HC Deb 03 May 1983 vol 42 cc139-68
'(1) Subject to subsection (2) below, a constable may obtain access to special procedure material for the purposes of a criminal investigation by making an application under Schedule [Special procedure] below and in accordance with that Schedule.
(2) Where by virtue of any enactment not contained in this Act a justice of the peace, on the application of a constable, may issue a warrant authorising a constable to enter premises and search for anything in them for the purposes of a criminal investigation—
(a) an application relating to a search for anything other than documents or other records which are special procedure material may not be made under Schedule (Special procedure) below; and
(b) an application relating to a search for documents or other records which are special procedure material may only be made under that Schedule.'.
Amendment (a) to new clause 8, in line 7, leave out 'documents or other records which are'.
Amendment (b), in line 10, leave out 'documents or other records which are'.
Government amendment No. 153, new schedule—Special procedure:
Preliminary conditions
1. The power to make an order or issue a warrant under this Schedule is only exercisable if one or other of the preliminary conditions is fulfilled.
2. The first preliminary condition is that a circuit judge is satisfied on the application of a constable that there are reasonable grounds for believing—
(a) that a serious arrestable offence has been committed; and
(b) that there is special procedure material in certain premises; and
(c) that that material is relevant evidence.
3. The second preliminary condition is that a circuit judge is satisfied on the application of a constable—
(a) that there are reasonable grounds for believing that there is special procedure material in certain premises;
(b) that but for section (Access to special procedure material) (2) above a justice of the peace would have power otherwise than by virtue of this Schedule to issue a warrant to search the premises for the material; and
(c) that it would be appropriate for a justice of the peace or judge to issue such a warrant.
Order to produce or give access to material
4. The circuit judge may make an order under paragraph 6 below if—
(a) the first preliminary condition and the conditions specified in paragraph 5 below are fulfilled; or
(b) the second preliminary condition is fulfilled.
5. The conditions mentioned in paragraph 4(a) above are that the circuit judge is satis-fied—
(a) that the special procedure material would be of substantial value (whether by itself or together with other material) to the investigation in connection with which the application is made; and
(b) that other methods of obtaining it—
(i) have been tried without success; or
(ii) have not been tried because it appeared that they were bound to fail; and
(c) that it is in the public interest, having regard—
(i) to the benefit likely to accrue to the investigation if the material is obtained; and

  1. (b) journalistic material, other than excluded material.

(2) This subsection applies to material, other than excluded material, in the possession of a person who—

  1. (a) acquired or created it in the course of any trade, business, profession or other occupation or for the purpose of any paid or unpaid office held by him; and
  2. (b) holds it subject—
    1. (i) to an undertaking such as is mentioned in paragraph (a) of section (Meaning of "excluded material") (2) above; or
    2. (ii) to a restriction or obligation such as is mentioned in paragraph (b) of that subsection.'. —[Mr. Mayhew.]

Brought up, and read the First time.

Mr. Mayhew

I beg to move, That the clause be read a Second time.

The First Deputy Chairman of Ways and Means (Mr. Ernest Armstrong)

