§ Order for Second Reading read.
§ Mr. Speaker
Before I call the hon. Member for Birmingham, All Saints (Mr. Walden) to move the Second Reading of his Bill, I remind the House that this is a non-party debate. It will help Mr. Speaker to secure a balanced debate if hon. Members who seek to catch my eye will let me know whether they are for or against the Bill, if they have not already done so.
§ 11.1 a.m.
§ Mr. Brian Walden (Birmingham, All Saints)
I beg to move, That the Bill be now read a Second time.
It is my privilege to introduce this Bill and to indicate at the outset very swiftly, in remarks which I shall go into more thoroughly later, what it does. In its first Clause, it establishes a right of privacy by saying:Any substantial and unreasonable infringement of a right of privacy taking place after the coming into force of this Act shall be actionable at the suit of any person whose rig it of privacy has been so infringed.It then defines various terms and specifies various kinds of intrusions in Clause 9, and in Clause 3 it gives the various defences that any defendant may have to such an action.
Though hon. Members will have read the Bill as a whole and will want to look at it as a whole in debate, obviously the three crucial Clauses are the first, the ninth, and the third.
Whatever view one takes of the Bill, I do not think that anyone in the House has said or could say that Parliament has no concern about privacy and that people are indifferent to whether their privacy 862 is protected. I make that point at the outset because, in certain fashionable intellectual circles, it is in vogue to hold a quite different view.
Thus it is that we have to endure the tedium of reading in print the pimples and problems of café society, and perhaps it is because of that that the feeling has grown up that, somehow, a longing for privacy is a remnant of a more savage existence, a vestigial remain of a feeling which sophisticated man should have got rid of, and that the really "with it" person should be prepared to expose his tastes and peccadilloes before the world for its entertainment and enlightenment.
That view may have some adherents in N.W.1, and it will not be rebuked by E.C.4, but I have no doubt that the overwhelming majority of people agree about privacy. The right to be left alone may not sound a very exciting freedom, but it is the one about which the British people care most.
If it is conceded that that instinct for privacy exists, two questions arise in this debate: first, is any additional legal protection needed against intrusion; and, if the answer to that question is in the affirmative; secondly, has this Bill found the right method of giving it? I want to apply myself to both those questions.
It might be convenient for me to say now that my hon. Friend the Member for York (Mr. Alexander W. Lyon), who introduced the first Privacy Bill, at all events into this House, who was a member of the "Justice" committee, who is himself a lawyer and who, I can say without any hesitation, has studied this issue in depth for a very long time, will go into more detail, will amplify my remarks on the second of those questions, and will deal with particular points that arise on the Clauses.
I turn straight away to the first question that I posed, namely, whether additional legal protection is needed against intrusion. The extent to which intrusive practices take place is growing, and I do not think that this is commonly realised. If it were realised—indeed, one of my purposes in suggesting this Measure was to focus attention on this issue—and I think that increasingly it is being realised, there would be a swelling public demand for people to do something about it.
863 This is the problem. Modern technology has conferred substantial benefits on us. Moreover, it is foolish to regard bits of machinery as though they were human beings and had moral judgments and, therefore, could be labelled good or bad. Nevertheless, we cannot turn away from the fact that modern technology can be and is misused.
I have always said—and this is one of my major concerns in the Bill—that there is no doubt about what is happening in terms of bugging, the use of bugging devices, and the planting of microphones. This has now become the common practice of private detectives and inquiry agents.
I do not know whether hon. Members saw the B.B.C. programme "24 Hours" last night on which a private detective was explaining how very cheap and simple it was to bug a person's home. Another detective produced a suitcase full of these devices. He said that the suitcase was similar to one which every agent carried. I might add that the principal person being interviewed, the first detective, showed a total contempt for the law of trespass. Indeed, he showed a total contempt for the law in general. He admitted that he was a persistent law-breaker and would go on being a persistent law-breaker. He intends to continue to impersonate gas meter inspectors so as to get into people's houses to plant microphones.
This man said that a few prosecutions for trespass would not worry him. He had had them and was prepared to put up with them in future. No doubt he puts it on the bill. He asserts, both publicly and privately, that that attitude to the whole issue is general, if not universal, in his profession, and that his job cannot be accomplished without the use of these devices.
It is all very well for certain professional detective committees to declare such practices unethical. What is the use of that to the citizen? It does not stop it. It does not even control it. Nor does the law control it. It was not devised to control it, anyway. English law did not evolve with a knowledge of devices like these. So it is important to take note of what is occurring, the extent to which it is occurring, and how easy it is for people's privacy to be invaded.
864 I want to make clear that it is the intrusion that I think is wrong, not the means. I do not want to get the House off on a false trail. It is no worse to bug a person's home than to stand behind the curtains and take down everything that he says, but it is easier. This is what we have to face. Secreting oneself for a few hours behind a curtain is more difficult than whipping into a room and planting a microphone from which a recording can be taken. Therefore, I have every right to claim—and every factor to which we have access proves the claim—that this is not a static practice. It is a persistently growing menace.
I quote again this obligingly frank, if somewhat naive, detective. He said:It has mushroomed up in the last few years.It will mushroom up further, because it is not only private detectives and inquiry agents who use bugs. Newspapers do. They are very shy of talking about it, but they use them.
One national newspaper asked me to see its representative. He was a very nice man. He was very frank and candid. He asked me what would be the position of his paper under the Bill, because it was the common practice of a large national newspaper to send out its reporters with hidden recorders on them so that, under the pretext of having an interview or, for that matter, having a chat, they could record every word that was said.
I want to be absolutely fair. That man did not even understand that that could at least be questionable—not necessarily unlawful, but questionable. It seemed to him to be absolutely in order. Indeed, he felt that the newspaper was being self-denying. It actually put the recorders on the men. It forbore from going around planting them wholesale as part of the normal daily activity of the exposure journalist. He felt that that reflected great credit on his newspaper, and he was a sincere and sensible man.
But this shows the gap between what I think, and I believe many hon. Members in the House of Commons think, is right, or at least unquestionable, and what newspapers think is right and unquestionable. By their very natures, newspapers are intruders. They have a 865 right to be intrusive to a considerable extent. As far as they are concerned, that right should be unabridged, because every attempt to abridge it means difficulty, trouble and nuisance for them. That should not be the view that the House of Commons will take with its responsibility to the citizens of this country.
I want to say more about the Press later. I brought in that particular point about bugging, because I wish to impress it on the House. It is not only that it is a growing practice; it is so cheap. It can be used for so many purposes: for profit, for discovering information for publication, for breaching confidentiality for business reasons, and, for that matter, for pure amusement. This problem will get worse and, in my judgment, it is a problem of which the law must take note.
I will come later to why I do not think that it is right to actually ban these devices in the sense of passing a Bill which would make their sale illegal or put any criminal sanction on them. But their existence is a menace, and something must be done about their widespread use. There must be some checks, some safeguards, and some guidelines.
§ Mr. Robert Sheldon (Ashton-under-Lyne)
If it is the growth of these new devices that is causing the problems to which my hon. Friend rightly refers, why cannot the Bill limit the purposes for which they may be used?
§ Mr. Walden
I shall be coming to that very point. I shall come on later to talk about why do it this way: why establish' a general right of privacy; why no: go at the problem piecemeal in the way that my hon. Friend suggests? I will gibe him a direct answer on the point that he has raised.
It is not only bugging devices that are causing intrusions. It came to me as a new piece of information to discover that there have already been 5 million pre-employment checks in this country. Of course, there must be checks on a worker being taken on by a firm. It will want to know whether he is competent to do his job. Indeed, the Bill covers such legitimate and valid inquiries. But the real point is that the worker, the individual, has no check on 866 what is going into these pre-employment reports.
When I say that the private detective agencies are one of the greatest sources for collecting such reports, I do not think that the House will be particularly satisfied that the privacy of the individual is likely to be protected by them. There is no check on what is there, and there is no redress if what is there is improper.
I come, now, to deal with civil credit. I think that the credit institutions of this country act with good faith, and a restraint which is absent in other countries, but the fact remains that they instigate the most sweeping and widespread inquiries. Sometimes the mere signing of a hire-purchase form can lead to a detailed inquiry into a person. That is only right and reasonable, and I do not think that the House would ever agree to anything other than that credit companies should have the right to check whether they have potential bad debtors on their hands; of course they should. I have had considerable discussions with credit companies, and I have not met one which has any objection to the Bill. Many of them think that the defence more than covers them in their legitimate activities, but at the moment there is no check of any kind.
I do not think that we should allow in this country the practices which are used by information bureaux in the United States, whereby creditworthiness can include almost anything. It can include nebulous concepts such as marital stability, temperamental affinities, and so on, let alone detailed probes into a person's political views, the practice or non-practice of religion, and so on.
That surely cannot be right. It surely cannot be right to leave a gap in the law, in a society which, all the time, is becoming more and more credit-orientated, for at least the possibility of abuse. Or, to put it another way, there is no possibility of stopping an abuse given the present state of the law, so that again there is an intrusive practice which is growing, and which is dangerous.
Again, there are lapses in confidentiality. These days there is far too much material available on all of us. In the past we at least had the consolation, for what it was worth, of knowing that that information was lying around all over the place, and that the problem of getting 867 it together was likely to be prohibitive in terms of economic cost and would involve a great deal of labour on the part of the person who wanted to collect it.
That was some reassurance, but that has now gone. The computer, as I said of the bugs, is completely neutral morally, but it happens to be ideally suited for doing what, in the past, I have said it was unable to do, namely, to stitch together all the information that can be found out about us from any source, starting with school records and going right through every aspect of our private lives if it should be in somebody's interest to do so, and it will be. Let us have no doubt about that.
One journalist described the Bill as a lawyer's paradise. It was also said that it was a crook's charter. The situation of which I have just spoken is a bureaucrat's dream—beautiful machines which can operate on small spools of magnetic tape and record everything that needs to be known about everybody in a nice convenient little file. Let us not think that this will not happen unless there is a severe sanction to ensure that it does not. I do not wish to name institutions, because that might be regarded as offensive, but it is in too many people's interests to have things done that way for us to be sure that confidentiality is ensured unless something is done to protect it.
I should like very much to say a great deal more about intrusion, but I have said enough, I think, and many other hon. Members will wish to add to my comments.
Is the method suggested in the Bill the right one? The Bill has been produced with great care. It is substantially, though not entirely, the "Justice" draft, modified because of representations made by the National Council for Civil Liberties and others. I hope that I may say in passing that the council's work in this field, started long before I introduced the Bill, has been magnificent. It is a body of which this country can be proud. It has done a great deal of useful work, and has collected a great deal of information on a number of frightening cases, the sort of cases which, in Committee for instance, or before any inquiry, would make the most fascinating reading, and would impress hon. Members.
868 The Bill was very carefully drafted, but I never supposed that I would have to be wedded to every word of it. In days gone by, and I shall not say happier days, I had some association with the Home Secretary, and I do not recall any Measure which he introduced not requiring substantial amendment, not infrequently on his personal initiative. My right hon. Friend must have amended his own Measures more times than anybody else in the House. I therefore accept that the Bill might have to be modified in Committee, but it is the method of the Bill to which I am wedded, and I wish to suggest reasons why the House should stick to the idea of creating a general right of privacy, and should not try to tackle the problem in any other way.
First, there is great virtue in establishing a general right of privacy, and I think I can say that every committee which has looked into this problem in depth has come back with the answer, "Establish a general right of privacy. Do not mess about with trying to do something about this, that or the other. Provide the general right, and then, give definitions and defences".
Second, a piecemeal change is undesirable in many ways. It will take a devil of a long time if we wait to pass Bill after Bill to meet every instrusion. That will absorb a great deal of parliamentary time, and we shall not be able to pass the legislation, with the result that nothing will be done about the many aspects that should be covered.
§ Mr. Eric S. Heffer (Liverpool, Walton)
Does my hon. Friend agree that if the Bill is drawn too widely and too generally nothing will be done at all for that very reason?
§ Mr. Walden
I shall come to that in due course, but perhaps for the moment I might continue with what I was saying.
If we deal with this issue piecemeal, it will result in peculiar anomalies. Some things will become impermissible as intrusive into privacy, and others will not, and some of the things which are not prohibited may be worse than those which are.
Third—and this brings me directly to the question asked by my hon. Friend the Member for Liverpool, Walton (Mr. Heffer)—just think of the problems involved in drafting such a Bill. Suppose 869 it is decided to make illegal the sale of bugging devices. What is a bugging device? How does one define it? Does one include in the Bill a provision to ban the sale and use of microphones? Obviously not, but these bugging devices work off microphones. What criteria will we use? Will we say that if a microphone is of a given size it is permissible, but that if it is smaller than that it is not? The matter cannot be dealt with in that way.
People talk about the complexity of going wide. They ought to consider the complexities involved in going narrow. They ought to try to define a bugging device. They ought to try to define what should and should not be permissible use. Try to define what should or should not be permissible size. I suggest that there would be far more difficulties with that kind of approach than with the approach made in the Bill.
§ Mr. Frank Hooley (Sheffield, Heeley)
Is there not at least one criterion which might help my hon. Friend, namely, that the person directly concerned should or should not know that the device is there? If that criterion is applied, surely the difficulties disappear.
§ Mr. Walden
The hon. and learned Gentleman is quite right. A telescope would create great difficulties, but there are worse difficulties.
I do not say that in all circumstances a secret recording is necessarily wrong. The Bill provides that if a person makes one he must be at legal risk. If action is demanded and it is taken, he must satisfy the court that there was a reasonable ground for doing what he did. If I adopted the suggestion of my hon. Friend the Member for Sheffield, Heeley (Mr. Hooley), any hidden recording would be out. I do not think that we would be able to maintain for long in civil law and in a civil court a practice which was different from that of criminal law and in a criminal court.
It therefore would not be very long before the police were not able to make secret recordings. It may or may not 870 be a very good thing, but I think that my hon. Friend will concede that if I drafted a Bill like that it would be infinitely wider in its general implications than this Bill.
I should like to make one point about why I think that this is the right method.
§ Captain L. P. S. Orr (Down, South)
I apologise for interrupting the hon. Gentleman, because he is making an exceedingly interesting and able speech, but would he deal with this point about electronic devices? He spoke about the difficulties of definition. There is already a definition in the Post Office Bill which makes the use of all electro-magnetic transmissions subject to licence, not only by the Minister of Posts and Telecommunications, but by the new Post Office Corporation. Would the hon. Gentleman say why that would not be sufficient power in relation to the use of electronic devices?
§ Mr. Walden
That is a very good question and I am grateful for it. It refers to transmissive devices. I do not want to offend any Law Officers present, but the law does not work, which shows the difficulty of doing it in that way. The reason certain gentlemen are running around loose planting bugs is that the law cannot get at them. I still prefer my approach, and I will give one other reason for it.
§ Mr. Eric Lubbock (Orpington)
I apologise for interrupting the hon. Gentleman once more, but the Post Office Acts, as I understand them, deal only with transmission by means other than wires.
§ Mr. Lubbock
If bugging devices are connected by a wire to an outside listening post, they do not contravene the Post Office Acts.
§ Mr. Walden
I will not go too deeply into that point now, but I was told by a private detective that that was the advice which a lawyer had once given him and he explained the care which he took to lay wires.
Another reason why we should establish a general right of privacy is that we are obligated to do so. I appeared in a programme the other night on which it was said, "What does it matter what 871 we sign? We have signed a few international treaties which bound us to do certain things, but no sensible man would take any notice of them". It is not altogether an unfashionable view in politics, but I take a different view. Presumably we have signed agreements intending to honour them. They are quite tight.
By Article 12 of the Universal Declaration of Human Rights and Article 17 of the United Nations Convention, we have bound ourselves to ensure that no oneshall be subjected to arbitrary interference with his privacy",and that everyone has the right to the protection of the law against such interference. That is a proposition which I have been spending some time trying to show is not satisfactorily fulfilled by the law at the moment.
We are also signatories to Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that everyonehas the right to respect for his private and family life, his home and his correspondence.Presumably we are supposed to do something about that. The Government have many problems in many spheres and time is pressing. None the less, they are obligated to do something about privacy. They are on record as supporting the idea of giving it more adequate legal maintenance, or, if they are not, their signatures to those agreements, at least in this narrow sense, is quite meaningless.
§ Sir J. Foster
May I point out that if the individual is denied the right of privacy he can take the Government before the Court at Strasbourg?
§ Mr. Walden
That is so. The hon. and learned Gentleman, like me, is a practical man, but that will not meet the sort of individual cases which have worried me. However, I take his point.
I turn, with some reluctance, to the one section of opinion which has, by and large, been emphatically against the Bill, and that is the Press. I think that some answer is required to the sort of things which have been said, not merely about this Bill but about Parliament's thinking on privacy. By the Bill, the Press is given a number of covers. To begin with, 872 it has only to show, as a defendant, that consent, or the implication of consent, was present and it can inquire into or publish anything providing it does not involve some other tort.
I gather that the Press is not very happy with the laws which it has to observe. I am certain that if we had continuing laws expirance on a whole series of civil laws the Press would mount a great campaign against the laws being renewed. It cannot do anything about that; it is there. But it is determined to do what it can to stop this. In addition to the defence of consent, or the implication of consent, which would cover the vast majority of cases, it has the opening words of Clause 1:Any substantial and unreasonable infringement …The insertion of the word "substantial" disposes of all the talk about not being able to inquire whether a garage can service a car, quite apart from numerous other defences about lawful business interests, and so on. The Press would have only to show that its infringement had not been unreasonable and had not been substantial, or either.
Again, the Press is clearly covered by Clause 3(c):where the infringement was constituted by the publication of any words or visual images, there were reasonable grounds for the belief that such publication was in the public interest".That is a more liberal draft than the one which "Justice" suggested. I modified that to give even wider guidance, but I did not get any thanks for it because the Press retorted that it was vague. Apparently, it wants precise definitions—until it gets them, and then it will violently object to having precise definitions.
There is also the nonsensical argument that courts would have to interpret the Measure. What law do the courts not have to interpret? Of course, hypothetical cases can be dreamed up in El Vino which would be very difficult to cater for in legislation, but that is what the law is about. When the Press makes a comment like that, it shows a contempt for the way in which things are done and the way in which institutions operate in this country. Therefore, the Press is not happy or satisfied, and it says that the Bill is a rogue's 873 charter and a lawyer's paradise, and all the rest of it.
I say this about the general things which the Press is saying. I am advised that the amount of litigation which would arise under the Bill would, contrary to the claim of the Press, be trivial. I am advised that it is not the case that the defence in relation to publication does not cover the Press very substantially on inquiry as well.
In other words, the words are being used in two different senses, the lay sense and the public sense.
I am advised—I was delighted to see that the New Law Journal editorialised on this—that it is not wrong to put in words like "substantial" and "unreasonable". They may sound vague to the Press, but the courts are familiar with such terms and are used to dealing with them. After all, they have to put up with the legislation that we send them. No hon. Member will assert that the legislation does not sometimes include composite terms of that kind which require some definition. I am advised of a great deal more, too, in terms of what the Bill means in respect of the Press.
But the crucial point is that one will never satisfy the Press on this issue. We will never have any privacy legislation which they will endorse and we will never have any privacy legislation which they will not campaign against. Now they want committees and precise definitions. When they get them, they will want Private Members' Bills, wide and vague. It is impossible to meet their conception of what they should be doing.
