POLITICS
Zircon and the length of the Attorney General's foot
ANDREW GIMSON
Reaction to the Zircon affair should not be determined by whether or not one would, like Sir Michael Havers, invite Mr Duncan Campbell to one's club. The per- sonal aspects of such a case are often the most interesting, but this time admit of little doubt. Most people know at once whether they would warm to Mr Campbell or whether, in the manner of Mr Rory Macdonald when landlord of the Clachaig Inn in Glencoe, they would feel more inclined to put up the sign 'No Hawkers or Campbells'.
The questions which the affair raises about the Government's attitude to the press are less quickly settled. Nobody doubts that certain secrets must, in the interests of national security, be kept secret. After a confidential briefing, the opposition front bench agreed with the Government that national security is in- volved in the present case. But from this agreement, several disagreements flow, particularly about the sense of timing and immunity to wrongful influence of Sir Michael Havers.
`Never again will a respected legal pub- lication be able to say, as the New Law Journal said on 14 May 1970: "Prosecution under the Official Secrets Acts depends entirely on the length of an Attorney General's foot." ' Mr Jonathan Aitken wrote these words in 1971, in his book Officially Secret (Weidenfeld and Nicol- son), having just been acquitted of off- ences under the Official Secrets Act relat- ing to an article published in the Sunday Telegraph. It was then his belief that the summing up in this case, by Mr Justice Caulfield at the Old Bailey on 23 February 1971, had 'left the Official Secrets Act of 1911 so maimed as to be unrecognisable. The notorious Section 2 is in ruins.' After the trial, Lord Franks was asked to ex- amine how to amend Section 2.
Section 2 proved more durable than expected. It still exists in its full and astonishing amplitude, and the Attorney General still has to decide when prosecu- tions are to be made under it. Since millions of us are technically guilty of offences under Section 2 — What civil servant has not betrayed some trivial offi- cial secret? Which of us has not received such stolen goods? — he has an immensely wide discretion. He exercises this discre- tion impartially, charged as a Law Officer to assess the public interest. He may, if he wishes, consult ministerial colleagues, but the decision is his alone, made in a quasi-judicial not a political capacity.
His difficulty is that laymen, failing to understand that lawyers' heads have been ingeniously compartmentalised in order to allow a genuine separation of powers to take place inside, are liable to think that they do not operate the Official Secrets Act impartially. Justice cannot be seen to be done when it happens inside a man's head. Whether it has been done can only be judged by results, and these vary widely. At least five Attorneys General never authorised any prosecutions under the Act, while others, such as Sir Reginald Manningham-Buller and Sir Elwyn Jones, authorised many. The history of the Act is littered with prosecutions, more often with vague threats of prosecution, which are only explicable as attempts to further party-political ends.
On 23 January this year the present Attorney General asked the Metropolitan Police to investigate possible breaches of the Act in the Zircon affair. Yet Sir Michael had certainly known of these possible breaches since October last year, when the BBC had been persuaded not to show the programme about Zircon, and had probably known about them before then. Why did he not act? Because, Mr Kaufman suggested in the debate on Tues- day, Mrs Thatcher had not yet told him to attack, under 'the cloak of national secur- ity', such hated institutions as the BBC and the New Statesman.
This charge puts Sir Michael in• a very difficult position. He has allowed the New Statesman to publish an article which all our leading statesmen believe or affect to believe damaging to our national security. He has undoubtedly been incompetent, and has laid himself open to accusations of worse than incompetence. Something per- suaded him to change his mind. What? The most obvious construction to be put on the facts is that he hoped there would be no need for an actual investigation, decided it was not necessary to hunt down the source of the leak, but that others in the Govern- ment disagreed and successfully put press- ure on him.
For much of Tuesday's debate after Mr Kaufman had spoken, the opposition par- ties allowed themselves to be distracted, in their assaults on the Government's 'venge- ful and spiteful fishing expeditions' (Mr Kaufman again), by red herrings. It was left to Mr Aitken to show them how to press home the attack: not to declare that Britain has become a police state (the very fact of the debate disproved that), or to complain, as Dr Owen did at length, that the warrants were too widely drawn (that should be challenged in the courts), or to protest that the police raid on the BBC headquarters in Glasgow had been over- zealous (use the police complaints proce- dure), but to inquire into the degree of Government involvement, and the judg- ment behind that involvement. Was the Lord Advocate, the Attorney General's equivalent in Scotland, really able to judge by himself the implications of the affair for national security?
That is not the sort of question to excite rapturous interest outside Westminster. The details are as specialised as the finer points of the Westland affair. But a more general impression emerges from Zircon, of a government as determined to inter- vene in matters of security as it is to end economic intervention. This decisiveness, or 'authoritarianism' as the Left calls it, may prove quite popular, but is often misplaced. Mrs Thatcher should not have become the leading defender of the doc- trine enunciated in classical form by Sir Norman Brook, the then Cabinet Secret- ary, in 1957, that 'the publication of any official information which has not already officially been made public' renders civil servants liable to prosecution. Such indis- criminate rules make it almost impossible to write well about Whitehall, as a succes- sion of able journalists has discovered. Monstrously inefficient institutions like the Ministry of Defence continue to cover up every blunder by pleading 'national secur- ity' or official secrecy. We only see from the money vanishing into them that some- thing has gone wrong. For a Prime Minis- ter who wishes to reduce waste in Whitehall, to uphold mindless secrecy is perverse.
Mr Hurd said on Tuesday in the Com- mons that 'no one is wholly content in 1987 with the Official Secrets Act'. Those are not the words of a Home Secretary who means to do anything about it. He used, of course, to be a civil servant.
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