With this it will be convenient to discuss the following:—

(ii) to the circumstances under which the person in possession of the material holds it,
that the material should be produced or that access to it should be given.
6 An order under this paragraph is an order requiring that a person—
(a) shall produce the material specified in the order to a constable not later than the end of such period not exceeding 7 days from the date of the order as the order may specify; or
(b) shall give a constable access to the material not later than the end of that period.
7. Where the material consists of data contained in a computer, an order under paragraph 6 above shall have effect as an order to produce the material in a form in which it can he taken away.
8. An application for an order under paragraph 6 above shall be made inter partes.
9. Where notice of an application for an order under paragraph 6 above is served on a person, he shall not conceal, destroy, alter or dispose of the material to which the application relates except—
(a) with the leave of a judge; or
(b) with the written permission of a constable, until—
(i) the application is dismissed or abandoned; or
(ii) he has complied with an order under paragraph 6 above made on the application.
Service of notices of application for orders
Notice of an application for an order under paragraph 6 above may be served on a person either by delivering it to him or by leaving it at his proper address or by sending it by post to him in a registered letter or by the recorded delivery service.
11. Such a notice may be served—
(a) on a body corporate, by serving it on the body's secretary or clerk or other similar officer; and
(b) on a partnership, by serving it on one of the partners.
12. For the purposes of this Schedule, and of section 7 of the Interpretation Act 1978 in its application to this Schedule, the proper address of a person, in the case of a secretary or clerk or other similar officer of a body corporate, shall be that of the registered or principal officer of that body, in the case of a partner of a firm shall be that of the principal office of the firm, and in any other case shall be the last known address of the person to be served.
Warrants to enter premises and search for special procedure material
13. A circuit judge may issue a warrant under paragraph 14 below where, on an application made by a constable, he is satisfied—
(a) as mentioned in paragraph 4 above; and
(b) either
(i) that service of notice of an application for an order under paragraph 6 above is likely to result in the concealment, destruction, alteration or disposal of the material; or
(ii) that the material is subject to a restriction or obligation such as is mentioned in sub-paragraph (ii) of section [Meaning of "special procedure material"] (2)(b) above and is likely to be disclosed in breach of it if he does not issue the warrant.
(18) In any application by a constable for a warrant under any other enactment to search premises in order to obtain evidence held on a confidential basis by a professional legal adviser or for the purposes of journalism, the provisions of this section (with the exception of subsection (11) above) shall apply to that application, as if the application were an application for an order or warrant under this section.
(19) The costs of any application under this section and of anything done or to be done under an order under this subsection (8) above shall be in the discretion of the judge.'.

Amendment (a) to the new schedule, in line 27, after `substantial', insert 'probative'.

Amendment (b), in line 27, leave out from 'value' to `in' in line 28 and insert at the trial of the offence'.

Amendment (c), in line 34, leave out 'investigation' and insert 'trial for offence'.

Amendment (d), in line 37, at end insert 'and, in particular, to any duty of confidentiality under which the evidence in question is held and to the public interest in the free and full reporting of events.'.

Amendment (e), in line 71, leave out paragraphs 13 to 16.

Amendment (f), in line 78, leave out subparagraph (ii).

Amendment (g), in line 83, at end insert— `14A. Nothing under paragraph 14 above shall authorise the seizure of any excluded material or any special procedure material except that which is specified in the warrant.'.

Mr. Mayhew

New clauses 7 and 8, together with the new schedule introduced by amendment No. 153, restate in revised form the main provisions of clause 10. They also apply the relevant safeguards of clause 10 to existing search warrant provisions for confidential documents. In other words, as I have already explained, the clauses not only provide a means, as recommended by the Royal Commission, of enabling the police to obtain access to evidence of the most serious crime which is held on confidential bases and which those holding that evidence may therefore be unwilling voluntarily to disclose to the police, but ensure that the police, in obtaining access to stolen or forged documents which may be held in good faith on a confidential basis, may do so without unnecessary recourse to a search of the premises concerned in which they may inevitably see confidential papers relating to innocent individuals.

New clause 7 accordingly defines "special procedure material". The definition is taken from clause 10 of the Bill as printed. The definition is cast in general terms, but that is a protection for the individual rather than the reverse.

The procedure under which a judge orders the production of evidence to the police after an inter partes hearing should not be confined to the members of the established professions with formal disciplining codes and professional ethical codes. Its benefits should be available in all cases where there are genuine considerations of confidentiality and so competing considerations of public interest as between the detection of crime and the preservation of confidences. Those who have tried to draw up a select list of those entitled to the protection of the production order procedure are, therefore, missing the point and unjustifiably narrowing the scope of these provisions of the Bill.

The definition of special procedure material also includes journalistic material constituting evidence of a serious arrestable offence other than journalists' confidential records, which are, of course, now excluded material. In other words, if there were, say, a photograph constituting evidence of a serious arrestable offence—say, a photograph of a particular incident during a riot — under the Bill as printed that evidence would fall under clause 9.

We have accepted, however, that it is right that such material, even though not acquired in confidence or from a confidential source, should nevertheless attract the additional protection of the special procedure. This is not to say that we are trying in the Bill to define journalists. It is not necessary to do so, and even if we succeeded in such a problematical exercise the only result would again be to narrow the scope of the special procedure to an excessive degree. The point is that not everything that is published constitutes journalism and not everything that is obtained for the purpose of journalism is intended for publication.