I want to be very precise about this, because I do not want either to be unfair or to suffer the danger of misreporting. I think, first, that the Press in this country is largely a very good Press. I think, secondly, that the degree of its intrusion is not very great in a total number of cases, though I entirely reject the conception of the Press Council that one must judge the amount of intrusion which has taken place by the number of cases which have been referred to that not entirely mandatory body.
The Press Council is no doubt a very desirable institution. It holds its proceedings in camera. Being a great believer in the principle that everyone 874 should know what goes on and that everything must be exposed to the public, the Press Council does not let one know what goes on in its own proceedings. So I take no notice of this claim about the number of cases it has had. Of the six worst cases which I have looked into of Press intrusion, not one was dealt with by the Press Council, because they concerned ordinary people, who do not refer things to that council.
The Press is not a persistent intruder: I have never said that it was. But I think that hon. Members will follow me when I say that, where it intrudes illegitimately and does great damage, the damage is very severe and grave to the individual concerned because of the width of the publicity. In other words, the Press is in a different position here. We cannot judge the Press on the number of times in any one given day that it intrudes. What we have to judge is the damage which is done to the individual concerned, and there can be no worse damage, after substantial intrusion into a person's life, than for the results to be published in the Press.
So this is a serious issue. I am unwilling to exempt the Press from the operation of the law. In some senses, this is an outrageous claim. I was always taught that the Press had no more rights or obligations than the private individual. If we are to reverse that doctrine, and say that the laws of the land shall not apply and the Press shall have a certain immunity, how long will it be before Parliament and the public are starting to talk in terms of separate Press laws? I am wholly opposed to this House doing that kind of thing. It is a human argument that the Press should be exempted from the law and the Press's whole reaction to the issue of privacy has been unreasonable.
Whatever happens today or on other days, one will find, whenever one mentions privacy to the Press, that there will be a St. Vitus' dance of apprehension. The idea that there is a magic formula somewhere which the Press will accept simply is not true.
I appeal to the House, on this issue only, to say that, if it is not publicly stated, it is privately assumed by many journalists that the police are not wholly satisfactory in the apprehension of felons, that Parliament is totally incompetent in 875 terms of passing legislation and that the courts cannot be trusted to interpret the law. These are the great justifications for investigatory journalism, which has become the great new passion. The Press, of course, has always had investigatory journalism. That is not what is meant: what is meant now is the great exposure. We must give some protection against that kind of journalism if it uses illegitimate means and if what it does has not at least some marginal attachment to the public interest.
What are members of the Press, or some of them, asking for? They say that they only do all these terrible things so as to catch rogues and crooks. We all know that the Press is only interested, in terms of exposure, in rogues and crooks. It is supplementing the police force in this respect, doing the Home Secretary a great favour by bringing more cases to his attention—and sometimes it does. Sometimes it does magnificent work here.
But what is their claim?—that, in the editor's office, without benefit of any trial or any nonsense of that kind, they will prejudge the issue of who is a rogue, or who might be a rogue if only one probed into his secrets long enough to find out, that they will decide that, and that then, having decided it, they will then use any means, even those that this House would regard as illegitimate and which will, I hope, in the end, be regarded as unlawful; they will do that because they have the right to do that, because that is investigatory journalism and anyone who is against that conception of their duty wants to suppress the truth and destroy freedom.
That is what the House is being asked to accept. This is a grossly misleading description of what actually goes on in Fleet Street, where the doctrine is growing that the Press is not there to report on the news or comment on it, but is, in part, there to make it. That, more and more, is becoming the attitude of many newspapers, some of whom should know better and most of whom never have.
This is a vital step. Whatever happens today, whatever view is taken in the debate from whichever side of the House, I believe that we must come to terms speedily with this issue. It cannot be allowed to drift and drift and drift in 876 the hope that, sooner or later, the problem will solve itself. It will not, It is our responsibility as a House to solve it and it is in that sense that I ask for a Second Reading of the Bill.
§ Mr. Speaker
Order. I remind the House that I have asked hon. Members to help me to secure a balanced debate by letting me know whether they support or oppose the Bill. If we are to get a cross-section of the opinion of the House, it is essential that now speeches be reasonably brief.
§ Mr. Heffer
There is some difficulty, Mr. Speaker, because some hon. Members may be in favour of the principle but against certain aspects of the Bill in practice.
§ Mr. Speaker
I appreciate the point. It will also help Mr. Speaker if I am informed by hon. Members who hold such views.
§ 11.48 a.m.
§ Sir Lionel Heald (Chertsey)
I am unable to support the Second Reading of the Bill, on fundamental grounds of principle. I hope that the hon. Member for Birmingham, All Saints (Mr. Walden) will not think it either impertinent or patronising of me to say that I am sure that he can feel satisfied that, in all parts of the House, there will be gratitude to him for having made use of his good fortune in the Ballot to raise this subject. Not only that—again, I hope that he will not mind my saying this—but it will be generally agreed that he has stated his case extremely clearly and in a very interesting manner. For we are dealing with a matter of great interest and great public importance.
In particular, the hon. Gentleman has demonstrated, if it were necessary to do so, the very serious trouble that is caused by certain novel, ingenious and very effective devices with the advance of science in communications, electronics and photography. He has enabled the House not only to discuss that subject, but also to impress upon the Government the real necessity for considering legislation to deal with those evils; whereas up to now the Government have not shown themselves ready to do so.
877 If the Bill were confined to that field, I should support it strongly. But it is not. It goes much further and is so ambitious—I use that word in no offensive sense—that it sets out to do something that has never been done in our history—that is, to set out a right in a Statute. It is an interesting fact that the freedom of speech, which I suppose is one of the most fundamental rights there is, and which today is certainly the right that distinguishes our system from a totalitarian one, will not be found in any Statute. It is part of our unwritten constitution.
Any proposal involving substantial interference with that right is a matter of constitutional importance; and, for the reasons that I will briefly indicate, it is not right that a matter of that kind should be dealt with by a Private Member's Bill, unless the Government are prepared to say that they have already studied the Bill and are prepared to support and accept it.
I can mention one example within my experience. I do not see anyone else present who was concerned with it. I refer to the amendment of the law of defamation. The Private Member's Bill which did that was brought in by the present Paymaster-General. At that time I had the honour to hold the onerous position of Attorney-General. We went into the matter and came to the conclusion that that Bill could be supported by the Government. In such circumstances it is right to proceed.
Before we try to do such a thing in this present case, let us see where we stand. It is a little unfortunate that the hon. Gentleman concentrated his fire on the Press. There is a danger of getting off on the wrong line. Freedom of speech, which covers a very broad ground and includes all kinds of publications as well as statements, is not only the concern of newspapers. It concerns everyone—authors, publishers, script writers, lecturers, historians, comedians and caricaturists. Every one of those is or could be affected by the Bill.
We go even further with oral communication. Every man, woman and child, every day makes use of the right of freedom of speech. It arises whether they are travelling on the Underground 878 or in a bus or talking to other people. It arises in every aspect of human affairs. Therefore, a Bill which sets out to create a broad right of privacy is of enormous importance and width.
I shall concentrate primarily and almost entirely on the constitutional aspect, because it is very important indeed. A Bill such as this should not be brought before the House for a Second Reading until there has been consultation with the Government and a full opportunity of public discussion of the Bill which is proposed to be introduced. What is the position in this case? In a letter to The Times on Wednesday, Mr. Sargant, a very enthusiastic—rightly so—protagonist of the Bill, said that this matter had been the subject of consideration for two years by "Justice", which had produced a report on which the Bill is based. That report was published last Friday and was available in the Library only on Monday. I wonder how many hon. Members have read it. I wonder how many hon. Members even have a copy of it. I obtained mine, price 16s., from "Justice". It is well worth it. It simply is not good enough to place a Bill such as this before the House at less than a week's notice.
A study of the Bill gives rise to all kinds of questions, doubts and difficulties. Those will no doubt be discussed. Mine is the fundamental one of the right of privacy.
Even if we are not lawyers, we have all been brought up on the ancient Blackstone and all these matters that we often cite in the House. That is the basis of our unwritten constitution. If we are to start writing a constitution, we should seriously consider the question whether we should not have a Bill of Rights. The hon. Gentleman talked about dealing with matters piecemeal. This is piecemeal—this is a "mini-Bill of Rights". I shall show in a minute or two how defective it is if anyone boasts that a private right to privacy is to be created. There are all sorts of aspects of privacy which the Bill does not touch, and that is my main point today.
The Home Secretary and the Attorney-General are here. I hope that it is not impertinent for me to say that I hope and believe that they will appreciate the point that I have been putting and tell 879 the House what the Government's attitude is. This is essentially a matter for the Government to deal with.
In recent years we have had experience of many cases, particularly in social and moral legislation, where the Government have left matters to Private Members' Bills. There are differences of opinion as to whether that is a good or a bad thing. It is, of course, ostensibly done on the ground that those are matters for individual Members' consciences. But this is not a matter of individual Members' consciences. It is a matter of the constitution. It would be different if this were the sort of matter on which the Home Secretary was prepared to say, "I accepted it. By all means go ahead."
There is one question I should like to ask and I think that the House is entitled to know the answer. How long have the Home Office and the Law Officers been considering the Bill? Did they have it before them with the "Justice" report, a very important document, which contains not so much the wording of the Bill as the whole basis of it set out very clearly, as one would expect, knowing some of the people concerned in the "Justice" report. Has the "Justice" report been considered? When did the Government receive the "Justice" report, and can they really say that they are prepared to give the House an opinion in favour of it today? I believe that it is very important in everybody's interest that we should deal with the matter in this way.
I said just now that the claim that this is an all-embracing right is not justified. I can give a clear illustration which has arisen in the last few days. In my constituency—and I believe the same is the case with hon. Members on both sides of the House—if one asked someone what he thought was the greatest invasion of privacy there is not the slightest doubt that he would reply that it was aircraft noise. Is that matter covered by the Bill? Of course it is not. Everybody in the country has been told that the Bill is a charter for the protection of privacy. Yet that is the first thing which occurs to people, as it occurred to one of my constituents who got on to me and asked whether I would support the Bill because it would help so much in the trouble with Heathrow.
880 That is not a small debating point at all. It shows that this attempt to create a new constitutional right is defective. The reason is that the committee said—and I do not blame it—"The law of nuisance deals with noise, so that would not come in". But we all know that the law of nuisance completely fails to deal with that matter. So it is, therefore, just as much or as little open to complaint as any of the other matters with which we are concerned.
I hope that we shall be told by the Government that the view which I have been putting forward is the right view as regards the way in which the matter should be handled and that the Home Secretary will make clear how far, if at all, his Department has had the opportunity of considering the form of this Bill. If his Department has not had that opportunity, I respectfully suggest that the right course would be for him—and, after all, it is a matter for him—to suggest to the sponsors of the Bill that, if he is prepared to give a clear undertaking that the whole subject will be taken in hand and reviewed by the Government promptly, the Bill should be withdrawn.
I have not, I hope, shown any hostility whatever to the hon. Member for All Saints, and I have particularly refrained from becoming involved in any discussion about the Press. I have more sympathy with the Press point of view on the Bill than has the hon. Gentleman, because of the uncertainty and ambiguity, as I see it, of the defences. The Press has real ground for its fear that it might be put in a position of uncertainty and would have to act in a way which was really against the public interest.
But those are matters to be discussed by others. I hope that the hon. Member and his friends—and particularly all those people in "Justice", many of whom are old personal friends of mine—will appreciate that there is no reflection on them whatever. But I feel that they are biting off a great deal more than they can chew. We should be unduly hurrying, and possibly doing damage, if we went ahead with the Bill. As we know, there are tendencies for Governments, of whichever party, to say, if there is a Private Member's Bill running along, "We need not worry. We need not do anything now". A Private Member's Bill can act as a good spur. I hope that this Bill is acting in that way today.
§ 12.5 p.m.
§ Mr. Alexander W. Lyon (York)
Almost three years ago to the day, I introduced to this House, on one of the long forgotten morning sittings, the Right of Privacy Bill, 1967. I asked the leave of the House to introduce the Bill under the Ten-Minute Rule not because I expected that piece of legislation to be enacted, but simply to begin a campaign to introduce into our law a law of privacy which would be an effective protection for what I accept from the right hon. and learned Gentleman the Member for Chertsey (Sir L. Heald) is already an existing freedom under our law, the freedom to keep one's private life to oneself.
But, unlike freedom of speech, this freedom is so seriously under threat from powerful influences on all sides in our society that the freedom which we claim under the law is seriously weakened and the balance has fallen heavily against those who wish to protect their privacy.
I began my interest in this subject a long time ago when I was a law student and I read "Wingfield on Tort" and, unwisely for any law student, I read the part of the book which was not even included in the syllabus, the chapter on doubtful and inchoate torts. It was then that I first began this interest in the way in which the law was defective in protecting what even then seemed to me to be a basic desire of all civilised beings.
What has sustained me over the years since, and particularly during the three years in which I have been running this campaign, is a passionate belief that the right of privacy is something which significantly marks the characteristics of a civilised society and that without it we lapse a little nearer to barbarism.
The right hon. and learned Gentleman referred to the freedom of speech as being a distinctive characteristic which differentiated our society from a totalitarian society. I remember the passage in "1984" which most horrified me. It was not the big brother television set, nor was it the rat in the box at the end of the book which finally broke the spirit of the individual. It was that in seeking some area of his private life which could be uniquely his and not the State's, he had taken his girl friend into the wood to talk and then, at the end of the book, he found that those conversations which 882 he thought were private were, in fact, being recorded by a bugging device.
If we ever had that kind of society, it would be that—the fact that one could not get away from the State—which, in the final analysis, would most revolt me. It is that feeling, that this is intrinsically the mark of civilised man, which has prompted me to try to bring in some sort of legislation.
The history of the matter goes back well beyond that. I shall deal with three points in my speech. I shall take, first, the history of the matter, because I wish to deal with the allegation in the Press Council's statement that this is in some way a hasty and ill calculated move, a criticism which, unfortunately, crept into the right hon. and learned Gentleman's speech, too. Second, I shall deal with the principles on which the Bill is based and answer some of the criticism of it. Third, I shall deal with the question of the Press.
As a concept in law, the right of privacy goes back to the English common law. We were already developing, in the beginning of the 19th century, a legal protection for privacy in the same way as the English common law developed legal protection against negligence, in the way it developed the legal protection of defamation. I remind the House, to stifle the criticism of those who say that the Bill puts too much power in the hands of the judges, that most of our basic freedoms under the law have been protected by the judges, by judge-made law over the centuries.
The difficulty was that privacy in those days could be protected easily by the protection of property. If a man was within his home, it was difficult for anyone to overcome his defences. Therefore, simply to allow the law of trepass to operate gave considerable protection of privacy. The judges of the 19th century did not feel the need to go on to develop the law of the personality, as it is called in Germany.
The high peak of this litigation came when Prince Albert and Queen Victoria found that some of their correspondence had fallen into other hands and was about to be published. They brought an action in the courts, and the courts said, "Yes, there is a remedy, and we shall stop it." If that had been developed into a full-scale tort, as the law of 883 negligence was developed, we should not need this Bill today.
It was not so developed because the judges gradually came to the conclusion that it was better that Parliament should make decisions about where, when the freedom of one class clashed with the freedom of another, the balance ought to be struck. Gradually, therefore, the judges abandoned their right to make new law, and it is clear from the work of the Law Commission that the courts would not develop this tort even though the Master of the Rolls believes that it is still possible in English law to do so.
That course was not taken in America. In 1890, two distinguished jurists, one of whom subsequently became a notable member of the Supreme Court, wrote an article for the Harvard Law Review which was of crucial importance in the development of the law in the United States, saying, in effect, "These are the cases in English common law. They are part of our law. Let us develop a law of privacy in the United States". Several States have done that. Some have passed legislation; others have developed it through the common law.
In Germany and France, laws have been developed which partially cover the whole range of privacy. They are inadequate; they are not comprehensive, and there have been difficulties regarding where the limits of the law lay. No one anywhere considered the whole subject as one subject in which there is one mischief to be dealt with until, in 1961, Lord Mancroft introduced in the House of Lords his Right of Privacy Bill.
To the surprise of the Press, that Bill was accepted by the House of Lords on Second Reading by an overwhelming majority. It went to Committee, and only for lack of time did it not go further. The interesting feature of that Bill was that it dealt only with intrusion by the mass media, by the Press, television and radio, and in its drafting, dealing with that restricted area, it was very similar to the Bill before us today. But it fell.
When I came into the House in 1966, it seemed to me that this was a subject which ought to be considered here, and I put down my Ten-Minute Rule Bill. I hoped that, after I had stirred some interest in the matter, even in the Press, 884 the Government would introduce a Bill. I know that the Lord Chancellor is particularly interested in the subject. The right hon. and learned Gentleman said that it is a Government matter. I entirely agree.
Ultimately, the Government must accept responsibility for this kind of legislation. I tried to induce them to do so. In 1967, they indicated in the Queen's Speech that they would set up a Select Committee to consider the whole question of privacy, but that part of the Queen's Speech never led to any move at all. The Select Committee was not set up. I deeply regret that. If we are to hear in the debate today, as the newspapers suggest, that the Government will offer a Committee now, I can only say that it would have been far better had that Committee been set up in 1967. Two years might have been saved.
At the same time as I was introducing my Bill, however, I knew that there was a conference about to start in Stockholm, called by the International Commission of Jurists of the Scandinavian countries but attended by lawyers from all over the world, to consider the whole question of privacy. All who are interested in this subject are indebted for the report of that conference, which set out clearly the need for a law and in its recommendations indicated that all member countries should do something to introduce a law of privacy.
In this country, the Law Commission took the matter up, and it held a seminar at Oxford in July, 1967, which consisted partly of jurists but very largely also of people from the mass media. It included, for example, Mr. Cecil King, Mr. Robin Day, Mr. Jeremy Isaacs, and a lot of people from radio, Press and television.
I was fortunate enough to attend that seminar. On the Friday evening when we discussed the matter, the wave of opinion was all against my suggestion that there ought to be legislation, but it was interesting to note that, on the morning of the following day, the discussion went entirely the other way. I venture to think that, by the time we came away, many who had begun the conference feeling that legislation was unnecessary had at least started to accept that the proposal was not without some merit.
885 The National Council for Civil Liberties set up its committee at that time, looked into the problem, and produced its very helpful pamphlet called, "Privacy under Attack". Any hon. Member who doubts the need for legislation ought to look at that pamphlet, for it sets out clearly the widespread nature of intrusion, even in our present society and before the real development of the technological revolution. Already, there are far too many intrusions.
I sent a copy of my Bill to "Justice". "Justice" set up its committee. This committee presented a report after two years of very careful and hard study. That report has been criticised as coming only from lawyers. We were careful to include in the membership of that committee Mr. Clement Jones, who was the editor of the Wolverhampton Express and Star—
§ Mr. Lyon
—a member of the Press Council, chairman of its Parliamentary Bills Committee, a former president of the council of the Guild of British Newspaper Editors and chairman of its standing Parliamentary Committee. During the whole two years of the discussion in the committee I do not remember Mr. Jones indicating that legislation was unnecessary. Indeed, at the end of the day he agreed that it was necessary
Mr. Jones was a member of the Press Council which, on the day when we produced this report, brought out what I think was a most dishonest attack upon the concept of a law of privacy, making no mention of the fact that our report had been produced after two years of study by a committee on which one of its own members had sat and had participated in the proceedings, and who could, therefore, inform it about the progress of thinking on the Bill. The Press Council itself had had a copy of the report for two days before it issued its own Press statement.
