble Lord, Lord Marks, one of the co-signatories of Amendment 79, for explaining the arguments behind it with such clarity and so dispassionately. I appreciate that he, along with many others, has invested a lot of time and thought in it, and I am somewhat of a latecomer to this particular party.
I have put my name to this amendment, along with those of the noble Lords, Lord Marks and Lord Pannick, not because I think the Government will accept it without question—clearly they will not—but because the question of whether such a defence should be
available has long since arrived, and it is certainly possible to say that it is almost too late for us to start debating it now.
The noble Lord, Lord Marks, said that the Labour Party’s stance and its inability to whip its members to support this amendment in the Lobby was a shame. I am afraid that I will be the subject of shamefulness as far as the noble Lord, Lord Marks, is concerned, because I will not push this to a Division, and if others do, I am afraid that I will not join them. However, the reason why I think this debate is important is that, as I said before, it has not been had before, and certainly not in relatively recent memory. That may seem illogical but let me do my best to explain.
I realise that, in matters of national security, no Government, of either of the main parties, and certainly not a coalition Government, will cut and paste an amendment emanating from outside the Government. I can see that the noble Lord, Lord Evans of Weardale, and the noble Baroness, Lady Manningham-Buller, are in their places. I know from my time as a law officer, who had from time to time to consider matters to do with the Official Secrets Act, that the security services, as well as the lawyers who work for them, do not initiate prosecutions under the Act unless there is both a clear public interest in a particular prosecution and sufficient evidence to warrant it. It is my experience and clear recollection that they were all strict adherents to the rule of law in general and the provisions of any relevant statutes in particular, and wanted them applied lawfully and dispassionately in every case. In every case I dealt with I had their support and they had mine in ensuring that things proceeded with propriety and that no shortcuts were taken.
I therefore follow the previous debate on the first group and come to this amendment with a high degree of realism and more than academic or theoretical interest, albeit in a spirit of inquiry, to see where the Government’s thinking is on the matter. Clearly, anything that looks as though it may make the lives of those who want to damage our national interests less difficult, or make prosecutions in the right cases more difficult, must be considered with care, and will, at least initially, be likely to alarm those charged with the day-to-day care of our security. However, I hope that the arguments in favour of this amendment have been heard and that, once they have been digested, the Government will take some time to respond as fully and as openly as they can. My purpose today is to provoke that discussion, not to embarrass the Government. Nor is this group of amendments an opportunity to debate Clause 31 and the foreign power conditions, although Clause 31(3) and (6) clearly need careful attention. As I said at the outset, my intention is to raise the public interest issue firmly in Parliament.
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At the moment, breaches of the Official Secrets Act are, to all intents and purposes, absolute offences, as will be future breaches of the Bill when it is enacted. The defendant’s intention or purpose behind the breach is largely irrelevant, save perhaps as to penalty. Once the defendant’s disclosure of the information has been established under the Official Secrets Act and under the elements relevant to this Bill, it is more or less the
end of the question of criminal liability: as often as not, the jury is more or less directed by the trial judge to convict. In most cases, of course, that is how it should be, because traitors disclosing information that undermines national security need to be deterred, or caught and imprisoned. Their activities can lead to the death, or endanger the safety, of our own agents or security and military personnel and HUMINT, as the noble Baroness, Lady Manningham-Buller, clarified a moment ago.
There have not been a great many prosecutions under the Official Secrets Act. When they happen, they are clearly newsworthy. The case of the employee of the British embassy in Berlin is the latest example of the just disposal of a prosecution under the OSA. The proposed public interest defence in our amendment would have been of no help to that defendant. He was paid by the Russians to disclose information which he knew he had no business disclosing. His plea in mitigation that he was an alcoholic depressive cut no ice with the judge. I doubt that any right-minded person would think that his 13-year sentence was a moment too long.
In a very few cases—of which the Berlin embassy case would not be one—the jury’s view of where justice lies makes a nonsense of the law. Some defendants, despite the judge’s clear direction on the law, benefit from what are, in reality, perverse acquittals. The noble Lord, Lord Marks, touched on this. In law, and on the evidence, the defendant is guilty, albeit that the information was disclosed for non-venal reasons. It must be assumed that some juries see the prosecution as unjust, oppressive or unnecessary, or think that the defendant disclosed information that ought to have been in the public domain, or that it demonstrated that the Government were dissembling to the public. Again, I realise the terms of Clause 31, but it seems to me that that is not enough to dispose of these arguments.
As the noble Lord, Lord Marks, mentioned, perhaps the “Belgrano” case is one example of a perverse verdict. It is at least arguable that the defendant in that case did not harm national security by disclosing that the Argentinian warship that was sunk was heading in one direction, when it had been announced that she was heading in another, more threatening one. He might have been able to satisfy the factors set out—