Mr. Christopher Price

I realise that the Minister is engaged upon a 100-yards sprint through his material, and I hesitate to stop him at the 50-yard point. I was listening with such care as I was able to apply to what he was saying. Is he saying that journalistic material which is not obtained in confidence is always going to be photographic material, because he only gave examples of photographic material? If that is not what he is saying, could he give some extra examples of the sort of journalistic material that is not obtained in confidence and that is not photographic material?

Mr. Mayhew

I do not think that I have to produce an inventory. It is enough, I think, for the hon. Gentleman and, indeed, for the profession, if I say that journalistic material as defined which is not held in confidence or acquired in confidence, none the less, in order to avoid unnecessary searches of journalistic premises, is subject to the special procedure. In other words, a police officer who wishes to obtain production of it must go to a circuit judge and ask for it. The sole objective is to avoid unnecessary searches of journalists' premises with the dangers thereby involved.

New clause 8 paves the way for the new schedule. It requires the police to employ the special procedure set out in the schedule in respect of documents held in confidence which are now liable to seizure under a magistrate's warrant issued under the present law. The new schedule sets out in what I am certain is a clearer and more satisfactory way the relevant procedural provisions of clause 10, as modified by the additional safeguards to which I have already referred.

12.30 am
Mr. Arthur Davidson

The Minister read his brief interestingly. I am sorry that he read it, because he always does so much better, as he proved throughout in Committee, when he does not stick strictly to his brief. He always explains things very much better and much more comprehensibly when he does it on his own.

The new clauses deal with the strange phrase, peculiar to the Bill, of "special procedure material", and explain the procedure for gaining access to special procedure material. That procedure is contained in a massive and lengthy new schedule. I do not complain about the provisions in the schedule, but I think the Minister would be the first to admit that it is exceptionally complicated, containing more than 100 lines.

The difficulty is that there are three new clauses. It has taken two new clauses and a schedule to set out something that was previously contained in one clause, which, admittedly, we sought to change. We are glad that the Minister has changed it.

The arguments against the powers in the original clauses 9 and 10 were made at length in the previous debates. I assure the House that I do not have the slightest intention of going over those arguments again, nor would you allow me to, Mr. Armstrong, if I tried. However, it is a matter of some comment at least that in the Government's attempt to satisfy the various criticisms that were made in Committee in an attempt to improve the Bill, they have come up with three clauses, all of which contain some complications.

The main criticism of the new clauses, which follow from the previous new clauses, which we have now discussed in great detail, is that there are still two separate procedures laid down by the Government for obtaining evidence that the police seek. There is the section 9 procedure and the new special procedure, which is carried out by a complicated mechanism before a circuit judge. We feel that it is wrong that there should continue to be two separate procedures and that a circuit judge should be the proper tribunal to hear all cases where the police seek to obtain evidence, whether the evidence is held on a confidential basis or is special procedure evidence. We have adduced the arguments about that already.

Not only is the ordinary citizen who does not have the advantage of being in a profession or holding evidence on a confidential basis put at a disadvantage because the nature of the material that he holds and whether it is handed over or not, will be decided by a magistrate, but the procedure is confusing. The Government will face the following difficulty. In practice, a superintendent or senior police officer has to make a decision. He says to himself, "I have got this case on its feet, but I want some extra evidence." Will he really go through this elaborate procedure of deciding whether it is special or confidential material, whether to go to the magistrate or the circuit judge, and if he goes to the magistrate and has it wrong, whether to make a fresh application and go to the circuit judge? It will be a great burden and will make it difficult for the police officer to decide to go through all that complicated procedure. It will make it difficult for the superintendent to advise his officers that they should go through this new complicated procedure.

At present, if there is some evidence that eludes the police, but there is a fair amount of evidence against the person being investigated, the officer will charge him. Alternatively, the police may go to look for the evidence. If they know where the evidence is, they will ask for it to be handed over, and in most cases it will be handed over. In the rare cases where it is not, and there is a refusal, the police will do the best that they can. The Royal Commission, as the Minister knows, pointed out that in the overwhelming number of cases, if the police searched for evidence, there was not usually a refusal.

A police officer will now have to decide whether the evidence is excluded material or special procedure material, or whether it comes into neither category. He will have to decide whether to go to a magistrates' court or to a circuit judge, or whether to bother at all. The practicalities of the elaborate new clauses will not be helpful or sensible. I can see textbooks written on the special procedure material. Perhaps we shall have "Mayhew on Special Procedures", and no doubt it will be a fascinating textbook. Considering the rarity with which the procedure is likely to be asked for, and its complications, I wonder whether it is worth the Government's time coming up with such a complicated and technical procedure.