The committee also included in its membership, as one of the joint chairmen, a distinguished member of the Bar who had retired from practice, and who is now the deputy chairman of the Steel Board. The other joint chairman of the committee was a distinguished solicitor in 886 a firm which specialises in defamation and which has among its clients many of the leading national newspapers. One of the members was a former legal adviser to The Times. It cannot be said that in that committee there was not also a good deal of expertise outside the law. One of its members who had been a practising barrister at the Chancery Bar has now retired, and is a business consultant with a great deal of experience in the realm of computers.
It is true that I was a member of that committee, but the interesting thing is that during those two years the Society of Labour Lawyers also appointed a committee. The report of that committee comes down very nearly to the same conclusions to which our report came. In principle, its draft Bill is basically the same draft Bill that we produced. Can it, perhaps, be the case that anyone who looks at this problem for any length of time might come to the same conclusion? Might it be that when the matter is viewed dispassionately and away from the self-interest which has activated the Press, there is ultimately only one solution to the problem?
We do not claim omniscience on the "Justice" committee, nor do we claim that we were necessarily right in every respect, but we can say with honesty and conviction that we went through all the alternatives and came to the conclusion that this was the best way to deal with the matter.
I come now to the principles on which the Bill is founded—
§ Mr. Antony Buck (Colchester)
Before the hon. Gentleman leaves that part of his speech, would he not agree that whilst this is an admirable report—and as he was a member of the committee which produced it he will no doubt agree—perhaps one minor fault might be detected in it, in that not much evidence was taken from the Press side? It appears that evidence was taken from one witness. There appears to have been not very strong Press representation in the membership; and practically no evidence was taken from the Press side.
§ Mr. Lyon
One of the weaknesses, I agree, was that we not only did not take evidence from the Press, but did 887 not take it from a whole lot of other interested bodies which might have had some expression of opinion about matters involved in a law of privacy. In the nature of things, however, that was difficult for a private body. But we gave more than fair consideration to the Press as an interested body.
As I say, we had with us a defamation solicitor whose concern is very largely the litigation in which the Press might get involved and who was anxious throughout to avoid their being inhibited in any way in any of their reasonable activities. We also had the member of the Press Council who could advise us on the Press Council's fears about such a law. Before coming to our conclusions we also went into the published evidence of the Press Council, and of journalists who had written on the matter. However, I accept as a point of criticism what the hon. Gentleman has said.
I turn now to the principles on which the Bill is founded. When I first looked at the whole matter the one thing of which I was certain was that Lord Mancroft was wrong to isolate the Press and the mass media as being the only intruders who should be dealt with. I still believe that where Press intrusion takes place it is often of a most distressing character. I believe that, with the Government, the Press is the biggest intruder in the country. Its intrusion is largely justified, as Government intrusion is largely justified. It is not the biggest offender when it comes to unreasonable intrusion, but it does occasionally err in that respect, too. But I thought that it was necessary, to put the matter into its proper context, that the Press should be considered simply as one of the intruders. I therefore thought that a comprehensive approach was best.
The "Justice" committee also came to the conclusion, as I have indicated, that there are only three ways in which legislation might be helpful. The first would be to amend the existing forms of action in English law so that those parts of the law which already help to protect privacy were widened to protect it more. For instance, the law of nuisance could be widened. The law of defamation could be widened so as to apply not 888 only to a living person but to a dead person, as in the case of Sir Winston Churchill. We could widen the law on trespass so that instead of it referring only to property which a man owned or occupied in the legal sense it should also apply to occupation in the sense used in normal and ordinary conversation; that one was in the room and occupying it for normal purposes.
I can see the difficulty of trying to extend the law in that way. The difficulty is that one does not get a comprehensive solution for all kinds of intrusion that might take place and which would be offensive and damaging to the individual. The result of that would be that an individual might find that his case, which severely distressed him and which ruined his life, was not covered by a law designed to deal with these matters in this kind of compartmentalised way.
The same is true of alternative legislation which deals with these matters by looking at the kinds of intrusion, and, in particular, the methods that are used to intrude, taking each one separately—bugging, computers, the Press—and trying to find a law which would fit each one. Unless one is prepared to do it in every single type of intrusion one does not get a comprehensive law, and that leads to the same bitterness and frustration felt by those who are harmed by intrusion and then find that there is no legal remedy in their case as there is in other cases. To avoid that kind of injustice, one must have a comprehensive law.
Equally, however, one has the problem to which my hon. Friend has referred. We also have the problem that if we approach it from that direction and we have to make very technical distinctions between one type of intrusive device and another. We have been told that the Bill is redolent with ambiguities which have to be settled in the court, but if we take a complex area and try to decide where the line will fall in every concrete case we shall get litigation which is more complex than any Finance Bill or any Land Commission Bill ever was.
That is because we would be trying in every case to look ahead to what kind of intrusion might be offensive 889 and what kind might not be. I do not believe that it is possible to draft legislation of that nature which would lead to a measure of certainty and also to a measure of justice. Therefore, we came to the conclusion that this has to be comprehensive.
To me, the fundamental point about the comprehensive approach is not the way in which one's privacy is intruded upon that is offensive. If someone stands behind your curtain and listens to your secrets that is as offensive as if they had put a bugging device there. It is the principle of how far the freedom to protect your private life ought to interfere with the freedom of someone else to find out about your private life. It is the principles rather than the methods of intrusion which are of the essence of this problem, and the principles can be decided only in comprehensive legislation.
That is the way in which we approached this matter. Because we are only dealing in principle we can only phrase in general words, but the law is not without experience of general words. The law of negligence is the most comprehensive tort in our law. It covers more situations than any other tort in the law, from bad advice by a solicitor to his client, to knocking someone down on the road or the way in which one guards machinery against injury to one's employees. All these situation, are covered by the law of negligence, which is a comprehensive, flexible tort based simply on the notion of taking reasonable care. In every single case the court has to work out what is reasonable care within the given facts.
That was the approach we took in the Bill. We set out the basic principle that privacy is so important that it ought to be inviolate except for trivial intrusion, which do not matter. Then we said, "If you want to intrude, there should always be some justification for your intrusion. You should be asked to state the reasonable ground upon which you want to intrude." So we made a wide general offence of intrusion in the first Clause limiting it only by saying that it would apply only to "substantial and unreasonable." That is the most significant limitation.
§ Mr. Speaker
Interventions prolong speeches. Many hon. Members wish to speak in this debate. Sir Lionel Heald.
§ Sir L. Heald
I am sorry, Mr. Speaker, but this is a very important point. Does the hon. Member consider that Clause 9 would cover noise or not?
§ Mr. Lyon
No. It would not cover noise. I do not suggest that the Bill covers noise, but the right hon. and learned Gentleman said in the first place that this was a too general approach and then he said that it did not go wide enough and did not cover noise. He cannot have it both ways. I do not believe that noise is intrusion in any normal sense of the word. I do not think that any jury would believe it was, either.
What we then said was that it should be for the court in every case to say what was intrusion. The House may take exception to that. I know that there are some hon. Members who distrust lawyers. I have never been able to understand this distrust.
§ Mr. Lyon
The point is well taken.
The law has already to decide many of these difficult situations given to them by this House in the form of legislation. What we say is that although the courts in the past have often been bad at interpreting social legislation—legislation which deals with individual welfare—because the training and background and instincts of the English common lawyer do not approach law in this sense, when it comes to individual liberty the courts of England are supreme at interpreting and balancing the considerations that can be and ought to be applied.
We are saying here, give the courts the principles on which they should act and then in every single case try to get the court to give the balance. Where does one make the dividing line? The Lord Chancellor once said: "The difficulty about privacy is that it is a dispute between myself and myself; between myself wanting to know about other people and myself wanting other people to know about me."
§ Mr. Speaker
Order. The hon. Member must not think me discourteous, but I have appealed for reasonably brief speeches. Many hon. Members wish to speak in this debate.
§ Mr. Speaker
Order. I remind the hon. Member, with respect, that he has already spoken for over 30 minutes.
§ Mr. Lyon
I want to deal with the point about the defences. For the reasons which you have indicated, Mr. Speaker, I will do it very quickly.
During our discussions, we went through each of the areas of intrusion that we thought were reasonable. We tried to give a defence in each case. The one which has caused most discussion was the one that we drafted with the Press specifically in mind. We said that where the publication was in the public interest that ought to be a defence.
Publication means something rather wider than the Press use of the word. It means any communication either by words or by visual images. It would, therefore, cover to some extent inquiries. It would not—I accept this right away—cover all forms of Press inquiries. The difficulty is that the Press has no special privilege in the law. It is simply the same as every other individual. The balance has to be struck between the individuals who would be able to take advantage of a wider defence and those whose privacy would be intruded upon.
I give the House this one example of a real case against all the hypothetical cases that the Press has put forward. It concerned a policeman who began an association with a woman. His wife found out and persuaded her husband to come back to her. The other woman was jealous and went to see the Press about it. A Pressman came to see her and, later, he said to the wife, "What is all this about?" The wife said, "I am not telling you." The following day a headline appeared in a major national daily newspaper:Love Life of a Detective.As a result the family were hounded in their neighbourhood, they were ostracised, the children were ridiculed at school and the family felt that they had 892 to move from home, change their name and change their jobs. No one in the House would believe that that kind of intrusion was justified, yet that kind of intrusion took place fairly recently by a major national newspaper.
If we were to widen the defence any further it would not cover a case like that. Can the House really say that it is in the public interest that the little people like that, people who do not have a Press Council which they can really turn to, who do not have an establishment—like the significant figure who was in the news recently—to urge their case in the columns of The Times, should be neglected? Can the House say that it can neglect the needs of people in that state of society?
In my submission it cannot. In my submission, the Bill gives them some protection and ought to be given a Second Reading.
§ 12.41 p.m.
§ Mr. Jasper More (Ludlow)
Although I shall appear as an opponent of the Bill I would like to begin by paying my tribute to the hon. Member for Birmingham, All Saints (Mr. Walden), who has shown great courage in bringing this Bill before the House.
The hon. Member for York (Mr. Alexander W. Lyon) advocated the need for having what he called a comprehensive law. This is what this Bill attempts. It is a fact that we should recognise, despite all the available alternatives put forward by the hon. Member for All Saints, that to draft a comprehensive law is certainly the most difficult, and, therefore, I am prepared to say, the most praiseworthy alternative.
I have always approached this subject from what the advocates of the Bill would say was the wrong position, namely, that the major evil of the age is not publicity given to private matters but the privacy given to public matters; and it was, I hope, with that knowledge of my prejudice that I was asked to serve on the "Justice" committee by which the Bill has been fathered.
May I, as his name was mentioned by the hon. Member for York, make a brief reference to Mr. Clement Jones, one of the other members? Mr. Clement Jones is editor of the Wolverhampton Express and Star. I think that 893 his position on this matter was approximately the same as mine. He was invited to join the "Justice" committee for the same reason. It is not easy for the editor of a provincial newspaper to be regularly present at meetings in London at stated times, but I should like to say that I know that he was there as frequently as possible, but that he found himself in rather the same position as I found myself who for very different reasons, found it difficult to attend, because I found myself tied to this place; so that we were not able to be regular attenders, and, in fact, what we really did was to sit there on occasions holding what we might perhaps call a watching brief.
I want to say a word about the "Justice" committee, which is really responsible for the Bill. I do not think that it is much of a compliment to the members of that committee—I say this as one who did not make a real contribution to the work which was done—to say that what is needed is a real inquiry into the whole subject. The job which was done by the "Justice" committee was remarkable. It went into the whole question with extreme thoroughness and with extreme conscientiousness. I subscribe absolutely to what was said in a letter to The Times by the Secretary of "Justice", Mr. Tom Sargent, a few days ago, because this was an example of dedication by a number of very busy, highly-qualified persons really putting themselves to this highly complicated and very difficult subject for no other reason than their desire to serve the public good; and in that tribute I naturally include the hon. Member for York who, at all times, played a leading part in the committee's deliberations.
Dissociating myself, as I do, from the proposition that what is needed is a new and full inquiry into the position, I want to make just three points. Valuable as was the work done by the "Justice" committee, and even after what has been said this morning, I am still of the view that there are three additional things which need to be done before we get to the point of legislation on the subject.
The question of evidence has already been mentioned. This was not a committee which was set up, really, to take 894 evidence. I think that it is of the utmost importance that the journalist's side of this case should be heard. I regretted the rather hostile peroration to the speech of the hon. Member for All Saints about the Press. I am not an expert on the Press, but the Press, in my experience, consists of hardworking, hard-pressed reporters who have to find the facts; subeditors and editors who have to make quick decisions about printing; and legal advisers who have to make snap decisions about the liability of the newspapers.
I do not think that those gentlemen really view the object of their lives as being to make difficult situations for private people. They would all be very much happier if, for instance, the newspapers could come out every day with such headlines as "Average January weather in Stoke-on-Trent". They would have far easier lives if they could, but that is not really what the newspapers are for. They are there to keep the public informed and interested in matters of interest to the public, and that, very often, means matters which other people want to keep secret. So that is the first thing.
The second point is the major question, to which the "Justice" report gives us the most valuable introduction, and that is, how, if at all, this approach to the law should be developed. It is a matter of great regret that we have not already in this country a body of judge-made law. The "Justice" report points out that in America, where they base themselves on the English common law, a number of States have developed a law of privacy to a much larger extent than we in this country have. At the same time, I personally would regret it if Parliament were to take the view that the judges have washed their hands of this and that unless we do something there is no other way of doing it. We need not be as pessimistic as that. We have in the last few years seen cases on which, if need be, the law could be developed.
§ Mr. Alexander W. Lyon
Is it not the case that if we were to develop the law in that way the uncertainty of the law would be increased—each case being decided in a new area?
§ Mr. More
I agree at once that we would not have what has been pleaded for, a comprehensive law, because it would be law built up piecemeal, but, after all, that is the tradition of the English law—each case coming up being decided; that has been the basis on which we have made our law. I agree that it would be a long process and that in the interval there would be many areas of doubt so that no answer could be predicated in advance.
In spite of the fact that so many members of the "Justice" committee were lawyers, it would be of value if we could elicit from the Lord Chief Justice or from a body of judges their view of its work and of the legislative aspect of the matter and whether there would be a good prospect of there being built up a system of judge-made law in this country, rather than a parliamentary attempt to say what the law should be.
Speaking as one who has passed much of his life watching laws being passed here, I am very conscious that the law we make in this place has two undesirable results. First, it prevents judges from thinking for themselves. Secondly, it ties them to interpretation of whatever suitable or unsuitable language we put in our Acts. I should have thought it undesirable in principle, for Parliament to attempt to trench so much on that branch of common law which we call tort.
Finally, and much the most important thing, and in spite of what was said by the hon. Member for All Saints, and by the hon. Member for York, it is surely essential to have a thorough investigation on the technical side. The two motivations for the Bill have been, first, the alleged misdeeds of the Press and, secondly, the enormous technological developments.
We would all agree that something must be done about the latter. The hon. Member for All Saints stressed the impossibility of defining all these things, such as permissible use, permissible size, sale, ownership, and so on, and to define 896 what bugging devices are. I agree that this would be a most difficult thing to do, but the attempt should be made. What we really need is something like a standing technical committee to advise on technological developments which are taking place in bugging and distance photography, and this must be done in conjunction with representatives of the Board of Trade and the police, who would have to advise on the practical aspect of ownership, sale, importation, use, and so on. I think that these things are essential before any legislation is embarked upon.
There are other side issues. My right hon. Friend the Member for Birmingham, Handsworth (Sir E. Boyle) introduced recently a Bill on industrial espionage and that is another aspect which needs investigation. Many other hon. Members wish to speak, however, and I will, therefore, refer to only one other thing—the rôle of the Press Council. I am sorry that the council should have been criticised as it has been. It has been in the position, like the rest of us, of having had to do something at very short notice. That is a misfortune of this operation. It is unlucky that the hon. Member for All Saints should have chosen this day for the Bill.
I think that everyone will agree that the Press Council has transformed the situation as between the public and the Press. We are enormously indebted to the work of Lord Devlin, who until recently was its chairman, and we have already reason to praise the work of his successor, Lord Pearce.
The Press Council makes points in its statement which the House needs to take very much to heart. First—and this is a fair comment—it really is not true, as hon. Members have tried to establish that this grievance is widespread. Obviously, there are cases and there are occasional disgraceful cases. But what this House has to consider is not the existence or non-existence of disgraceful cases. We have to consider the balance of interest. Secondly, on the balance of interest, the Press Council ties itself, quite rightly, to the principle which should override everything else—that is, that any Act of Parliament which could in any way result in the suppression of truth is dangerous.
897 It is the function of the Press to see that the truth is not suppressed and it is the function of Parliament to guarantee that this situation is maintained. If this has to be carried further, the Press Council says that it must be the responsibility of the Government to do so. I hope that, before the Government do so, they will decide that further inquiries are called for on the three aspects I have mentioned. At the same time I hope that the great work that has been done by the committee of "Justice" will not be forgotten.
§ 12.54 p.m.
§ Mr. Arthur Davidson (Accrington)
Before my hon. Friend the Member for Liverpool, Walton (Mr. Heller) raises his eyebrows at yet another lawyer getting up, I assure him that, if I have any reputation in the House at all, which is doubtful, it is that I am reasonably short-winded.
I was interested to hear the opening remarks of my hon. Friend the Member for Birmingham, All Saints (Mr. Walden). He made a brilliant speech, as he always does, but I did not get the impression that he was well disposed towards the Press. It was not one of the most moderate of balanced judgments about Press activity that I have heard in this House or outside.
I agree, however, with a great deal of what my hon. Friend said about encroachments of what I would call technological devices into the privacy of the individual. I agreed particularly about the use which private detectives make of bugging devices. This should certainly be dealt with in a separate Bill. I am astonished how easy it is to become a private detective in this country. It is equally astonishing that there is no registration of private detectives.
It is even more astonishing and also reprehensible that bodies such as the solicitors, who, one would think, would exercise reasonable care over the sort of people they employ in carrying out inquiries, can lightly employ private detectives of very dubious background indeed to carry out what they may think at the time are legitimate inquiries.
§ Mr. Davidson
I am aware of that and it is disgraceful that it should be so.
I am also astonished that some local authorities appear to employ private detectives to carry out some of what I would call their bailiff duties. This is a state of affairs that no one could support and I would lend my name and modest support to any Measure that my hon. Friend the Member for All Saints or anyone else brought to the House to put an end to this sort of relationship with and behaviour by private detectives.
But, of course, this is far removed from a general law of privacy. I am concerned about the effect such a law would have on the Press. I do not think that it is a secret that I have spent most of my professional life as a newspaper lawyer. I have to advise on the day-to-day problems of newspapers. After that, it goes into the hands of someone like my hon. Friend the Member for York (Mr. Alexander W. Lyon). Nevertheless, I have to deal, in common with other newspaper lawyers, with day-to-day problems of what should or should not go into a newspaper. My hon. Friend the Member for All Saints launched an amusing and at times brilliant attack upon what he described as the "El Vino type of journalism".
§ Mr. Walden
I simply use El Vino's in passing. I did not, as an habitue of the place, link it with that type of journalism. I launched an attack on the misuse of the term "investigatory", the "exposure journalist". It was not an attack on El Vino's.