The procedure is somewhat improved by the amendments of my hon. Friend the Member for Stockport, North (Mr. Bennett). No doubt he will speak to those at some length. His amendments limit the evidence sought to probative evidence for the trial in case, rather than evidence that is helpful to the investigation, which is much wider. In all those circumstances, I was anxious to hear what the Minister had to say. I was grateful for his explanation, but I cannot help feeling that although the new clauses are an improvement on the clauses that the Government first came up with — clauses that were severely criticised by almost every professional body and received a great deal of criticism in Committee—and despite what the draftsmen have attempted to do, they have come up with something that is so complicated and confusing that very few police officers will take advantage of them, which might be a mercy.

Mr. Eldon Griffiths

I am sure that my hon. and learned Friend the Minister will be glad to hear that it should be possible for me to be fairly brief. Given that we have determined to create this special category of persons —the new privileged elite arising from the Police and Criminal Evidence Act 1983—the police will have to treat these people as special. There will be a treatise on the special category people.

In Committee, the hon. Member for Lewisham, West (Mr. Price) entertained us all—himself, in particular—with copious references to the 1,000 page manual of the Metropolitan police. He quoted some marvellous passages, showing how the police tried to spell out matters. Indeed, my right hon. Friend the Home Secretary was finally persuaded to publish the material. When it comes to writing the special procedure and all that goes with it into the Metropolitan police handbook, it will take at least another 1,000 pages, and I hope that the House is aware of what it is doing to the paperwork of the police.

In the circumstances that the House has created, so be it. Therefore, my comments will be brief. I say with affection to my hon. and learned Friend, although I do not think that he feels much affection for me at the moment, that I was surprised that, in introducing this group of amendments, he made no reference to the schedule. It may have been an omission or oversight on his part. Perhaps he did not wish to open up an area that was better left closed.

Mr. Mayhew

I did refer to it.

Mr. Griffiths

In that case, I must have missed it. My right hon. and learned Friend must have slipped it in at the speed of light. I merely ask whether at an early stage he will ask his Department to produce a simple and clear-cut guide to the special procedure for the benefit of the police service and the general public? That is not too much to ask. With advisers from the Police Federation, I spent many hours tracing the ways in which it will work in practice. We had to keep cross-referencing and looking up clauses and exclusions here, there and everywhere. It is a most complicated procedure. However, in the circumstances, I see no alternative to it. Therefore, I shall gladly vote for it, and I ask my hon. and learned Friend to try to produce a simplified version.

Mr. Alexander W. Lyon

This procedure, which has been devised for particular forms of information, is a nonsense born of the original draft of the Bill, with the concessions—first in Committee, and now—leaving a residue of information which certainly should not receive any special privilege.

At present, if there is power under a statute for a warrant to be issued—for instance, under the Forgery Act—for a police officer to get information, that is issued, whatever the nature of the information and whoever has it. Under the original draft of the Bill that was contained in a general search clause, clause 9, with only one special exemption, which was for confidential information, in clause 10. Confidential information related to particular relationships and the evidence that had been divulged in confidence within those relationships. Following the Committee stage, as a result of pressure from a number of professional groups, that confidential information has been exempted. Under clause 10 it was possible to obtain it under the special procedure. Now it is totally exempt material.

If that were all, we should not need new clause 7 on "special procedure material". The result of the conversations between the Minister and the various interest groups is that, in addition to exempt material—confidential material that was divulged to the person in an atmosphere of confidence — there is now to be other material that will be given a special procedure merely because these people belong to certain professional occupations. It is material which, if held by someone else, a dustman or an author, will come under the general procedure contained in the original clause 9, as amended by new clause 2.

That is nonsense. If a journalist obtains information from someone who is committing a criminal offence and keeps it in his notebook or, better still, is given a document by a criminal, that is exempt material. The police cannot get at it under the new clause. However, if the journalist has undertaken research and picked up material, not in confidence, such as a notebook or some other property that is relevant to an offence, the police do not have to attend an inter panes hearing.

12.45 am

If I got hold of such information as a private individual, the police could go to the magistrate, ask for a warrant and get one. If a journalist has such information the police must go to a special inter panes hearing before a circuit judge.