§ Mr. Davidson
I hope that my hon. Friend will buy me a drink at El Vino's when I am there, as I occasionally am.
My hon. Friend launched an attack, then, on what he has described as the "investigatory type of journalism", which he linked, nevertheless, with El Vino's, very much deliberately so. He seemed to imply, at any rate, that the investigatory type of journalism plays, despite what the Press may say, a rather minor part in Press activity and perhaps should play such a part.
I take issue with my hon. Friend very much indeed. The investigatory 899 part of journalism is a very important part of modern journalism, and will become increasingly so for the reason that more and more complaints come into newspapers about the behaviour of large organisations. Would my hon. Friend suggest that the exposure of, say, the Savundra case, which was started and initiated by a newspaper, was not a very valuable contribution by that newspaper?
§ Mr. Walden
No, I would not, and I would praise the newspaper, its editor and the journalists who worked on it. My hon. Friend is well aware that I am not aiming at journalists who investigate official incompetence, bureaucratic muddle and all the rest. What I am aiming at are the men who go out, we are told, with bugs and other devices, to find out whether Tom Traddles is a warlock and his wife a witch, or that the sexual habits of a peculiar faction are not such as would be approved of in Surbiton and who intrude, inquire and often publish on that basis. My hon. Friend must not be so disingenuous as to think that the House believes that exposure journalism is all about catching Savundras.
§ Mr. Davidson
if nothing else, I am not disingenuous. Like my hon. Friend, I condemn the story of the missing vicar and the missing 18-year old Miss Traddles. Of course I condemn that sort of thing, and certain sections of the Press do themselves a great disservice when they indulge in that sort of story. It is of no conceivable public interest at all. But when one is investigating an investigation into perhaps jockey bribery, or football bribes, or possibly the financial instability of a company to which the public are subscribing, there is no guarantee that by the time the inquiries are finished it will be in the public interest. Under the Bill a newspaper would probably be completely inhibited from starting that sort of inquiry.
In the "Justice" report reference is made to a law of privacy in America and says that the American Press seems to get along with it quite well. Possibly it does. But as my hon. Friend knows, and certainly as my hon. Friend the Member for York knows, one cannot compare the legal restraints in this 900 country on the Press such as the law of defamation, the law of contempt and the Official Secrets Act with the virtually non-existent legal restraints that exist in America. In America, there is no law of contempt at all. There is hardly any law of defamation—and if there is, it is not observed in the slightest. Furthermore, they probably have no official secrets at all.
Is my hon. Friend suggesting that he would exchange for his law of privacy the restraints that exist already? Would he drop the law of defamation and the law of contempt? I am sure that he would not put that proposition forward. I would not like to see no law of contempt. I would not like to see trial by newspaper, or the complete exposure of a person's criminal record before he ever comes to trial before a court, as happens in the United States. On balance, there is perhaps an arguable case for amending the law of libel, and possibly for amending the law of contempt. My right hon. and learned Friend the Attorney-General, in the rather erudite debate on the Freedom of Publication (Protection) Bill, which was received with a remarkable lack of interest by the House, thought that the balance is right and it may be that he is correct.
§ Mr. Alexander W. Lyon
My hon. Friend asked whether we think that as a sort of quid pro quo there should be amendments of the other aspects of the law. The answer is that in the "Justice" report we said so. We reprinted as an appendix the recommendations of a former committee about amendments of the law in relation to the Press which were the basis of the Freedom of Publication Bill. We said that ought to happen.
May I ask my hon. Friend this question? In the case he quotes of investigating Savundra before one knows that he is a rogue, there is a balance to be struck where the Press might be at risk. Is it better to allow that journalist to be at risk and also to give a remedy to Miss Traddles in her situation, or to leave her without a remedy and allow journalists in those exceptional cases not to be at risk?
§ Mr. Davidson
Of course, there is a balance to be struck. There is also the 901 balance to be struck as to whether many thousands of people who invested in the Savundra or some other empire should be protected or whether the one isolated case quoted by my hon. Friend involving the private detective, which is quite insupportable and wrong, should be allowed to happen. I believe that the newspaper should be ashamed to publish it. It is a question whether one gives extra protection to that one individual but deny to thousands of people the exposure of a company, for example, by publishing a story at the right time. There is a danger that the Bill will not provide for that sort of case and I know that this is not intended by my hon. Friend.
Although my hon. Friend expressed some criticisms, to put it mildly, of the attitude of the Press to this idea, he would be a little surprised if the Press had received his Bill in a kindly fashion. I believe that he is right. They do not want the Bill or anything like it. I am not surprised because they regard it as a severely inhibiting factor to their carrying out what they regard as legitimate inquiries in what ultimately might turn out to be in the public interest.
§ Mr. Robert Maxwell (Buckingham)
Has my hon. Friend, as a lawyer working in the newspaper industry, any concrete suggestions to make as to how the public could be protected against the kind of investigatory journalism which, by slander and innuendo, goes out in search of a story? What protection would he provide to the public where in such investigatory journalism a person is slandered and libelled? Since the law does not give that individual the right at the moment to have the case brought through legal aid, that person at present has no remedy. What I object to in the howling of the Press against the Bill, is that it has—
§ Mr. Davidson
My hon. Friend knows that if a publication is defamatory then he has the right to sue in the courts and to receive substantial damages. I am not here to defend the Press. I do not wish to appear to be their spokesman, since I am not. I am trying to give a balanced view on the Bill. My hon. Friend well knows that, on balance, most 902 newspapers are very careful about what they print. They are worried about the law of libel, and they regard the damages awarded by juries in such cases as excessive. My hon. Friend may disagree with me, but that is the case.
I know from personal experience the care which goes into vetting what has been called the "newsight" investigatory type of article. I know the number of stories which are never published because, although the editorial staff knows that the facts are right and that some sort of fraudulent operation is being carried on, one can never be certain that those who have supplied the information will be able to appear in court and support it.
Frequently, members of the public say, "Why was not I told about this operation beforehand? Why was not it in a newspaper? Why did I invest my money in this way and then, three months later, discover that the company is bankrupt? "The reason is that the dangers of heavy libel damages being awarded against the newspaper, even if they are remote, are a severely inhibiting factor. In my view, the law of libel plus the Press Council are sufficient protection for the public. I hope that that will satisfy my hon. Friend, though I doubt it.
I do not suggest that every legitimate complaint goes forward to the Press Council. Obviously, it does not. However, we shall never be able to have anything resembling a free Press without someone getting hurt somewhere down the line. If a widow is interviewed, of course it is offensive to her. It is terrible for parents to read that their daughter or son is in trouble. That causes great hurt to them. It is impossible to base an argument on the fact that, somehow, we could have a perfect state of affairs in which there was a free Press and no one would get hurt. It is not possible.
For every legitimate complaint going to the Press Council, there are innumerable trivial and inconsequential ones. People complain because they resent any interference by the Press. We all do. If the Bill became law, in practice no one in this House could honestly say that he would not attempt to invoke its provisions. We do not like giving private information of any sort unless it 903 suits us. We are all a little reluctant, and people know that to be the case.
§ Mr. Lubbock
But anyone can refuse to answer questions put to him by a newspaper. Is not that the protection that Members of Parliament have against inquiries from newspapers which we think may be illegitimate, and cannot any other citizen do the same as a means of protection?
§ Mr. Davidson
The hon. Gentleman is right. One can refuse to answer questions and, in most cases, that is sufficient. That is the position under the law. If it were made a civil offence in which damages could be claimed for intrusion into a person's privacy, that person could say, "I shall sue for damages. This is a gross interference with my privacy."
§ Mr. Davidson
To ask certain questions. I accept entirely my hon. Friend's motives, but his proposal would tilt the balance completely the wrong way.
This subject is a very important one, and I do not say that at some stage some sort of law of privacy should not become the law of the land. But such a major change in the status of the Press should not come about without a top-level inquiry by the Government. After that, I would study their findings. However, at this stage, while I accept my hon. Friend's good faith, I feel that this is not the way in which to tackle this very important problem.
§ 1.16 p.m.
§ Sir John Foster (Northwich)
It may he that I should not claim to be short-winded, because that sometimes leads one to a pitfall.
The debate so far has shown that everyone is agreed that something should be done about what might be put under the general heading of electronic surveillance, data processing and so. The debate has ranged over the effect of the other kind of invasion into privacy and a person's right to be left alone. The opponents of the Bill seem to think that no legislation is necessary for that. But they should bear in mind that it has two aspects, 904 since the safeguard of the right of privacy is also a safeguard of the right of free speech. If there are a lot of bugging devices about, one is less inclined to give vent to free speech. It has a double aspect.
At the end of the day, after paying tribute to the value of the debate, congratulating the hon. Member for Birmingham, All Saints (Mr. Walden) on bringing in his Bill, and paying tribute to "Justice", in which I declare an interest in that I was Chairman of the Executive Committee which chose the members of the committee, I suspect that the Home Secretary will say that this is a very important matter. He will refer to the statement by the Front Bench spokesman from this side of the House that it involves a clash between two different principles—the defence of free speech and the defence of privacy—and that it should not be left to a Private Member's Bill. After all that, the right hon. Gentleman will say that we ought to have a thorough investigation with evidence. He will probably adopt the point of view of my right hon. and learned Friend the Member for Chertsey (Sir L. Heald) and say that we have been rushed into it.
However, no one has been rushed into it. This is a subject which has been known to all educated Members of Parliament and the community for umpteen years. Those Conservative hon. Members who say that they have been rushed into it obviously have not read the Central Office publication entitled "Computers and Freedom". The Law Commissioners had a seminar on it at All Souls. There has been a European conference on it in Stockholm. The problem is well known.
What the Government should say today is that, by and large, they believe in the way in which the Bill has taken the subject in hand, that they support it, and that they will amend it in Committee. We know that they will not do that, and, instead, that they will announce this far-reaching investigation.
I hope that the Bill will be given a Second Reading. I hope, too, that such a committee or commission will be set up by the Government and that it will bear in mind the distinction made by my hon. Friend the Member for Ludlow (Mr. More), when he pointed out that the invasion of privacy by the Press has 905 been dealt with adequately in America by case law. In America, judge-made legislation has dealt adequately with it.
The hon. Member for Accrington (Mr. Anhui Davidson) said that America has not got any proper contempt law, official secrets law or libel law. That is a defect in its system. If somebody says that the law of privacy is all right it is not an answer to say that its law on defamation, official secrets and contempt ought to be improved and we should also improve our laws about privacy.
§ Mr. Arthur Davidson
Does the right hon. and learned Gentleman agree that if the Americans were confronted with stricter libel and contempt laws they would not be so sanguine about their privacy laws?
§ Sir J. Foster
Yes. American privacy law has grown from the English common law case law. The Victorian judges, unfortunately, would not extend the action of trespass to protect privacy. They made a bosh shot in a case concerning Marie Corelli, and from then onwards there was no hope.
It is no good my hon. Friend the Member for Ludlow saying that he hopes that the judges will take this in hand. They will not take it in hand, although the Master of the Rolls wishes that they would. It is too long to wait. We have invasions of privacy now. The way that the law is decided in most of the American States approximates to the way that we wish the law to be administered in this country if the Bill is passed.
Objections were put forward by my right hon. and learned Friend the Member for Chertsey. He said that there is nothing about noise here. This is a matter of semantics. My right hon. and learned Friend said that anything that affects the privacy of an individual ought to be included in the law about privacy. But it is not my understanding, nor that of the hon. Members for York (Mr. Alexander W. Lyon) and All Saints, that the law about privacy should include excessive noise, unpleasant smells and vibrations which cause discomfort.
I suppose that the biggest invasion of privacy is to kill somebody. But we do not want murder and manslaughter in a Right of Privacy Bill. It is no complaint 906 on the part of my right hon. and learned Friend the Member for Chertsey to say, "It is no good having a privacy Bill, because one of my constituents wrote and asked, 'If I am killed, am I protected by the Bill, because I regard my being killed as one of the greatest invasions of privacy that there is'." With respect, my right hon. and learned Friend is splitting hairs and attempting to enlarge the scope of privacy to say that the Bill does not deal with that. The Bill deals with invasions of privacy. This is on the non-electronic side. It deals with the right of a man to be left alone. Untrue facts would spoil his image, and so on.
I believe that the Press is frightened of something which should not frighten it. I am more in favour of altering some of the law relating to the Press than many hon. Members. I am probably alone in believing that a Press man should not be made to disclose his sources of information. I am in favour of amending the law on defamation in favour of the Press, because I think that it plays a great part in disclosing possible abuses.
The debate between the hon. Member for Accrington and the hon. Member for York was entirely misconceived. Dr. Savundra was protected by the law of defamation. If he had objected to certain facts he would not have had a right of action under the Bill for invasion of privacy, because the answer would be, first, that they were true, which would be a defence to defamation, and, secondly that it was in the public interest to disclose them.
§ Mr. Arthur Davidson
I agree with what the hon. and learned Gentleman says. But this would only be the case after the story was published. He would not have had that protection at the start of the inquiry. In other words, the inquiry might never have got under way if we had had this law of privacy.
§ Sir J. Foster
I do not agree. The questions would have been asked and either he would have refused to answer or he would have answered them truthfully.
The Bill attempts to deal with the matter in a general way. Everybody agrees about the electronics side, and I think that this is the right way to deal with it.
907 My hon. Friend the Member for Ludlow attempted to say that we should have a Standing Committee. But that Standing Committee would not cover, say, a person who has one of those telescopes which make somebody a quarter of a mile away appear as though he was two inches away. I do not know how one would register such a complaint with the police and prevent a man turning his telescope on an open bedroom. However, if he publishes what he is doing or makes a note of what he sees, I think that could be stopped.
Electronic devices work both ways. There was a case not long ago involving a detective who was having an affair with his client. While he was making love to her he said, "I am a clever detective, because I have put a bugging device under the bed of a couple that I want to catch out in adultery, and I have got it." At the same time, there was a bugging device under his bed which recorded that conversation. So it would be much better to have some control over these electronic surveillance devices.
One possibility not covered in the debate so far is the computerisation of all available information. It might be possible, under regulations, for notices to be served on people in the creditworthiness business or who deal with polygraph results of employer selection or personality tests. I should not go as far as the hon. Member for All Saints in saying that they would be unwarranted intrusions on privacy. The remedy is to find out exactly what is available so that people can have some control over perhaps false information fed in either by ill-disposed persons or by mistake. We all know instances where that has happened.
I am not hopeful of preventing the Government setting up a committee, but I hope that that committee will not be given such wide powers of reference and such enormous scope that it will delay the matter for too many years. The problem is known. We do not really need any more evidence. The difficulty is finding a solution. Evidence is available all over the world. If the committee is at all law-minded, it will find that the right solution is put forward in the Bill. Certainly on the electronic side something 908 should be done quickly, because abuses are very widespread and the protection of English law is very little. Unless there is trespass, as was pointed out by the "Justice" committee's report, a patient in a hospital or a guest in a hotel room has no redress against things being found out.
On the other hand, I think that some of these intrusions are sometimes necessary. The nine volumes, amounting to several million words, of the Mafia conversations in New Jersey were necessary to enable the United States Government to fight organised crime. That is provided for in the Bill by saying where it is lawfully authorised.
I do not subscribe to the general criticisms of the Press that have been put forward in some hon. Member's perorations. But I criticise the Press for trying to put off what it considers the evil day by supporting the Government's desire for an all-embracing inquiry. That is really a —"device" is perhaps too strong a word—method of putting off something which is rather tiresome in an election year. It is no good upsetting the Press in this year. It is better to put it to a committee. I think that the value of this will be to show, whatever committee is appointed, the right way in which to proceed with legislation for the protection of privacy.
§ 1.30 p.m.
§ Mrs. Renée Short (Wolverhampton, North-East)
I should like to add my congratulations to those which have been offered to my hon. Friend the Member for Birmingham, All Saints (Mr. Walden) on introducing his Bill. This is a complicated issue. Everyone who has spoken seems to have schizophrenic views on the Bill, but I think that we should be grateful to my hon. Friend for making it possible to discuss the issue.
As the hon. and learned Member for Northwich (Sir J. Foster) said, this is a conflict of principles, and this is what really makes the whole thing rather difficult. Everybody who has given any thought to the matter must be concerned about the rapid growth of spying devices of all kinds which infringe on peoples' privacy, not only for employment and business reasons, but for private reasons, and when one considers the amazing 909 variety of devices which can photograph small print at a distance of several hundred yards, which can bring people into closeup and which can record conversations from a long way off, and even do all these things in the dark, one realises that this is obviously a matter of great concern to everybody, and that, clearly, something must be done about it.
It is reprehensible that pillow conversations should be heard by anybody other than the two people concerned. Everyone was shocked when it was disclosed in the Press some time ago that an inquiry agent acting on behalf of one party in a divorce inquiry had used that method to get information which would not normally have been open to him.
My hon. Friend the Member for All Saints referred briefly to developments in the United States, where this searching and dragging out of information by these methods had become a highly sophisticated industry, but people do not realise just how much of this sort of thing is going on in this country, too. My hon. Friend deserves the thanks of the House for making it possible for this sort of information to he brought to the notice of the people.
In this country we have a large credit organisation which carries out a considerable amount of investigation on behalf of firms. It is generally done for large firms which want to find out what their smaller competitors are doing and what kind of order books they have, and so be able to forestall them and put them out of business. This same firm also carries out investigations on behalf of firms engaged in hire-purchase transactions.
As my hon. Friend said, this is a legitimate business. Television sets are now a recognised piece of equipment in people's homes. Because of the modern standards of living, everybody thinks he ought to have a television set; but let us not forget the difficulties which a television dealer may encounter. Most of his sales are on hire-purchase. Unless he is satisfied of the creditworthiness of those who wish to buy sets from him, he may find that after six or nine months the purchaser defaults on his payments, with the result that he, the dealer, is left with a second-hand television set, one which is expensive to buy initially 910 but almost has to be given away when it is second-hand.
That is one small example of the legitimacy of hire-purchase inquiries, and I am sure that everyone would support that practice. The issue here, however, is the illegitimacy of passing on information to outside persons when that information has been gained for a proper reason.
This inquiry organisation claims that by 1980, which is not very far off, it will have files on 80 per cent. to 90 per cent. of all British householders. That means all of us, presumably-80 to 90 per cent. of all Members of this House. It also claims that it now has information about 4 million people in this country and that to its list it adds about 40,000 names a week. This is quite horrifying. It means that all kinds of information about a cross-section of society are being obtained by this firm and filed for future reference.
This information can be obtained very cheaply. Apparently the firm has about 2,000 clients for the information that it has collected. For 2s. it is possible to discover whether one's name is on the black list, and for 10s. 6d. to get a full status inquiry, which, again, is cheap. For that the inquirer will he given information about county court records, the length and type of employment of the person being investigated, where he lives, what his local reputation is, and the status of his local accounts, which presumably means whether he is on the right side of the local firms with which he deals.
The director of this firm said, perhaps facetiously, but perhaps not—I would not know, but I do not rule out the possibility of its being true—that it was possible to say not only whether someone's credit was good, bad, or indifferent, but also who someone slept with on a previous night, which seems to support the argument put forward by the hon. and learned Member for Northwich. This may be a distant prospect, but, on the other hand, it may not be quite so far off, and it is something which we must all view with great concern.
Referring to the hire-purchase side of the problem, which I think we all accept as legitimate, the same director said 911 that 2½ million people default on hire-purchase debts every year, and that this represents about 10 per cent. of the £1,000 million hire-purchase that is taken out. That is a considerable amount of money.
It also seems that, since we have taken the dirty business out of divorce law investigations in that we have removed adultery as the main ground for divorce, detective agents who were employed largley on divorce inquiries are now switching over to carrying out investigations for this kind of agency, and that they are using these electronic devices. They carry out industrial espionage as well as these more doubtful investigations into peoples' private lives.
I think that everyone will agree with my hon. Friend when he says that no further investigation is required into the methods and techniques used for obtaining and storing this information and handing it to other organisations when requested, but when he deals with the Press I join those hon. Members, on both sides of the House, who say that this goes too far. I am not speaking on behalf of any newspaper. I am not speaking on behalf of the N.U.J. I have no retaining brief from any newspaper to give advice of any kind, but I have done a good deal of journalism in my time, including quite a large number of in-depth investigations into private individuals.
I think that the responsible Press carries out its investigations in a completely ethical way. I am sure that all those who are concerned with the good standard and name of the British Press would agree that the harassment of individuals, firms or any organisation by some newspapers is to be deprecated, and that it is for the Press Council and the industry itself to put the matter right.
I should be against the introduction of legislation further to fetter the Press because I think that a free Press is something which we should all guard very jealously and should regard as something which is, in the long run, to the advantage of the individual.
§ Mr. Niall MacDermot (Derby, North)
Would my hon. Friend say why she thinks that there is anything in the Bill which would inhibit the Press in carrying out what she describes as the good type of investigation?
§ Mrs. Short
I hope to come to that point towards the end of my remarks about the Press, when I will endeavour to answer my hon. and learned Friend's point.
I would agree with what has been said if my right hon. Friend the Home Secretary says that he will need to set up a rather long-winded committee of inquiry. Inquiries have been carried out, and, without going back in legal history as far as my hon. Friend the Member for York (Mr. Alexander W. Lyon), I should have thought that there was sufficient information available to my right hon. Friend and that sufficient investigations had been made for him to come forward pretty quickly with the kind of legislation which we need. But the Press should not be included in this Bill at all.
In 1939, for six or seven years—I am not sure of the date when it finished its work—a committee of the Lord Chancellor investigated the law of defamation and took evidence from witnesses who felt that there should be legislation of the kind which my hon. Friend the Member for All Saints proposes. These witnesses said that the law of defamation should be extended to bring the invasion of privacy within its scope as the subject of criminal proceedings or civil actions.
The Lord Chancellor's committee considered the representations very carefully and decided that what the witnesses' advocate had asked for was not practicable. But it added that difficulties which confronted the committee should not form an obstacle to action by the Press. Then the Royal Commission on the Press, which was sitting more or less concurrently with the Lord Chancellor's committee, added this as a recommendation which ultimately led to the setting-up of the Press Council in 1954. The creation of the Press Council and the influence which it has had have indicated the way in which we should go—that a system of voluntary discipline exercised by the Press on the Press is much more preferable to introducing legislation such as that proposed in the Bill.
My hon. and learned Friend the Member for Derby, North (Mr. MacDermot) asked me why good investigations by the Press would be inhibited by the Bill. The fact that the Press, the newspaper proprietors, the Institute of Journalists 913 and the N.U.J. were not consulted during the preparation of the Bill rather indicates that the case of the Press has not been taken into proper account by my hon. Friend and those who support his Bill. It is, I think, clear that the Press would be inhibited if a person got wind of the fact that he was being investigated and then applied for a writ to stop the investigation, as he could do under the Bill.
It could mean that perfectly legitimate inquirie, being made by the Press in the public interest—inquiries which were supplementing and helping the inquiries of the, police—could be inhibited and prevented by a person applying for a writ. Several of my hon. Friends shake their heads, but that is the feeling of the responsible Press about the Bill. If the Press, journalists and newspaper proprietors had been consulted before the Bill was prepared, possibly this difficulty would not have arisen, and it would not have prevented some people from supporting the Bill.
In cases like the Messina and Kray cases and many murder investigations, the Press pursued protracted and detailed inquiries which helped the police. I am sure that my right hon. Friend the Home Secretary would be the first to say that on many occasions the Press has given considerable help to his Department and the police. But as long as there is the danger and fear that the Press will be inhibited in carrying out its legitimate duty, this part of the Bill should be amended. I should like to see it excluded from the Bill.
§ Sir J. Foster
It would seem that the Press is fully protected by Clause 3(b), which refers tothe defendant's actsbeingreasonable and necessary for the protection of the person".The fact that the Press may be unduly sensitive should not be a reason to prevent the passing of a good Bill.
§ Mrs. Short
Anything which is likely to prevent the truth from being ferreted out or inhibits legitimate inquiries by the Press should be carefully considered before we put it in the Bill and then find that we are in trouble.
914 In the interests of brevity and the number of hon. Members who still wish to speak, I conclude by saying again that my hon. Friend the Member for All Saints has done a great service to the House by enabling us to ventilate these points. I cannot agree entirely with him, but if he or someone on his behalf can give an assurance that a close look will be taken at the parts of the Bill which affect the Press, I will not vote against the Bill.
§ 1.47 p.m.
§ Mr. Angus Maude (Stratford-on-Avon)
Clearly, no one has the slightest doubt about the sincerity and good intentions of the hon. Members for Birmingham, All Saints (Mr. Walden) and York (Mr. Alexander W. Lyon), and we are all grateful to them for enabling this very important subject to be debated. I think no one doubts that there is a need for action to improve the enforcement of existing sanctions against the older invasions of privacy and for fresh legislation to deal with some of the newer technological invasions of privacy.
Nevertheless, I should not have felt it necessary for me to speak against the Bill, or, if the need arises, to vote against the Second Reading unless I thought that there was more wrong with the Bill than could be put right by a few Committee Amendments.
I believe that the principle of the Bill is wrong. It is a serious and important matter to create and to try to write into our law a new right for the individual, which has not in the past been the way in which the spirit of our law has developed. If such an important innovation is to be made, it is for the Government to do it and not for a private Member through a Private Member's Bill.
I cannot in the least agree with the hon. Member for York that this is analogous to the tort of negligence. It is a quite different thing to impose a duty on individuals and creating a new right for individuals. The imposition of a duty can be much more precisely specified and it is in line with the general spirit and development of our laws. The creation of an individual right is not.
We have been told—it is, of course, true—that we are under some obligation 915 to do something about this, because of our adherence to the European Convention on Human Rights. I do not accept that signature of that Convention compels us to act legislatively in this way. I am certain that the obligations which the Government have undertaken as signatories could be perfectly well met by the provision of specific remedies against specific infringements of privacy.
Nor can I accept what my hon. and learned Friend the Member for Northwich (Sir J. Foster) said, that there is no need for the Government to act or to set up a committee to discover this because all the evidence is already available and everything about the subject is known. I am sure that this is a matter for Government legislation rather than private Members' legislation and that the Government would be right to have this matter further investigated at an expert level before introducing legislation of their own.
I say this not because I think that any more evidence is needed to show that we need legislation of a kind or that any more evidence is required to show the dangers of the devices available or the different kinds of invasion of privacy which are possible. But what surely needs much more expert and technical investigation than has hitherto been carried out is, what are the remedies and how are they to be enforced? There is a great deal of technical discussion still to be done about this and the great deal of technical evidence to be taken.
§ Mr. Maxwell
Before the hon. Gentleman leaves the principle which he objects to the Bill introducing for the first time into our laws—namely, a right of privacy directly instead of, as it has been, indirectly—would he not agree that the public are of the opinion that the right of privacy exists, but that the trouble is that that right has been given only so far in our legislation indirectly and that it is riddled with holes and abuses? What the Bill seeks to do is to put that right.
§ Mr. Maude
I take the hon. Gentleman's point, but I do not believe that he is right. I do not think that the fact that ordinary people believe that a right exists necessarily means that the law 916 should try to create and write into the Constitution this right. There are many rights which people think they have and of which the law takes no cognisance at all. It is also surely true that it does not so much matter whether one ought to have a right as whether one can, by this method, and taking it this way around enforce the thing effectively. This is why I believe that the Government would be right to set up some kind of Select Committee to investigate the technical difficulties of enforcement.
After all, there are plenty of remedies against specific invasions of privacy now. My hon. and gallant Friend the Member for Down, South (Captain Orr) referred to this in an intervention. Under Post Office legislation, under wireless telegraphy legislation, there are all sorts of sanctions against unlawful transmission of wireless signals which would include the bugging devices, of course. But they cannot be enforced. One cannot enforce people who buy Japanese walkie-talkie sets and use them for their private amusement.
The fact that the difficulty of enforcement or even of detection is so great in no way, as the promoters have suggested, means that their way of dealing with this problem is necessarily right. They say that it is no good proceeding the other way by specific sanctions against specific infringements, because one cannot enforce them. But they cannot enforce this either under their method.
What happens, for example, if someone infiltrates a bugging device on to someone's property or, indeed, on to someone's person? Under their Bill, it is an invasion of privacy and the man affected has a right to go to court with a specific request to the law. But he has the right now to seek a remedy under the law of trespass. The difficulty is discovering the thing and enforcing it, but it will not be easier under the provisions of the Bill.
§ Mr. Lubbock
Such a man does not always have the right of action for trespass, because the device may not be on land owned by the victim.
§ Mr. Maude
I was about to come on to that.
The hon. Gentleman is right, of course, but the planting of a device on someone's 917 property is already covered, but the point is that it is still no easier to discover it because there is a remedy at law against trespass.
But one has to approach this from a different angle. One cannot, obviously, to take another example, impose a general ban on the existence or the ownership of telephoto lenses, because one would never get a decent photograph of a cricket match if this were done. But there is a difference between the use of a telephoto lens for that purpose and its use to photograph someone from outside his property to inside his property when perhaps a newspaper has been refused access to the property to take a photograph of someone in the news.
This is identifiable as an infringement of privacy and can be easily prevented. The same is true of the long-range eavesdropping devices. One can specify all these infringements and the sanctions against them. They will be very difficult to enforce, but they will not be any more difficult to enforce than is the right of of the individual which the Bill purports to set out—
§ Mr. Alexander W. Lyon
I do not agree about enforcement, because the difficulty of enforcement is a weakness of any legislation. But if there is a general right, with the risk, if one is caught, of specific damages, that in itself will inhibit people from doing these things.
§ Mr. Maude
That is questionable, but I 'was coming on to the alternative. The hon. Member is reduced to arguing, in favour of the approach of his Bill, that if one has a right, therefore there is the deterrent effect of substantial damages. But one can provide that deterrent effect of substantial damages or even of fines or imprisonment by legislation aimed at specific sanction against specific infringements. This is my whole point.
There is nothing, for example, to prevent the Government from legislating to say that the ownership of certain kinds of electronic or long-range visual devices shall Le illegal except under licence—
§ Mr. Maude
Some of them, yes. —and the penalties for the unlawful possession of these things without licence 918 can be made very much larger than they are now. One can produce precisely the same financial deterrent which would be possible under the method suggested by the hon. Member for York. It should not be difficult for a licensing authority to decide what sort of firm, organisation or individual was likely to have a genuine need, for ethical purposes, for this equipment.
This is only one kind of suggestion which I think that a Government committee could properly consider, taken in conjunction with the difficulties of enforcing all these things.
But which will be the more difficult to enforce? I maintain that the right which the Bill tries to set up would be just as difficult to enforce as the specific remedies which I am suggesting. In addition—this is what tips the balance against the Bill—the Bill introduces certain risks which do not exist at the moment. We know that the Press is at risk at present if it publishes something which is defamatory and for which there is not the defence of public interest or whatever. It is quite new to introduce a risk to the Press of actually conducting inquiries to find out the truth. This is something which we should at least view with apprehension.
I understand the fears. The hon. Member for All Saints and I are both journalists of a kind and have been journalists of other kinds. To that extent, we both have an interest. Because we both have been journalists and both are journalists, we understand the dangers inherent in the Press and some of its methods probably as well as, or better than, the next man.
I entirely agree with the hon. Gentleman about the dangers of what he called investigatory journalism and what I call insight journalism in the way in which it is at present being developed. The hon. Gentleman went too far in saying that this amounted to the creation of news. Newspapers sometimes create news, but I do not think that this kind of journalism purports, on the whole, to do more than try to dig out things that have actually happened. They do not set up a happening as the newspaper photographer does when he poses two people who would not otherwise have come together and then says, "This is a photograph of Mr. X and Miss Y"—
§ Mr. Walden
The hon. Gentleman has such a valuable point there that I wonder whether he will allow me to interrupt to say that I, like he, but not in as distinguished a way, have been a journalist. I also like journalists very much. I like their company. In general, they are very nice people. When I said that they do not wish only to comment on the news, but want to make it, I did not mean "fabricate" it. I meant that they wanted their own activities to be the main story in their paper at a given time. I can think of a recent example of this which we are prohibited from discussing because the case is sub judice. That is what I meant. I was not in the least suggesting fabrication, least of all in the case the hon. Gentleman suggests.
§ Mr. Maude
I am obliged to the hon. Gentleman for making it clear. We should pause before putting at risk the right of the Press to try to discover the facts, facts which some people have a particularly good reason for trying to hide. I put it no higher than that. There is a risk. The right to inquire to find out the truth has always existed, and always should exist. Serious sanctions are imposed on the misapplication of the facts when they are discovered. A newspaper is, and always must be, rightly at risk in what it decides to publish and how it words the publication.
I want to take just one example, because I should be interested to hear from whoever is to wind up the debate for the promoters what his view is on this. There was a case which attracted a certain amount of notoriety some little time ago and which I believe was referred to the Press Council. A newspaper found out, and insisted upon publishing, the name and identity of a heart transplant donor. This aroused a great deal of concern and it was thought by some people to be an unwarranted invasion of privacy. The defence which the newspaper produced was one of overriding public interest.
I happen to believe, though I admit that it is very arguable, that with the ethical problems which transplants were producing at that time, and with the importance at that time of deciding what constituted death and, in any particular instance, when death occurred, there was an overriding public interest and it was 920 desirable at that time that is should have been done.
§ The Secretary of State for the Home Department (Mr. James Callaghan)
§ Mr. Maude
The Home Secretary is perfectly entitled to his opinion. I say only that I think that it is arguable. I would have thought that it was very doubtful whether the defence of public interest would have availed the newspaper under the Bill, but I may be wrong there. My feeling is that this was something which, at least arguably, was a legitimate activity on the part of a newspaper in the public interest.
So much for the Press, because I do not want to over-stress the importance of the Press in the Bill. I agree that it can be over-stressed. It is obvious that there are certain dangers and that these need to be met. All that I am saying to the House is that this is an attempt to introduce a quite new principle and a quite new right into our law; that, if this is done, it is something for which the Government should take responsibility; that there is still the need for considerable investigation as to what legislation can be made effective and how it can be made effective; and that this is something for which again the Government should make themselves responsible and for which the Government should set in train further measures to produce a range of expert opinion on enforcement.
In the absence of that kind of assurance, I shall find it quite impossible to vote for the Second Reading of the Bill.
§ 2.6 p.m.
§ Mr. Eric S. Heffer (Liverpool, Walton)
Until my hon. Friend the Member for Wolverhampton, North-East (Mrs. Renee Short) spoke, and apart from the speech of my hon. Friend the Member for Birmingham, All Saints (Mr. Walden), I thought that I had wandered into a law school. I felt somewhat out of place in even daring to be present. I felt for a few moments that perhaps I ought not to open my mouth on this very difficult problem, because I am not a lawyer, and am never likely to be. However, I will try to bring to bear on this question a back-bench, layman, working-class, view, if there is such a thing.
921 Some of my colleagues in the House who have a similar background to mine tend to think that these things should be left to the lawyers. I think that they are wrong. It is precisely the ordinary people that are affected by this sort of discussion and its outcome. Although the lawyers are welcome to participate, it is important that the point of view of other people should be expressed.
During the speech of my hon. Friend the Member for All Saints, my hon. Friend the Member for Ashton-under-Lyne (Mr. Sheldon) interrupted to say that he thought that the Bill was too wide in its scope and not sufficiently particular, in the sense that it did not deal especially with the question of bugging, telephone tapping, and of the establishment of dossiers. My hon. Friend the Member for Ashton-under-Lyne said that what he wanted was not the banning of these mechanical instruments, but the limitation of their use.
This is a very important point. Unless we are careful, we can become so involved in a general discussion on a Bill which is general in character that we do not deal with the specific questions that we are concerned about. We are precisely concerned about the use of bugging methods. We are concerned about telephone tapping and the establishment of dossiers, and so on, and it is precisely that with which we have to deal.
Therefore, it seems to me that in introducing a Bill of this kind we need to try to strengthen it not by getting away from 1he general principle but by particularising it as well if that is at all possible. Otherwise, the usefulness of this important Measure—and I am in favour of it—could be lost.
Everyone in the House must be deeply concerned that there has been such a growth of the bugging method, the telephone tapping, and so on. If any hon. Members are not concerned there must be something wrong with them. Whilst the technological revolution is very important, we certainly do not want to build a society such as that described by George Orwell, and the obvious need for all of us is to have privacy.
But there are always problems connected with this question of privacy. Take, for example, dossiers. I can well 922 believe that some hon. Members would be very annoyed if the Press did not have a dossier on them and would want to know why not. I can think of one or two names, but I shall not mention them. So there is another side of the argument. We should remember that public figures are not in precisely the same position as ordinary citizens. A public figure has no right to be a public figure if he is not prepared to be put under a microscope. Our actions are naturally much more liable to be closely examined than the actions of the ordinary citizen. It is quite right that that should be so.
But if we are to have dossiers on public figures, there must, nevertheless, be a limitation on what goes into them. For example, Mr. Alan Watkins, who writes in the New Statesman—he writes well, I know him personally and have enjoyed his company—made an important point in that journal on 14th November. He described how two hon. Members—and I do not know who they were—had taken part in a television show and afterwards had some conversation with the television people. A few drinks were going around, there was a free discussion, and the television producer asked them whether they would like to see their dossiers. They said that they would.
They were no doubt delighted that there were dossiers on them. But when they actually saw their dossiers they were deeply concerned because there was much more in them about their private life, as against their public life, which, in my opinion, had no right to be there. Therefore, it is important that we should draw a distinction between the public and the private lives of all individuals. It is vital that we have legislation to deal with these matters.
§ Mr. Peter M. Jackson
I think that there will be few hon. Members who would disagree with what my hon. Friend has said. I hope that before he leaves that point he will go on to argue in favour of the right of access to the dossiers. I expect that a dossier will be kept on my activities as well as on the activities of my hon. Friend. I do not complain about that. What I complain about is that I have no right of access to it and that it may contain information which is entirely false. This is a right 923 which should be contained in a Bill such as this.
§ Mr. Heffer
I certainly agree with my hon. Friend. I am sure that both he and I have dossiers kept on us perhaps in various places and by different organisations. I should certainly be pleased to have a look at mine. I should be fascinated. But we cannot really argue about the right to look at them without first deciding whether there should be dossiers and what should be kept in them.
I turn to another aspect and one which has not been discussed very much today—the question not of industrial espionage which, also, has not been discussed very much, although it is important—but another aspect of industrial life with which, as a trade unionist, I have always been concerned. That is the sort of spying interference in the right of the worker that can go on in industry, often unbeknown to him, but sometimes blatantly and openly. That, also, is an intrusion into the privacy of the worker in industry.