We are creating not simply special privilege involving confidential information, but special privilege for particular types of people—journalists in particular. I do not think that that is right. Journalists have always argued that they are no more privileged than any other member of the community; that they do not have any particular rights. They thrust that down our throats when we talk about the power of the press.

The Minister, by a side wind, has created for particular types of people a special privilege which does not apply to anyone else, not because of confidentiality, not because of safeguarding the public; but simply because of the nature of an occupation.

There are two ways to get rid of the anachronism. The first is to decide that everyone should have an inter partes hearing unless there is reason to believe that they themselves are criminals and that the hearing would provoke the destruction of the material. The second is to decide that nobody should have such a hearing and that the privileged occupations should be left with their privilege only in relation to confidential information.

The Government have not seriously considered the nonsense that they are creating. I hope that they will reconsider, not now perhaps, but before Report on Monday, or in the Lords.

Mr. Timothy Smith (Beaconsfield)

I welcome new clauses 7 and 8 and the new schedule which together provide a way of dealing with special procedure material. Despite what the hon. Member for York (Mr. Lyon) said, they constitute a major improvement to the procedures in clause 10 for dealing with evidence held confidentially.

I pay tribute to my hon. and learned Friend the Minister of State for listening with care and patience to representations by various organisations and for seeking to allay their anxieties.

My interest is as parliamentary consultant to the consultative committee of accountancy bodies. A number of that body's original worries about clause 10 have been disposed of satisfactorily. It was concerned that "serious arrestable offence" was not specified and not confined, in relation to clause 10, to those categories for which such a power could be justified. That point has been met because there is now a new definition of a serious arrestable offence in clause 74, which is a marked improvement on the original definition.

Secondly, the consultative committee was concerned that an application by the police for an order under clause 10 was to be made without giving the professional adviser concerned an opportunity to be heard in reply. That, too, has been met because the new schedule dealing with the special procedure provides in paragraph 8 that An application for an order under paragraph 6 above shall be made inter partes. Thirdly, the consultative committee was concerned that confidential material might relate to the affairs of an innocent third party client of a professional adviser who not only had no opportunity to be heard in reply but might not even be aware of the inquiry taking place. Although that is no longer so in the case of a production order, it remains so in the case of a search warrant, as provided by paragraphs 13 to 16 of the new schedule.

Fourthly, the consultative committee was concerned that if such a power was introduced it should be available not at the instance only of a circuit judge but rather of a High Court judge. That point has not been met, but I accept that the level of authority required by the Bill is already higher than that required by almost all other statutory powers enabling the police to obtain evidence.

Therefore, there is no doubt in my view but that the new schedule goes a long way to meet the anxieties expressed about the original clause 10, so much so that I now have only one major reservation about the new schedule. It relates to paragraphs 13 to 16, which my amendment seeks to delete. Those paragraphs empower a circuit judge to issue a search warrant where service of notice of a production order is likely to result in the concealment, destruction, alteration or disposal of the material". The chairman of the consultative committee of accountancy bodies wrote to my hon. and learned Friend the Minister on 4 March, saying that The power to issue a warrant, ex parte, in circumstances where it is considered that evidence may be destroyed by issuing a production order is a matter of great concern to the accountancy profession. The issuing of a warrant under clause 10, subsection 10, presupposes that the person on whom the warrant is served will suppress evidence whether this is true or not. The serving of a warrant on a professional adviser could therefore destroy the professional reputation of that adviser, even though subsequently no evidence may be found incriminating him in the offence under investigation, because the very fact that a judge considered the professional adviser capable of being linked with the offence, would destroy his reputation with his clients and with the public. We cannot believe that it is the intention of Governmen to legislate in this way, which would not allow the professional adviser an opportunity to protect his professional reputation. I appreciate that it is the view of the Government and of the Philips commission that a reserve power of this nature is essential to take account of cases in which the holder of evidence is himself implicated in the offence and would therefore have a strong motive to destroy the evidence if the interest of the police in the matter became known.

In reply to the letter that I have quoted, my hon. and learned Friend gave two assurances which I shall place on record. First, the Bill creates a presumption in favour of the issue of a production order rather than a search warrant. I appreciate that the search warrant procedure will be used only in extreme and exceptional circumstances. Moreover, The onus will be on the police to satisfy the judge that this presumption should be overridden. Judges will … bear in mind that they have heard only one side of the story, and accordingly require solid grounds before concluding that a search warrant is necessary. Secondly, the consequences for a person's professional reputation of the issue of a search warrant would … ensue only if the fact that a warrant had been issued became generally known. The way in which the police deal with the matter in practice will therefore be crucial.