For example, there was a construction firm—not the one with which the hon. Member for Folkestone and Hythe (Mr. Costain) is concerned—which felt it necessary to have dossiers on its employees. It wanted to know where the worker had been previously employed, what were his trade union activities, and whether he had ever been a shop steward, and all that sort of thing.
When a joiner or a bricklayer or any other sort of working man goes for a job I believe that the only matter which the firm has the right to know about is whether he is a fully qualified craftsman and whether he can do his job. If, after a week, under the working rule agreement, the firm finds out that he cannot do his job, it can dismiss him. But trying to find out matters which could be used to stop workers from obtaining jobs because perhaps they were active trade unionists is wrong. It is an invasion of privacy. It may not be one which is discussed very often, but as a former worker in the building industry I felt at that time—and trade unions object strongly as well—that that sort of investigation ought not to take place. We must ensure that it does not.
If I may say so, the Bill is rather weak on that point. In fact, it does the opposite 924 The National Council for Civil Liberties points out, and I agree with it, that Clause 3(d) would give the employer more rights than he now has. That, more or less, is the point it is making. I quote from its document: Clause 3(d)—Delete the whole. This Clause could encourage industrial espionage and allow employers to spy on their employees almost without restraint.The proper way to control but not prohibit employers from unreasonable privacy invasion is by establishing work rules enforced by the Department of Employment and Productivity.I hold the same view. I urge upon my hon. Friends, if they press the Bill and it goes to Committee, that the whole of Clause 3(d) should be deleted. I believe that there is the need for a code of conduct, as it were, but that it should be developed in industry through the Department of Employment and Productivity and in agreement with the C.B.I., on the one side, and the T.U.C., on the other. That is the way it ought to be dealt with, rather than as proposed in the Bill.
As I read the paragraph, the defendant, that is, the employer in the case I have in mind, could say that hisacts were reasonable and necessary for the protection of the person, property or lawful business or other interests of himself …".He could argue that to spy on his employees, to have dossiers on them, to investigate their past lives, as it were, was in the interests of his firm. We could not possibly tolerate that, and I regard the Bill as wrong in that respect.
§ Mr. Alexander W. Lyon
He can do it at present. The Bill would restrict his right to do it to those methods which were reasonable and necessary. He could argue that bugging was reasonable and necessary, but I do not imagine that any court in the land would, in the circumstances, agree that that was right.
§ Mr. Heffer
In spite of my hon. Friend's great knowledge in this matter, I feel that the National Council for Civil Liberties has made a valid point there, and I take my stand with it. But I shall not pursue the point further now.
Now, the question of the Press. All of us are dedicated to the concept of the freedom of the Press. If we are not, we ought to be. But I sometimes feel that hon. Members occasionally tend 925 to forget that John Wilkes is dead and that the Press barons who are running our newspapers today are not the same sort of people as during his day. This is an important point. I have heard this matter argued in the House in the same terms as Hazlitt argued about the freedom of the Press. My hon. Friend the Member for Ebbw Vale (Mr. Michael Foot)—he is not here today—argued this passionately—and, incidentally, he has just got me passionately interested in Hazlitt, as well.
§ Mr. Heffer
A very good interest, yes.
We must recognise that the arguments carried on in those days were conducted in entirely different conditions. Our Press now is owned by a small number *of powerful rich people. When I read in the editorial column of the Daily Express, quoting the Press Council,It is the function of the Press to see that truth is not suppressed",I begin to wonder where we are going.
In my own experience, a photograph was taken of me in company with some of my constituents, but I was cut off the photograph when it was published. I should have thought that that was a suppression of the truth. I did not complain to the Press Council, though I complained to the editor, and the complaint did a bit of good. My point is that conditions are not the same now, and it is in that context that I now turn to the question of the heart transplant.
I have regarded the incident of the heart transplant as an example of the inability of the Press Council, because of the preponderance of proprietors' influence on it, to deal with a serious invasion of privacy. A request was made that the name and address of the person concerned should not be given. A newspaper deliberately flouted that request. On top of that, the Press Council upheld the right of the newspaper to do so. I can only regard that as a sad reflection on the Press Council.
I shall not get involved in a great attack on the Press, because I believe that our Press, in the main, is the best in the world. It fights for just causes. But we must not blind ourselves—
§ Mr. Maude
The hon. Gentleman will realise that the case to which he refers can be argued on both sides. There was grave apprehension at the time, among many people, that the ethics of heart transplants, and the question when somebody died or did not die, were of such immense importance that it was necessary that everyone should know exactly what was happening and who was involved. I do not say that they were right. I am only saying that it is arguable, and that I feel that the hon. Gentleman should recognise that.
§ Mr. Heffer
I concede at once that it was arguable. Everything is arguable. There is another point of view on everything we discuss in the House or anywhere else. But it seems to me that, precisely because of the ethical arguments which were taking place at that time, because the question has not even now been settled, to publish the name of the person involved was to fly in the face of the best interests of all concerned. That is my view. I felt that it was one of the worst examples of interference with privacy of which I had heard. Many other examples of interference by the Press could be cited.
If the Bill is taken to a Division, I shall support the Second Reading because I agree with the principle behind it. Nevertheless, I would hope that some of its defects could be eliminated in Committee so that it emerged in much better form than it is now.
§ 2.26 p.m.
§ Mr. Eric Lubbock (Orpington)
The hon. Member for Liverpool, Walton (Mr. Heller) said that he wondered whether he had wandered into a law school as he listened to the opening speeches. As I listened to the debate—I have heard most of it—I thought that I was present at a meeting of the Royal Commission on the Press. Instead of concentrating, as I think the House should, on the liberties of the individual, which we are here to defend, we have devoted an inordinate amount of time to the editorials which have appeared in various newspapers attacking the Bill and the whole concept of it. I shall not deal with that aspect of the matter, save to say that I consider that the Press has grossly exaggerated the defects of the Bill and there is nothing in its criticisms which 927 cannot be put right in Committee if the Bill goes that far.
In passing, I take up the hon. Gentleman's other point about the difference between public and private figures. Constituents are entitled to far more information about the private lives of hon. Members than they would be entitled to have about the lives of their neighbours. That is quite legitimate. It is topical to mention this since the Select Committee on Members' Interests has recently reported and made recommendations which would involve the disclosure of a greater amount of information than has hitherto been available to the public, although, in my opinion, not nearly enough.
I entirely agree with the hon. Gentleman when he says that anyone wishing to enter public life must accept that there is a sacrifice of privacy in so doing and that many of the personal details of one's life are matters of legitimate concern to people outside the House.
§ Mr. Edwin Brooks (Bebington)
I take the hon. Gentleman's point in general, but does he agree that there is a danger in assuming that the public have a right to know far more about the private lives of public figures than might strictly be necessary? Would he agree that if the public had known the full details of the private life of Mr. Lloyd George, he might never have become Prime Minister and we might have lost the First World War?
§ Mr. Lubbock
We need not go into this in detail now. The facts of Mr. Lloyd George's private life, to which I understand the hon. Gentleman to be referring, would not have been relevant to his political and parliamentary capacities. I was talking more of such things as the financial affairs of hon. Members, which are a matter of concern to the public at large simply because they may affect the way in which we speak and vote here. That is what I had in mind. I want to speak, mainly, not about such things as the Press or the distinction between private and public figures, but about the individual faced with an increasing assault on his privacy. This is a matter of growing concern, whatever 928 the Press or the hon. Gentleman the Member for Stratford-upon-Avon (Mr. Maude) may think.
The publication by the National Council for Civil Liberties of the pamphlet "Privacy under Attack", which created a great deal of interest and was a very valuable contribution to the discussion; the report of the "Justice" committee; the N.C.C.L.s privacy campaign; the increasing volume of articles in the Press and discussions on radio and television concerned with aspects of privacy; the presentation of a number of Bills in this House, and Motions both here and in another place—all bear testimony to that growing concern. I might also mention the Bill introduced by my hon. Friend the Member for Bodmin (Mr. Bessell) dealing with unauthorised telephone monitoring, the Motion tabled last June by my noble Friend, Lord Wade, calling attention to the need for the protection of the fundamental rights of freedom, and the Bill of Rights presented by my hon. and learned Friend the Member for Montgomery (Mr. Hooson) last July.
My noble Friend said that we had growing evidence of infringement of personal privacy, which he attributed to the development of new technologies for the acquisition of information. He referred, in particular, to the possible abuse of information which is stored in computers—a subject to which I shall return later, because of its fundamental importance.
My hon. and learned Friend made it clear that to him the right to privacy was an essential component of the liberties of the subject. He pointed to the growth of bureaucracy, and cited the staggering fact that no fewer than 10.000 national and local government officers now have the legal right to enter private homes. That we receive so few complaints about the exercise of these powers is very remarkable evidence of the high standards maintained by those officers, but since these powers are continually multiplying, we may expect that the number of cases having to be drawn to our attentiton will increase as time goes on.
Therefore, as we look over the last few years it cannot be denied that public concern about privacy is rapidly coming to a head, and that the need for the House to make decisions is a matter of some urgency. This Bill would have 929 provided us with this opportunity. I had hoped it would have gone further, but I gather that the Home Secretary now has plans to set up a committee to review the whole subject once again, notwithstanding the two-year research undertaken by "Justice".
This is a cause of some disappointment to me, and it might be for the House to consider whether the Bill should not be at least allowed to go to a Standing Committee so that many of the detailed points that have been raised, particularly in relation to the objections of the Press, might be considered by hon. Members and not by some body appointed outside the House which does not have to make the final decision on whether changes in the law are required.
§ Mr. Lubbock
Yes, but the hon. and gallant Member for Down, South (Captain On) will bear in mind that if the new committee takes no longer than did the "Justice" committee—and in a matter of this complexity that could not be wondered at—we shall not receive a Bill until 1971 at the earliest, and as the drafting of legislation will have to be left until the report of that committee has been drawn up, it is my guess that it is more likely to be 1972 before action is taken. If the House considers such a time scale, and accepts the proposition put by the hon. Member for Birmingham, All Saints (Mr. Walden) that this is a matter of increasing public concern, I am not so sure that we can allow the subject to be left for so long.
This country is a signatory to the Universal Declaration on Human Rights, which provides that no one shall be subjected to arbitrary interference with his privacy and that everyone has the right to the protection of the law against such interference. In considering whether Great Britain is fulfilling the spirit of the Declaration on that particular right, the first problem encountered is the very great difficulty of defining the concept of privacy. The "Justice" report has a good deal to say on that subject, and is an invaluable contribution to our discussion.
The "Justice" report concluded that no purpose is to be served by our making yet another attempt to develop an intellectual 930 by rigorous analysis. Its authors consider that, although opinions may differ about the boundaries of privacy, there will be a large measure of agreement about the central area. It is from that point of view that, as a non-lawyer, like the hon. Member for Walton, I would like to approach the subject.
I suggest that the House might test whether there is this general agreement on the central area by asking a few practical questions. What kinds of information are we sensitive about? What persons, in what circumstances, should be entitled to demand our attention? I shall explain what I mean by that in a moment. What protection exists against the abuse of special rights to the possession of information?
Broadly speaking, the answer is that any information which is not already available in published form must be deemed to be private to a greater or lesser degree. An example here is that unless my telephone number is ex-directory, anyone can get my telephone number and address. That is public knowledge.
An example of information not generally available is a person's medical history or his financial status or political background, all of which are sensitive to some degree. But even here the line that has to be drawn cannot be drawn absolutely sharply. A man's medical history is contained in the records of his own general practitioner, but parts of it are quite legitimately available to other people. The Department of Health and Social Security will have a record of his absences from work because of illness, because on those occasions it will have paid him sickness benefit, and a record has to be kept in its files.
A man's employer—and this may be relevant to what the hon. Member for Walton discussed—will need to know something about the man's health. He will be aware of periods of sickness while the man is in his employment, but even before he engages the man he may want to be satisfied that his health will enable him to take up the work involved. That is why many employers ask that a man should first undergo a medical examination.
This is an example of the way in which information which at first sight one 931 would say was highly personal and confidential may sometimes need to be made available to others than those one first has in mind, such as, in this case, one's doctor. Information acquired for one purpose can be quite legitimately used for another purpose, and it is necessary for us to decide exactly where the line should be drawn.
The second question is: who, in what circumstances, should be entitled to demand our attention? I have in mind things like the answers to questions put to individuals in, for example, the census forms. The census forms contain a great deal of personal information, most of which is quite legitimately required by Government Departments for statistical purposes, but in deciding whether those Departments are entitled to that information we should have in mind the use made of the information afterwards.
I confess to a certain amount of anxiety as I read the articles which have been written by Mr. Anthony Shrimsley in the Sun concerning the sale of census information to commercial organisations. Mr. Shrimsley says that no personal information relating to individuals is contained in the sales of information from the census. They are records of small cells of 200 people or so which anyone can purchase and there are organisations which have bought the whole mass of information from the whole of the country. From it they can say, for instance, whether people owning two cars each are likely to be concentrated in a particular area. That is information in which they might be interested if they were doing a direct mailing on behalf of a garage firm which wanted to sell cars in that area.
This is a trend about which we have to be careful. If we agree that census information should be sold in packets concerning 200 people, that might be reduced to 50 people, or it might be even more useful if it comes down to individuals. I do not say that we are in this position at the moment, but I warn the House that it is a tendency which must be carefully watched. The selling of information provided quite legitimately for Government Departments to commercial organisations which might find it useful in their businesses is something 932 to be watched carefully. I hope that before the 1971 census is taken very careful thought will be given by the Government to whether further safeguards are necessary.
Also in considering who should be entitled to demand our attention we have the problem of entry into our private homes of people who come to ask questions and usually to examine things which may be in our homes. That is a big subject to which we need to give close attention, and if this Bill goes into Committee we can examine it in much more detail than we can on the Floor of the House.
My third point is protection against abuse of special rights to require and store information. This is particularly important in the light of the rapid development of computers, a subject of debates in this House and in another place in the last few years. There are people who think that computer data banks pose no problems because they deal with no information which is not recorded somewhere and already available. I must point out that that is not the view held by people in the computer industry. Mr. John Hargreaves of I.B.M., in a lecture to a Liberal summer school, said:But how greatly the situation changes when the means of technology and communication allow the entire dossier of an individual to be held on a small segment of magnetic tape, and how much greater the temptation to use it. The trail of records as he passes from cradle to grave can be accumulated relentlessly. He starts life as a birth certificate and quickly becomes a tax allowance. He generates education records: his personality and IQ can be categorised and his programmed instruction can be geared to his needs. He enters the world and becomes a working, housing, medical, social, service, and perhaps criminal statistic. He accumulates licences for dogs, television, cars and marriage. He leaves behind him, as he moves through life, records of purchases and debts, mortgages and earnings, successes and failures, travel and change, interests, hobbies, clubs, activities, friends and associates. It is not too much to see the possibility of this process starting before birth with a determination of his genes, and to presume that, as he eventually leaves this world, he is merely 'Passed for further consideration and comment'.Mr. Hargreaves went on to say that every single fact relevant to that person's life could within the technology available to us now be recorded on a single computer file. That is why the problem is quite a different one from the maintenance of all these records relating to an 933 individual separately in places where it would cause a great deal of trouble for any person to put it all together, such as one's health record in the doctor's consulting room or the social security office, or one's work record. No ill-disposed person who would like to make use of the connection between these pieces of information would have the time or the energy to obtain all the separate information and put it together. But once it is put on an inch or two of magnetic tape it would be possible without very strict safeguards for a person to gain access to the whole of such information and to use it for unauthorised purposes.
That is why there is Government responsibility to develop safeguards before we get to the stage over personal data described by Mr. Hargreaves. A great deal of personal information is already available to Government Departments. There is the Ministry of Health and Social Security which, quite rightly, has records of people's social security contributions, and they may be of great convenience to members of the public. If persons claim unemployment or sickness benefit, instead of the clerical processing of their application an officer in Orpington, for instance, can get in touch directly with the central computer data terminal and establish that a person is entitled to EX unemployment benefit for that week. The computer having done the calculation, the payment can be made at once. This can be of great convenience to the insured person, but it should not be available to the public by these technolcgical means of obtaining information unless the Government have given very careful thought to safeguards.
I will give one or two examples of detailed areas which illustrate the need for a Bill of this kind. The hon. Member for Wolverhampton, North-East (Mrs. Renée Short) referred to companies which undertake investigations on behalf of H.P. firms or anyone who has curiosity, justified or not, about one's private affairs. One of the firms, which is called Tracing Services Ltd., was convicted of offences in 1969, and so were two of the directors. Mr. Justice Caulfield said that a more appropriate title for the company would be "Tracing Services (Liars) Unlimited". He said:You ran your business in such a way that you virtually recruited a regiment of liars.934 It recruited agents who would find anything that was requested about the private lives of individuals, and would do so by impersonating officers of the Inland Revenue, the police, and so on. I saw a demonstration of how this works only yesterday. If one rings up the motor taxation department of a local authority and gives the number of a vehicle saying, "Please will you give me the name and address of the owner?" the answer will be, "We cannot divulge that information on the telephone. But if you write to us and fill in a form, enclosing 5s., and show a legitimate reason it will be given to you."
If one of these inquiry agents says, "I am Detective Sergeant So-and-so, Metropolitan Police. Give me a quick check on ABC 123E.", the person at the other end says, "This vehicle was first registered in June, 1966. The previous owner was So-and-so. There has been no renewal of the licence since the end of 1969." All that kind of information can be obtained from a local authority office by impersonating a police officer, and this does happen.
§ Mr. Lubbock
Of course it is an offence. That is why these people were convicted and fined £11,000 for impersonating officers of the police. The threat of conviction did not stop them doing it, and probably £11,000 was chicken-feed compared with the fees they received. A local authority which has these records ought not to answer any inquiry on the telephone. The rule should be that the person concerned should be told to ring back—if he says he is a police officer asking for information of this kind—and a check should be made. That is what I understand the banks do.
Another firm offers to obtain information on bank balances for six guineas. I think this was firm to which the hon. Lady the Member for Wolverhampton, North-East, was referring. It is called C.B.I. It will offer to obtain one's vehicle record number for a small fee. Practically anything else one can mention about the personal life of an individual can be obtained by these companies, often through illegal methods such as impersonation of police officers and officers of the Inland Revenue, and if the Home 935 Secretary would like to see a detailed account of the particular company I have mentioned then I shall be only too delighted to show it him.
§ Mr. Callaghan
I was wondering what this had to do with the Bill. These are offences. They are illegal. I cannot see how the Bill will do more to prevent those illegalities than the law at present.
§ Mr. Lubbock
It may be that individuals who commit these offences are not brought to book. If information, however it has been obtained, is supplied by a company to a hire-purchase firm, there has been infringement of privacy and illegality. Under this Bill it would not have to be proved that an offence had been committed. It seems to me that, at the moment, to bring any of these individuals or companies to book is very difficult, for it is very difficult to prove illegality. The fact that information has been obtained is known to the victim and also to his client, but not how it was obtained, and so, of course, there is no possibility of prosecuting.
There is one other point I want to mention on the subject of investigation. It is not only tracing services, firms of that kind, which undertake this work, but also the Department of Health and Social Security and the D.E.P. themselves. This needs to be watched very carefully indeed. There was an article which appeared in the Guardian on 26th June, 1969, by Mr. Hugh Macpherson. The question was asked, "Do we need public eyes?" In a conversation with Mr. Macpherson, the D.H.S.S. admitted that it had 206 special investigators. The Department of Employment and Productivity had somewhat fewer, but between the two of them they had over 300 people investigating people's private affairs.