In his letter my hon. and learned Friend said: I therefore undertake to consider the issuing of guidance to the police, stressing the sensitivity of Clause 10 warrants and that they should be executed with the utmost discretion. The Home Secretary has in fact already undertaken to give guidance, circulated to chief officers recommending that senior officers should always take charge of such searches; and I am confident that senior officers will appreciate the need for discretion. I very much appreciate that reassurance because it is absolutely crucial that such cases be treated with the utmost discretion. Nevertheless, on balance, I should prefer that paragraphs 13 to 16 of the new schedule be omitted from the Bill, which is what amendment (e) seeks to achieve.

I welcome the changes to be made to the procedures. The new clauses and the new schedule constitute a major improvement on what was previously in the Bill.

Mr. Mikardo

The hon. Member for Beaconsfield (Mr. Smith) spoke with gratitude on behalf of one of the groups that have been placed in a privileged position by new clauses 2 to 8. But, as has been said several times in Committee—notably by my hon. Friend the Member for York (Mr. Lyon) and the hon. Member for Bury St. Edmunds (Mr. Griffiths)—while we all agree that the special, delicate positions of some groups, such as priests, should be protected, we have provided some civil liberties protection for groups which amount to a relatively small minority of the population.

In achieving the balance that we all want between effective policing and the maintenance of individual rights, what we have done partially to correct the gross imbalance in the original clauses 9 and 10 has meant that we have leaned in the direction of individual rights for certain categories of people. I have made a rough calculation, which shows that in my constituency there are between 600 and 800 people whose position will be improved by new clauses 2 to 8. I am worried about the remaining 50,000 or 60,000 in my constituency.

While I understand hon. Members such as the hon. Member for Beaconsfield throwing their caps in the air with joy—although the hon. Gentleman's enthusiasm was a little muted and he wants even more privilege for the group that he represents—I wish that we could do more for ordinary people. Until we do, the Bill will still be a very bad Bill.

The hon. Member for Beaconsfield received an assurance that only senior officers would be authorised to take charge of searches. I wonder whether he received that assurance before or after the Home Secretary tabled new clause 1, which we shall consider on Report. Under that new clause, a senior officer can delegate his powers under the Bill to any other officer. The assurance that the hon. Gentleman has received will give him some comfort for the moment, but I think that his comfort will evaporate quite quickly when we debate new clause I on Report.

1 am

I hope that the way in which the Minister performed a cavalry charge through his brief when introducing the new clauses does not indicate that he thinks that they are less important than those in the two groups which we discussed earlier. The same problems arise partially when considering this group. A justice of the peace will have to decide whether he should issue a search warrant. He will have to make that judgment in the absence of any evidence apart from what he is told by the officer who is making the application for the warrant.

In the course of making that judgment, the justice of the peace will have to take many factors into account. One of the factors will be whether the material that the officer is chasing and wants a warrant for is excluded material. If it is not, the justice of the peace will have to assess whether it is special procedure material. I do not know how he will make that judgment. In many cases, the officer involved will dig a nugget out of the ore. If he finds some material, he will not know its nature until it is in his hands. He will not know until that moment whether it is material which falls within the defintion of excluded material, whether it falls within the defintion of special procedure material or whether it was material obtained on a seal of confidence which was held from that moment by one or more persons on that basis.

The poor justice of the peace will have to take eight or 10 factors into account, and he will have an extremely difficult judgment to make. When I put this argument to the Minister—perhaps I did so in a way that was too baroque for his taste — he dismissed it in a flippant manner with a reference to Justice Shallow. I have known and admired the hon. and learned Gentleman for many years, and it is the first time that I have known him fail to treat a serious argument seriously and to seek seriously to answer it. His flippant reference to Justice Shallow paid a greater tribute to his literary erudition than to his perception of my argument, which obviously he did not cotton on to.

In all cases where there is no interpartes procedure, the justice of the peace will have to form an opinion on the evidence of the officer who has applied for a warrant. What information will he get from that officer? He will get information from him that will be conducive to the success of the officer's application. I do not suggest that the justice will ask the officer what view he takes, but he will ask him some questions. But it does not matter what question he asks the officer who makes the application, because the officer will only give answers that are conducive to the success of the application, otherwise he would not be making it.