One may say that this is fairly legitimate since one wants to prevent the misuse of public money and to stop people getting social security benefits to which they are not entitled; but one of the most objectionable features of these investigators' work—at least, I think so—is the way they snoop, for instance, into a widow's private life to see whether, as the phrase goes, she is cohabiting with a man, and very unpleasant means are used to establish this information.
936 The D.H.S.S. apparently said to Mr. Macpherson, when he was writing this article, that the fullest information about the number of these officers and the way in which they work would be given in the report which the D.H.S.S. was due to publish shortly. Having looked through it I cannot find any of this information, and I think that if one is to have over 300 snoopers employed by Government Departments it is very important that the public know what it is they are up to and whether any more of them are being recruited.
There is a great deal more to be said on this subject, but knowing that time is getting short I just repeat that I hope that the Home Secretary will allow this Bill to go to Committee so that many of the detailed points, for there has not been time this afternoon, can be discussed, and so that he can obtain the very best advice, even though the Bill were not to go to Third Reading, on which to base the Government Bill to be introduced in the next Session.
§ Mr. Speaker
Order. I would remind the House that I have appealed to hon. Members to make brief speeches. I have done so several times this afternoon. There are some hon. Members who have sat here all day who will not be able to speak today because some other hon. Members have not responded to my appeal.
§ 2.55 p.m.
§ The Secretary of State for the Home Department (Mr. James Callaghan)
I will try to be brief, but the House has asked and expects the Government to state their attitude to the Bill and to this problem generally. I shall try to do so very shortly.
I must begin by saying that I envy—as I have on earlier occasisons—my hon. Friend the Member for Birmingham, All Saints (Mr. Walden) the felicity with which he delivered another outstanding speech. He gave a very balanced account of the problem and one which was informed with passion, too.
Unlike other hon. Members who, I thought, rather attacked him because of his attitude towards the Press, I did not feel that he put his comments in any 937 objectionable way at all. It seems to me that the Press themselves have recognised that there is a problem here. My hon. Friend stated it, and he stated it in a logical, sensible way, and I would expect that in the editorial sanctums they will reflect—indeed, they should reflect—on what he had to say about some of their thinking at present, because they, like everyone else, should be subject to criticism. I do not think that my hon. Friend said anything which should call down upon him criticism in this connection, and I doubt if it will.
My hon. Friend put forward several questions he wanted us to answer this afternoon. Is additional legal protection necessary? Is the Bill the right way to do it? He outlined various problems which, for the sake of saving the time of the House, I shall not now go over again.
The various problems, I think, resolve themselves into five. As I have heard the debate there is the question of the use by private detectives of modern, newfangled devices. There is the use by newspapers, and by the broadcasting authorities, maybe—I say "maybe", because I have heard of only one example—of certain recording devices. There is the use of the pre-employment checks to which my hon. Friend the Member for Liverpool, Walton (Mr. Heffer) referred. There is the use of credit agencies, and there is the use of data banks and computers. Those were the main points which ray hon. Friend outlined.
The hon. Member for Orpington (Mr. Lubbock) introduced a new thread of thought, and that was the use of computers by the Government. This has not been debated, has not formed the subject, except by him, of our discussion today. I shall not spend much time on it except to say that I think the safeguards on the use by Government of these instruments are very considerable. Whereas the field my hon. Friend was speaking about, which has, broadly, been debated, and which is of the ethics of the people concerned, in the case of the Government there is, of course, first and foremost the accountability of Ministers for what they do.
If the hon. Member for Orpington has complaints about any particular matters such as those he talked about today he 938 could raise them here. Ministers are answerable for them. No one, in those other cases, is answerable. There is also legislation in a number of cases. I speak as a member, many years ago, of the Inland Revenue Department. The legislation which exists, about information being passed from one Department to another, is absolutely conclusive.
In the case of the Department of Health and Social Security, I myself have had this experience—I dare say other hon. Members have had similar experience, too. On behalf of a wife whose husband deserted her after agreeing to pay her a sum of money every week, and who then decided not to go on doing so, I asked the Department to give me the address of the husband. It has never done it. I understand that: it is probably right. It has taken the line that if I or the wife will write a letter they will forward it to the husband if they have his address.
Those are the ethical, sensible and practical as well as, in some circumstances, statutory limitations on the use of various pieces of information accumulated by Government which do not exist in the field to which my hon. Friend referred. I suggest that the hon. Member is drawing another trail across this if we get into that field. Therefore, I want to devote my speech to these other matters.
Mr. Speaker—[Interruption.] I know that it has always been useful to say this. The hon. Member is here; he made my speech as well as his own. I wish that he would make speeches more often in the House, but I do not think that he should try to endear himself to the First Secretary by increasing his productivity by making my speech in the middle of his own. Two in one is not the way. But I will cut all that out.
As I rarely sit through a debate on a Friday, I enjoyed this one. We should give ourselves the pleasure of hearing our colleagues more often, except when we intend to make a speech ourselves. Everyone else has enjoyed it and it has been a worth-while debate. Having read and studied this matter, having read the report of "Justice"—I thank its members for the manner of its production and the study which went into it—and the work of the Society of Labour Lawyers and some of the other publications issued on 939 this matter, having talked it over in my Department, I have come to the conclusion that there is a need for a law of privacy.
This is demonstrable. Certainly, my hon. Friend proved it to me. This is one of the abilities, properly and intelligently used, of back benchers, that they can make Governments think about these problems and, by the intelligent use of parliamentary time, get something done about them.
My hon. Friend has convinced me that we should take some action on this matter. When he asks the second question, however, whether the Bill is the right way to do it, I differ from him. He has not proved it to my satisfaction or, I think, to that of other hon. Members. We will never get unanimity on a matter like this, but we should have more detailed and technical investigation. There is a real difference of approach. One is the lawyers' approach, as I understand the report of "Justice".
Although there was some complaint that my hon. Friend the Member for York (Mr. Alexander W. Lyon) made a long speech, it should not be forgotten that he was one of the forerunners in the House in the work in this matter. I pay tribute to him for his work over a period of years, but he thinks—I understand this—that the judges have always been excellent on this question of privacy and that, therefore, if we just lay down the bare outline, we can leave it to them to fill in the content and put flesh on the skeleton.
That is one way of doing it. I accept that, in this field as opposed to others, judges may have a good record. Nevertheless, as he himself said, they have rather opted out of making law in this field. I have, as a parliamentarian, a preference for letting Parliament try to lay down in some detail not only what is the central area of agreement, but also what are the boundaries. Perhaps we cannot do it.
My hon. Friends the Members for York and All Saints believe that, having examined the problem, we shall come up against insuperable obstacles as parliamentarians if we tried to do it. They may be right. I am willing to be convinced 940 Then we have to consider what kind of law we would give to the judges to fill in the content. But we should start by asking, how can we, as legislators, not leaving it just to the lawyers—with all respect to them—try to fill in the detail.
§ Mr. Callaghan
Like my hon. Friend the Member for Liverpool, Walton (Mr. Heffer), I do not believe that this subject should be left to the lawyers—not even to my hon. and learned Friend the former Financial Secretary, who, I see, wants to spend long hours in Committee on this matter. It should not be left to the lawyers, but should, in my view, be embarked upon on a rather wider basis. That is my general approach.
There have been many studies of this matter. The courts have dealt satisfactorily with difficult cases arising in these fields of law, but the law on such matters as defamation and trespass is very long-established. Some of the terms in the Bill, like "substantial" and "unreasonable", are very imprecise and it might take a number of years for the courts to reach final and authoritative interpretations. In these days the courts are used to having more precise guidance as to the wishes of Parliament. This is the right thing to do and the way in which we should tackle the matter.
My hon. and learned Friend the Member for Derby, North (Mr. MacDermot) said that we should let the Bill go into Committee, but the question is whether this is the right Bill to go into Committee. I do not think that it is. If it is agreed that legislation is needed to give more effective protection to privacy, as I think, will this best be secured by giving individuals the right of redress in the civil courts—some people think that it will be, but I wonder—or will the object of my hon. Friend and other supporters of the Bill be more effectively secured by evoking the sanctions of the criminal law, or it could be a mixture of the two, both the civil and the criminal law?
These are questions that ought to be answered before we embark on legislation. What is more, they are questions of principle which should be decided at Second Reading and not allowed to 941 go to Committee in order to decide major questions of this sort.
The promoters have taken the view, which is a perfectly arguable view, that there should be a civil protection. I am not persuaded of that. But, having taken their stand on the fact that it should be a civil remedy and no more, I am entitled to say to the House that, on balance, the question of alternative remedies, as well as the boundaries of the action to which objection is taken, should be more clearly defined. That cannot be done if at this stage we allow the Bill to go straight into Committee.
When we consider the many diverse areas in which the problem of privacy arises and the extent to which it gives scope for controversy, as has been seen in the debate today, it is by no means self-evident that the right way to solve the problem is through the medium of the Bill as drawn at present, namely, by establishing a right of privacy and providing a civil remedy for its substantial infringement.
I will mention one case which seemed to me to show the inadequacy of the present system and provide a case for a further look at this matter. My attention was drawn to a case of unauthorised telephone tapping and to the fact that the only way in which a prosecution could be taken was under the Theft Act for the theft of electricity. If we can only get at unauthorised telephone tapping by charging whoever did it with the theft of electricity, then there is a case which ought to be looked at much more closely than has happened up to the present.
I wish to make the following proposal to the House and to the promoters of the Bill, who have, in my view, achieved a substantial and signal victory in this matter. The Government, with the agreement of the Lord Chancellor, the Secretary of State for Scotland, and myself, intend to set up a committee on this matter. The terms of reference will be to consider whether legislation is needed to give further protection to the individual citizen and to commercial and industrial interests against intrusions into privacy by private persons or organisations, or by companies, and to make recommendations.
This is not a stalling device. I have already indicated my view that I regard this as a serious matter. Therefore, I 942 asked Mr. Kenneth Younger if he would be the chairman of such a committee. He is well known to most hon. Members of this House. He is himself a former Member of the House, he has a good record in these matters, and he has indicated that he will be willing to take the chair.
I propose that the committee should comprise lawyers, though not only lawyers, but also Members of this House, representatives of the Press and of broadcasting, of business and of the trade unions. There is sometimes a distinction improperly drawn between Members of Parliament and members of the public. We are members of the public and this is our first and essential requisite for being here. Nevertheless, there is something to be said for adding one or two people who are not Members of Parliament, who are also members of the public, to a committee of this sort.
§ Sir J. Foster
Everyone agrees that there should be a law of privacy. Will the right hon. Gentleman consider altering the word "whether" to "what" legislation? The right hon. Gentleman thinks that there should be legislation, as does everyone else.
§ Mr. Callaghan
I do not think that it will make any difference. It may be that some members of the committee will think that there should not be legislation. I do not want to rule out any opportunity to put forward that case. I have expressed my own view and, in embarking on its task, the committee should know that there has been no dissenting view expressed about this matter in principle today. That being so, I do not think that it will add very much to the agreed terms of reference. As they stand, they will give anyone who wishes to take the opposite view an opportunity to put forward that view. For that reason, I prefer to stick to the terms of reference as they are.
§ Mr. Walden
If the committee is set up on this basis and it decides to move towards the putative drafting of legislation which the House might consider, would my right hon. Friend be prepared to provide the assistance of parliamentary draftsmanship?
§ Mr. Callaghan
Strictly speaking, the Parliamentary Draftsmen are not under my control, and I see no one present on 943 the Front Bench under whose control they are. But, sticking my neck out, if my hon. Friend will defend me later, I have always valued Bills produced from the Law Commission, because it has produced actual drafts. If my hon. Friend will not hold me tightly to it, I will use all my influence. If the committee needs the assistance of a draftsman, I will do all that I can to see that it gets one, with a view to providing a draft which may save a lot of time later.
I am satisfied that certain actions by some business organisations, reputable and disreputable, certain actions by the Press and certain actions by individuals have constituted serious infringements to personal privacy. It seems likely that legislation should be introduced, but it is far from clear that the range of discretion provided by my hon. Friend's Bill should be given to the courts, certainly at this stage. In any legislation which is produced, much more consideration should be given to defining more clearly the types of activity which are genuinely objectionable, and to framing a law which will not open the door to unwarranted litigation, as some claim that this Bill would do.
It is a formidable task that we are giving to the committee. I would like it to act with speed, to get on with the task, and report to the Lord Chancellor, the Secretary of State for Scotland and to me as soon as may be. Then, I hope, we can proceed with further consideration arising out of its report.
§ Mr. MacDermot
May I raise one other point and put a specific question to my right hon. Friend? The "Justice" report advocates a simple remedy, and it argues the need for further criminal remedies. It also argues the need for separate legislation about data banks and computers. If the committee takes the view that several different pieces of legislation are required, will my right hon. Friend also bear in mind the possibility of inviting it to proceed by stages and produce an interim report dealing with the subject that we are discussing today?
§ Mr. Callaghan
I will discuss that with Mr. Younger, the chairman of the committee. But, at this stage, I would not want to give a final answer to my 944 hon. and learned Friend. If the committee produces certain agreed principles in relation to data information services, and so on, we can consider them separately if it wants to produce them separately, but I do not want to fetter the committee's consideration before it has started.
In view of what I have said, I hope that my hon. Friend the Member for All Saints will consider withdrawing his Bill. I think that my hon. Friend can feel that he has the House on his side in principle in this matter. The only difference between us is what the next steps should be. I think that my hon. Friend will run up against very formidable difficulties if he tries to ram the Bill through in its present form. I believe that we will have a better opportunity of getting more formulated legislation if he will allow us to proceed in this way.
§ 3.15 p.m.
§ Mr. Antony Buck (Colchester)
I have been asked by my right hon. and learned Friend the Member for St. Marylebone (Mr. Hogg) to apologise for his not being able to be here this afternoon. He was hoping—indeed, I was hoping, too, until a few minutes ago—that he would be present to make a contribution to the debate, but important commitments elsewhere have prevented him coming. He asks me to express his real regrets.
I should like to congratulate the hon. Member for Birmingham, All Saints (Mr. Walden) on his luck in drawing a place in the Ballot at all and on his good sense in bringing forward a Bill on this important and difficult topic. It has long been recognised that the increasing complexities and what can be described as the advancing density of our social organisation make privacy at once more difficult and more necessary to have. This is further illustrated by what we know about electronic devices and by what we have heard today about technological developments which are increasingly infringing on privacy.
One message which has come through loud and clear when studying the large numbers of papers now available on the whole matter is the increasing difficulty and importance of maintaining privacy in modern society.
945 Another message which comes through from all the information available is that it is very difficult indeed to define precisely the area where remedies are called for, because important and competing interests are at stake, and the methods to be employed, as has been indicated, present extraordinary difficulties.
I should like to add my tribute to those that have been paid to the work of the "Justice" committee which has reported. This is an admirable report. It is certainly convincing about the need for legislation, but I share the Home Secretary's view that, whilst the case for legislation is made out by the "Justice" report and by what has been said today in the House, the case for the Bill as drafted, originally contained in Appendix J of the "Justice" report and now before us, has not been made out.
There has been criticism of the Bill by the Press Council—for example, by Lord Pearce. It would not be right for the criticisms which have been made just to be swept under the carpet. I will not go into those criticisms now, but some of them have fairly considerable validity. The hon. Member for York (Mr. Alexander W. Lyon) admitted that the Justice committee had not taken evidence from the Press and that only one person with Press connections was a member of that committee. We heard from my hon. Friend the Member for Ludlow (Mr. More) that he was a member, but was unable to attend with any regularity.
Before we legislate on this matter, surely we should give the Press the fullest opportunity to put forward its point of view. As I see it, this will be the case if the course now proposed by the Home Secretary is adopted: it has not been the case up to now.
The work of the committee now proposed to be set up will be much aided by all the research which has been done: the work done by the Law Commission, particularly at its seminar at All Soul's, Oxford; the work done by the International Committee of Jurists at its Stockholm Conference; the work done by the National Council for Civil Liberties; and of course the work done by and on behalf of Justice.
946 All this material will enable the committee to report with perhaps greater speed than at first blush might appear to be the case. If the Home Secretary were able to give any indication at all of the sort of time span that he has in mind, having perhaps discussed this matter with the proposed chairman, the House would be interested to hear it. Because of the work which has been done, it might be possible for the committee to report fairly speedily. It has a large amount of material on which to draw. It will have to take evidence from the Press and other organisations, but it should be able to work with some speed because of all this preliminary work. I do not know whether the right hon. Gentleman is able to give an indication of the time-scale that he has in mind.
§ Mr. Buck
That is a pity. The work should go ahead speedily, but I suppose we cannot expect too much, because we are giving the committee an incredibly difficult task indeed. We are giving it the task of reconciling legitimate Press freedom with the legitimate rights of privacy of the individual, and getting a balance between the two. That is a difficult task, but it is vitally important that we should get it right.
If the Bill as drafted were to be proceeded with hastily, it might bring Parliament into confrontation with the Press in an undesirable way. The Press should have ample opportunity to state its views to the new committee, something which it did not have an opportunity to do to the "Justice" committee. The Press did not have an opportunity of presenting its case, and before draft legislation is considered its views must be sought.
It seems right that there should be a high-powered committee, such as is proposed, backed by the full power of the Government, and that it should have the help of Government draftsmen. It is my hope that the course recommended by the Home Secretary will be adopted by the sponsors of the Bill and by the House today.
§ 3.23 p.m.
§ Mr. John Lee (Reading)
I am sure that the House is grateful to my right hon. Friend the Home Secretary for his 947 sympathetic approach towards the Bill. This has become a matter of great importance and concern to many people, and I think that, on the whole, I find myself in agreement with the course proposed by my right hon. Friend.
I think that my right hon. Friend treated the contents of the Bill somewhat kindly, because I consider that the Measure contains serious drafting errors and weaknesses. The more closely one looks at the Bill, the more difficult it becomes to support it in anything like its present form. It is a formidable task to try to draft a piece of legislation such as this, and one does not blame the hon. Members who sponsored the Measure for that, but they have in any event, served a very useful purpose. They have drawn attention, in the best possible way, to the crying need for some legislation on these lines, and even if their Bill goes into limbo it is worth examining it in some detail to try to avoid, on the next occasion, the kind of drafting weaknesses that one finds here.
With the possible exception of my hon. Friend the Member for Accrington (Mr. Arthur Davidson), everybody in the House accepts the principle behind the Bill. If legislation is to be really effective and not to produce results that are not intended, the Measure will have to be drawn with rather more precision and skill than has been the case here.
The first thing which strikes me about the drafting of the Bill is that no attempt is made to define the very right of privacy which it sets out to protect. This may be a very difficult thing to do. We cannot use the analogy of an elephant and say that we do not need to define it because we can see one entering the room. This is too abstract a conception; and that does not mean that the task should not have been attempted. If it has been too formidable a task to undertake a positive definition, the Clause should have borne some reference to what constituted abuse of the right of privacy.
I have three possible abuses in mind, and they have threaded their way all through the debate. The first is intrusion into the home. The second is unauthorised intrusion by a third party into a person's work relationships or by 948 somebody who is connected with his work but who uses improper or irregular methods to obtain information. That deals, to some extent, with the point mentioned by my hon. Friend the Member for Liverpool, Walton (Mr. Heffer) about an employer's undue curiosity in the private habits, interests or activities of an employee or potential employee. The third is intrusion into a person's personal relationships, whether sexual or social, or personal habits, not merely in the home, but at large. Those are the three elements which should have been stipulated. They are not stipulated in Clause 2 which is a great weakness of it.