There would be many cases in the group of clauses about which we are talking in which the justice might ask the constable—when we have dealt with new clause I it will probably be a constable—"Have you any evidence to suggest that this is not excluded material? Have you any evidence to suggest that this is not special procedure material? What is the chap going to say? If he were absolutely honest he would say "I am blowed if I know whether it is excluded or special procedure material because I am not a prophet and I am not an astrologer and I have no means of knowing what shape the material is in until I see it." If he were honest he would say, "I do not know." He will not say that, because he might not get his warrant. If he goes back without his warrant it will not be good for him.

That person will give all the nice answers. He will say, "I should not think, Sir, that this would be excluded or special procedure material." He will get his warrant. He will return and tell his mates at the station, "I have got my warrant out of old Bloggs. Next time you want a warrant, don't go to him. He asks a lot of awkward questions. Old Snooks is much easier." It is a serious, not a shallow, point. The Minister has loaded a virtually impossible task upon justices of the peace.

If all the hearings were inter partes there would be an opportunity to weigh one submission against another. After all, justices of the peace, circuit judges and all other judges are trained to weigh one piece of evidence against another. One cannot weigh one piece of evidence against thin air. That is what the poor justice is being asked to do. I believe that that is the essential defect in this series of clauses.

I hope that the Minister will think about it again and realise that he was rather superficially dismissive of what is a genuine difficulty and a cause for anxiety.

Mr. Tilley

As we are all declaring interests, may I say that I speak as a card-carrying member of the National Union of Journalists, which at the moment is not a sign of a profession or an activity. I believed that with the last group of amendments we had scored a considerable triumph for journalists or journalism, although it had been branded as an uncaring profession.

I am rather worried when I see the special procedures that follow from new clause 7. Some journalistic material is not protected as well as that which is excluded. I echo the question asked by my hon. Friend the Member for Lewisham, West (Mr. Price), who I think is a carrier of a similar union card, and ask the Minister what "journalistic material" means. He said that the Government had been wise not to define "journalism". That was a remark of wisdom stemming only from caution. By not giving a definition of "journalism", "journalist" or "journalistic", the Government are creating far more confusion than they need to do. The Minister added to that confusion, because, on this and on the previous set of amendments, he dropped worrying hints as to the Government's thinking.

Before I analyse those hints, I wish to shoot down the canard from the hon. Member for Bury St. Edmunds (Mr. Griffiths), who suggested that not all journalists were honourable and that they might invent fictitious sources. I do not understand how that can be relevant to these proceedings. I do not understand how a police officer could or should have the right to consult or examine a nonexistent file or notebook. If such journalistic activity occurs, it cannot be suggested that it is of any concern to the Committee.

When defining journalism, the Minister said that it was the activity and not the profession that really mattered. He referred to a photograph taken during a riot and gave that as an example of what would come under the new clause. The point was that the photograph might well be evidence of a serious arrestable offence having been committed by one of the rioters.

Many people take pictures. My experience in Brixton was that many people photographed the riots. Some were fully-fledged newspaper and television photographers. They were collecting journalistic material. Others were amateur photographers or people who happened to have a camera with them. I assume that some of those people, seeing a riot in progress, thought that it would be a good idea to take pictures because they might be able to sell some of them to newspapers. The common sense interpretation of that—hon. Members have had common sense pushed down their throats as the only method of interpretation—is that such a person would be engaging in creating journalistic material. Equally, their friends and neighbours could be taking pictures without any thought in their minds of selling the photographs to the press. That is not the creation of journalistic material. They could, after discussion, realise what fine photographs they had taken and try to sell them to the newspapers. Does that count as journalistic material? Does the journalistic purpose have to follow the creation or collection of the material?

Those are examples of the mess that the Government are getting themselves into. Far from suggesting, as did my hon. Friends below the Gangway, including my hon. Friend the hon. Member for York (Mr. Lyon), that journalists have too many privileges, we may be giving them fewer privileges, thereby enabling many others to claim journalistic privileges—which is a new concept in English law — for material that the Government never intended to be introduced when they put forward this legislation. I thought that the only interpretation was to talk about journalistic materials as being that produced by professional journalists. I accept that the Government might not want a professional journalist to be defined as a member of the National Union of Journalists or even of the Institute of Journalists. The definition would have to be a little wider than that.