I entirely agree with my hon. Friend the Member for Walton about Clause 3(d), and I do not share the sanguine view of my hon. Friend the Member for York (Mr. Alexander W. Lyon). This provision seems to suggest that one can use the kind of behaviour which everyone in the House has condemned as a defensive weapon and can employ people to indulge in just the sort of conduct which the Bill tries to outlaw, save of course for the special defences. This is a considerable weakness. My hon. Friend the Member for Walton is right, and this subsection should be deleted.
On the other hand, strangely enough, the Bill is weak on the question of damages and liability. There is a case for absolute liability when the question of pecuniary loss is involved as a result of intrusion. My mind goes back to the Industrial Information Bill, introduced by the right hon. Member for Birmingham, Handsworth (Sir E. Boyle), which dealt more specifically with the consequences of financial and commercial intrusion in private life. These are two entirely different threads, but they are connected. One is the concept that a person's home and personal behaviour is inviolate and the other the privacy of a person's commercial or financial activities, saving always abuses of the criminal law, and the financial and other consequences which follow from intrusion upon them.
One of the Bill's weaknesses is that it does not recognise the distinction between those two points, but tries to incorporate them in one piece of legislation. I should have liked to see legislation which incorporated most of the Bill's provisions, subject to the drafting Amendments which I have in mind, and the 949 provisions in the abortive Bill which the right hon. Member for Handsworth introduced just over a year ago. I do not think the two things can be separated.
The Bill seems casually to spill over into the field of activity which the right hon. Gentleman dealt with more directly. If legislation of this kind were adopted, whatever other defences were permitted and whatever protections should be afforded to newspapers or otherwise, if, as a result of intrusion of this kind, pecuniary loss results it should be recoverable, irrespective of the intention of the defendant.
The courts have widened the scope of the law of negligence very considerably and lawyer Members will recall the celebrated case of Hedley, Byrne and Heller. What I am suggesting is analogous in a sense to the wide extension of responsibility for loss which has been occasioned by negligence. This is why I would like to have seen the provision amended.
There are other aspects to the question of damages. If Clause 4 is trying to repeat the provisions of the Libel Act, 1952, it should say so. It should state specifically that the defences that were included in that Act vis-á-vis defamation are included in the Bill if they are included. It would then be easier for the courts to interpret them.
On the other side of the fence, so to speak, in favour of some of the provisions of the Bill, those who are apprehensive that the damages awarded in some cases might be very great may ask themselves whether there is not a case for excluding these matters from juries. I am a great believer in juries for criminal cases but I am just as firm in my belief that they are wholly inappropriate in civil cases—indeed, are obsolescent in them—and that it would be better if they were brought to an end in civil actions altogether.
I would like to have referred at greater length to the Limitation Act in connection with Clause 5, which specifies too long a period. I think a case should be actionable within a shorter period of time than specified in the Clause. It is often said that promptitude is an important matter in bringing a successful libel action. The same is true here. It may be that a 12 months' period would be adequate enough for anyone to mount an action.
950 I want to turn to certain aspects of Clause 9. The idea of the family written into subsection (2) is much too loose and imprecise. It takes no account of whether people are living together or whether they are adults or children. It is even suggested earlier in the Bill that the family can be joined as a plaintiff, for, it refers to… distress, annoyance or embarrassment suffered by the plaintiff or his family …Our concept of the family in the Western world is much more limited than that in many other parts of the world.
The definition goes too far in stipulating as a family a lot of persons, whether living or dead, whether legitimate or illegitimate and whether, indeed—the Bill is silent on this matter—they are living apart or are estranged, and so forth. If members of an aggrieved person's family themselves feel that they are themselves aggrieved, it would be more appropriate for them to take action and not for someone to take action on their behalf. But that, as far as I can see, is what the Bill implies.
The final point I have time for, due to the very long speech of my hon. Friend the Member for York who, if I may say so, completely dislocated the debate by his prolixity and interventions, is what is almost a throw-away line.
Clause 11(1) says:This Act shall hind the Crown.That is admirable, but how does it tie up with the question of Crown privilege and secrecy? A whole body of law has grown up over the question of when the Crown can claim privilege. It was somewhat eroded by the celebrated case of Merricks v. Nott-Bower in 1964, in which it was held that privilege could not be automatically claimed for certain State documents merely because they happened to belong to a category of documents which would normally be privileged.
As a throw-away line to include in a Bill that it is to bind the Crown without qualification and without any example of the difficulties which might arise is an example of drafting slovenliness. I do not say that unkindly, and I hope I am not being ungracious. The fact remains that the drafting of legislation—my hon. Friend the Member for York, as a fellow member of the legal profession, should know this—is one of the most 951 difficult of all lawyers' exercises. The Government discovered this with their ill-fated Parliament (No. 2) Bill last year. Unless legislation is carefully drafted, all kinds of ambiguities come to life when it is subjected to close examination.
Having made all those criticisms of the Bill, I want to state finally that I profoundly agree with the principles behind it. This is a serious and disturbing problem. The nature of electronic devices and other means of mechanical intrusion into a person's private life or business is becoming more and more complicated and effective and more and more difficult to detect every year. Therefore, the need for legislation is paramount.
I take my right hon. Friend the Home Secretary at his word when he says that the setting up of a commission is not a stalling device, but it is well known that the best way of losing an inconvenient problem is to put it into the hands of a Royal Commission. I hope that the Opposition take the same view of this as the Government, because if by any chance there should be a change of Government—
§ Mr. Lee
I agree, but it would not be a bad thing if for once we had a bipartisan Measure. In general, I am not a believer in bipartisanship in anything, but this is one of those rare exceptions.
With those strictures, I would find it difficult to vote for the Bill in its present form, although I congratulate my hon. Friend the Member for All Saints on having introduced it.
§ 3.38 p.m.
§ Sir Edward Boyle (Birmingham, Handsworth)
I agree with the Home Secretary's comments about the interest in this debate and the quality of the speech made by the hon. Member for Birmingham, All Saints (Mr. Walden).
I hope that the hon. Member for Reading (Mr. John Lee) will forgive me if I pay one sincere compliment to the speech of the hon. Member for York (Mr. Alexander W. Lyon). I agree with the comment he made at the beginning of his speech, that the freedom to keep some part of one's private life to oneself is an important civil liberty. That is a principle to which I personally attach great importance.
952 Drawing a distinction between what is private life and what is public is sometimes easier in theory than in practice. I will give one personal example. The House may recall the matter. Some years ago I was involved in a dispute over a remark made, purely incidentally, by the Chief Medical Officer of my then Department.
I said in the House, and I still believe that I was right, that I took the view—the House very largely supported me—that a Minister of Education should not have to answer test questions on his beliefs about religion and morals that did not apply to other members of the Government. I have no doubt that some of my correspondents, equally sincerely, took the opposite view. I gave that as one example to show that drawing a sharp distinction between private and public life is not so easy to achieve when the matter is examined in detail.
I am strongly in agreement with the hon. Member for All Saints that there is need for a change in the law. I believe that we need a new law to keep up with the rapid change in our environment. The authors of the "Justice" report, "Privacy and the Law", make a very strong case. We live at a time not just of development in technology but of development of new technologies. Things like laser beams had not been thought of 10 years ago. The "Justice" report is also completely right, as the hon. Member for All Saints stressed, about the significance of the electronic computer in storing information.
Its third point—to which the hon. Member did not refer—was the greater facility for the publication of private material. "Justice" said:The audiences of press and broadcasting are today numbered in millions, to all of whom some distressing piece of private information is purveyed in a flash.That is why we need a change in the law to keep up with our rapidly changing material environment.
My third point is that I agree with the hon. Member for Reading that I hope the committee, when it takes evidence and considers this matter, will not completely lose sight of some of the points I made last year when moving the second reading of the Industrial Information Bill. I believe that the results of intrusion must be considered as a whole and 953 I am glad that the hon. Member raised that point, because I believe there is a real imbalance in our law when the theft of the boardroom table is treated differently from the theft of the boardroom secrets. I think that that aspect cannot altogether be ignored.
I turn to my fourth point. I was very glad to hear the Home Secretary's remarks about the comments which the the hon. Member for All Saints made about the Press. I could see nothing either offensive or in any way objectionable in the hon. Member's comments. All hon. Members have some close personal relationships with the Press. I think that the hon. Member was quite right when he said that there will never be a Privacy Bill which the Press will willingly accept.
Frankly, I see nothing wrong with a state of affairs in which we fight the corner of the legitimate public interests and private interests as we see them in this House and the Press fights its corner as well. It would be a bad day for Britain if Parliament and the Press agreed too much. It would be a bad day if we had too much consensus between Parliament and outside interests on everything. I did not think that the hon. Member had in any way implied that we do not value contacts with the Press or the comments which it makes on this subject.
Finally, having been in this House for nearly 20 years, I thought that the Home Secretary went very much further today than Ministers normally go in blessing the general principle of a Private Member's Bill. I just say to him—and I hope that he will not take it amiss—that I do not remember very much of my Latin, but I do recall this one thing. If one asks a question in Latin, expecting the answer "yes", one prefaces the sentence with "nonne" and if one expects the answer "no" one prefaces the question with the word "num".
I thought that the right hon. Gentleman made it very plain, in setting up this committee under Mr. Kenneth Younger, that he was asking a question prefaced with the word "nonne" rather than the word "num". I think that that is a fair way of putting it.
Again, I thought that the right hon. Gentleman made a very important answer to a good question by the hon. Member for All Saints—and I take it that it was 954 not prearranged—about Parliamentary Draftsmen. The fact that the right hon. Gentleman was willing to offer to use his influence at the proper time in parliamentary drafting showed the Government's desire to be involved in this matter and that it was not something they were merely pushing away from them. I think that the hon. Member, and my right hon. Friend the Member for Northwich (Sir J. Foster) and all those who supported the Bill today can feel that real progress has been made.
If it is decided to press the Bill to a Division, my name is on the Bill, I agree with the principle behind it, and I would feel bound to support it in the Lobby. But I do ask the promoters to consider whether it would be wise or not. I think that a number of hon. Members may have left the House after the Home Secretary's speech feeling that the issue was decided for the time being, the Government having made their view clear. I always think that it is a little unsatisfactory when an important subject is taken to a Division which involves only a small number of hon. Members. For that reason alone, I rather hope that we can accept what the Home Secretary has said today, recognising that the Government have given us real hope of progress towards legislation on this subject in the future.
§ 3.45 p.m.
§ Mr. Niall MacDermot (Derby, North)
I have been asked by my hon. Friend the Member for Birmingham, All Saints (Mr. Walden) to seek to reply to some of the points which have been raised. In that circumstance, I may not sound altogether impartial when I add my tribute to those which other hon. Members have already offered on his opening speech. Those of us who were privileged to hear it will, I think, treasure it as one of the great parliamentary speeches which we have heard.
I began the day with a sense of anger and frustration, not a very good mood in which to reply to a debate. It was provoked by the announcement on the 8 o'clock B.B.C. news this morning that my hon. Friend would be persuaded to withdraw his Bill in response to the Government's offer to set up a committee on this subject, but I know my right hon. Friend the Home Secretary too well not 955 to realise that I cannot long remain angry with him. He is one of the most persuasive speakers in the House.
Perhaps what the House most wants to know now is the view which my hon. Friend the Member for All Saints takes and his advice to the House about the proposals which have been made by the Home Secretary. He has asked me to say that, largely, I believe, for the reasons indicated a minute ago by the right hon. Gentleman the Member for Birmingham, Handsworth (Sir E. Boyle), he hopes that the House will agree to the proposal made by the Home Secretary and that we do not seek to divide the House in a way which, whatever the outcome of the Division, would be likely to lead to misunderstanding outside.
Speaking personally, I regret that the Bill is not to go to Committee. I have great faith in the ability of the House in its Committees to improve legislation, particularly when we are dealing with a matter such as this, which is of great public interest and on which we do not divide on party lines. However, I see that there are arguments the other way, perhaps the most impressive being that, since the greatest difficulty of all is how to strike the right balance between the right of freedom and privacy for the individual, on the one hand, and the right of freedom of the Press, on the other. It would be undesirable for us to deal with this matter in a way which could give the Press cause to feel that its case had not been fully and dispassionately heard.
I am convinced that the committee of Justice was fully appraised of the difficulties and needs of the Press in this matter, and that it did strike a right and fair balance. However, I can understand that the Press itself is not satisfied that it has been fully heard.
I thank my right hon. Friend the Home Secretary, first, for having attended throughout the debate, a rather rare thing for a Home Secretary to do on a Friday. Secondly, I thank him for going as far as he has in committing his own Department and, I think, through that, the Government, to the principle of having legislation to safeguard the right of privacy.
We can congratulate my right hon. Friend, thirdly, on setting up this committee 956 and on his choice of chairman. The committee could not be in better hands. We can also thank him for agreeing to use his best endeavours to see that the committee has drafting powers and drafting assistance. That is quite vital if the matter is not again to be subject to intolerable delay.
I ask my right hon. Friend to look further at and more deeply into the point I raised in my final intervention in his speech. This is a complicated matter, and has many facets, and I am fully persuaded that one Bill will not answer all that is needed in this connection. The problem of the data banks and computers is quite separate from that with which we have been dealing. It is exceedingly difficult, and will need different legislation.
Sanctions in the criminal law are another very difficult subject. I am sure that the "Justice" committee was right in saying that that matter needs to be looked at, but it is something different from the subject of this Bill, which I believe should be the first priority. The committee must be given a free hand, but it should be intimated that if its members are in agreement with that view, they are entitled to go step by step and bring forward proposals in this sphere before going into other and, perhaps, more difficult, matters.
The outstanding feature of the debate has been that not one hon. Member has suggested that there is no need for legislation. Everyone is agreed on the need. The question then becomes one of scope and of method. The other major problem relates to what safeguards or exemptions there should be for the Press.
Perhaps it would be better if I now made general comments on particular points. The right hon. and learned Gentleman the Member for Chertsey (Sir L. Heald) asked whether the right approach was to create by Statute a new tort—infringement of the right of privacy. I have a lot of sympathy with his view because I myself started with a prejudice against the idea of trying to create a statutory right of way, which is a novelty in our law. But, having read the "Justice" report, I am wholly convinced that this is the only practicable solution. I hoped that the right hon. and learned Gentleman would develop his arguments 957 in favour of a contrary view, but for reasons, no doubt, of brevity he did not do so. The right hon. and learned Gentleman then said that the Bill did not go far enough because it did not deal with noise. The hon. and learned Member for Northwich (Sir J. Foster) wholly answered that argument.
The hon. Member for Ludlow (Mr. More) wanted to leave the judges to develop the law of privacy. My only answer is that the Bill is precisely the way to achieve it. The judges at the moment have reached an impasse, and cannot develop a full comprehensive law of privacy. But if we pass a Bill of this kind establishing such a tort and the broad principles of defence, the result will be that it will be left to the judges to develop the application in detail, and to work out in relation to actual cases and in relation to thorough legal argument on each issue exactly how that tort should develop.
That would be my answer to the hon. Member for Stratford-on-Avon (Mr. Maude), who referred, though he did not get much sympathy when he did so, to what I agree is the very difficult and arguable question of whether or not the Press was right to disclose the name of the so-called "donor"—which is rather a misnomer—in the heart transplant case. If we were to try to legislate on that here one sees at once what a host of different problems the House would be confronted with if it tried to legislate on every detail of that kind. Surely it is better to lay down general principles and then leave it to the good sense of the judges to decide the right application of those principles, to some extent, conflicting principles—in other words, how to get the balance in which the essence of justice lies.
I agree that the matter is highly arguable and the only fair way is to leave it to the courts to decide. Parliament simply has not the omniscience to see every eventuality and to legislate for it. That is my answer to the Home Secretary, who still has doubts about whether or not this is the right way to legislate. I am fully convinced that his committee will come to the same conclusion as every committee which has studied this problem, that only by creating a general tort and putting forward general defences can one satisfactorily legislate on this 958 subject. As a fervent believer in the common law I believe this is a matter on which we can trust the judges to the full. It will be a sorry day when we cease to trust our judges to strike a right balance when conflicting rights are at issue. It is better for us to lay down principles and leave it to the courts to say what is the best way to apply them in particular cases.
My hon. Friends the Members for Accrington (Mr. Arthur Davidson) and Wolverhampton, North-East (Mrs. Renée Short) expressed the fear of the Press that this Bill would prevent the Press carrying out investigations of the kind which in recent years it has been doing with singular skill responsibility and ability. I assure my hon. Friends that it is certainly not the intention, and, I am convinced, not the effect, of this draft Bill to prevent in any way the kind of investigation which leads to the exposure, for example, of the Savundra type of case. I have not time to give reasons why I say the Press is adequately safeguarded in this draft Bill, but I will do so if my hon. Friends care to pursue the matter with me.
My hon. Friends the Members for Liverpool, Walton (Mr. Heffer) and Reading (Mr. John Lee) were worried about the wide wording of Clause 3(d), which they thought would give employers unrestrained rights to spy on their employees. Again, this certainly is not the intention. I do not think it is the effect, but, obviously, it is the kind of matter which, if this Bill had gone into Committee, certainly ought to be explored fully. When I hear that the National Council for Civil Liberties is concerned about this I know that it is not an objection that I should want to brush aside. I agree with all the tributes which have been paid to that excellent body in this field.
My hon. Friend the Member for Walton also stressed the importance of the distinction of the right of the public to know about public figures compared with private figures. That is a distinction which is already recognised by and known to the law. It applies in the field of defamation. The drafting of this Bill is intended to carry that distinction and understanding through to this sphere, I think it successfully does so.
|Division No. 50.]||AYES||[4.0 p.m.|
|TELLERS FOR THE AYES:|
|Sir John Foster and|
|Sir Henry D'Avigdor-Goldsmid.|
|Bray, Dr. Jeremy||Longden, Gilbert||Russell, Sir Ronald|
|Buck, Antony (Colchester)||Macdonald, A. H.||Shore, Rt. Hn. Peter (Stepney)|
|Callaghan, Rt. Hn. James||McNamara, J. Kevin||Silkin, Rt. Hn. John (Deptford)|
|Driberg, Tom||Maddan, Martin||Sinclair, Sir George|
|English, Michael||Morris, John (Aberavon)||Snow, Julian|
|Errington, Sir Eric||Moyle, Roland||Stonehouse, Rt. Hn. John|
|Freeson, Reginald||Mulley, Rt. Hn. Frederick||Weitzman, David|
|Ginsburg, David||Murray, Albert||Wellbeloved, James|
|Hattersley, Roy||O'Halloran, Michael||Williams, Mrs. Shirley (Hitchin)|
|Hogg, Rt. Hn. Quintin||Owen, Dr. David (Plymouth, S'tn)|
|Houghton, Rt. Hn. Douglas||Page, Graham (Crosby)||TELLERS FOR THE NOES:|
|Irvine, Rt. Hn. Sir Arthur||Peart, Rt. Hn. Fred||Mr. Ernest G. Perry and|
|Jenkins, Hugh (Putney)||Peel, John||Mr. William Hamling.|
|Lee, John (Reading)||Rees, Merlyn|
§ Question again proposed, That the Bill be now read a Second time.