1.15 am

The Government have not considered whether the provision should include all the material held by a journalist, regardless of whether it is in his or her special field. Apparently, such issues do not matter, because the Minister has told us that the profession of the individual is not the key factor. Non-journalists, or those who are not professional journalists but who create or collect material for journalistic purposes, cover a wide range. Those hon. Members who are or have been journalists will be aware that a wide range of people, including taxi drivers, policemen and sometimes even Members of Parliament, are well aware of the news value of bits of information or documents, and will keep an eye open for them. They will have journalistic contacts to whom they can pass the information, and those contacts may or may not accept it. At every stage, the information or document is surely a piece of journalistic material, and confidences may also be involved at every stage.

The new clause, and those that precede it do not guide us about how that point would be covered. They do not offer any guidance about how the police would deal with an individual who said that the document or set of notes that he had about something that he had witnessed or discussed had been compiled for journalistic purposes, in the hope that he could obtain some money from the newspaper if it was passed on. The Minister has hinted that that would come under the definition. If there is a distinction between amateur and professional journalists, there must be a distinction between staff journalists and freelances. What happens to the freelance who writes books and magazine articles? Half of his or her work will be covered by the clause, and half of it will not be.

Therefore, I have pointed out the anomalies and problems that the Government have unfortunately created for themselves by trying to cover the important question of journalistic confidence. In the process, they have not only covered the area embraced by the clauses dealing with excluded material but have raised many more questions than they thought existed by bringing all other journalistic activity into new clause 7. I know that new clause 6 is grouped separately, but it involves the definition of journalistic material, which recurs in new clause 7. Therefore, it is important to consider it. Subsection (2) states: Material is only journalistic material for the purposes of this Act if it is in the possession of a person who acquired or created it for the purposes of journalism. Does that mean that it must be exclusively in the possession of that person? Are the Government saying that if the material has been passed on in any way by the journalist who first acquired or created it, it loses its cover of what I shall term absolute journalistic privilege? If that is what the Government are saying, I should point out that they are providing very little cover for the sort of material that journalists, particularly journalists on major newspapers, will want to protect.

If we are considering serious arrestable offences, we are dealing with large or widespread crimes. It is in the nature of that type of reporting activity that information is pooled. Information may be passed on by a journalist to a news editor or there may be a team of reporters—it does not matter whether they have a fancy title — who pool information. Newspapers also have branch offices which send material to a head office to see whether a major news story exists.

My understanding from what appears on the face of new clause 6 and hints that the Minister has given is that such material would lose the protection of being excluded once it had been passed on although, in my experience, most journalists would regard the confidentiality to the original source to remain and be binding on them. I am worried lest, when the information has been collated, the newspaper will tell the police that it thinks it has information and that it would like police help to confirm that something is happening. That is the point, especially in Fleet street, when the police become aware that the information that they want might be in a journalist's notebook or a newspaper file.

It might also be the point at which the protection that the Government are rightly and, I am sure, in the right spirit trying to give is lost. The Government should reconsider what they think they are doing or explain to the Committee at greater length what they think they are doing to protect journalists. It is clear to me, as a former working journalist and perhaps a future working journalist, that the Government do not understand the process of news gathering as it happens, today. Nor do they understand that many people are occasionally, spasmodically and amateurishly involved in what they regard as journalistic activity. These and earlier new clauses do not meet the Government's intention to protect professional journalists.

I am saying the opposite of what my hon. Friend the Member for York said. It is a pity that he is not here, but I am always glad to contradict him. These new clauses will achieve the very opposite of what the Government say that they intend to do. That is putting the best interpretation on the gaps in the new clauses as they stand and what the Minister has said. The less charitable interpretation is that the Government were determined, given the furore that there has been on this issue and the anxiety from the press, to include some new clauses that include the word "journalism" which appeared to give journalists all the freedom that they were rightly demanding.

Perhaps the Government intended merely to keep the press quiet by telling it that all was well but then, much later, to tell it that special cases, as the Minister never fails to tell us, must be judged on their merits. The press would then learn to its cost how many loopholes exist in this apparent protection of its privileges.

I do not know which interpretation is right, but, whichever is, I do not believe that this group of new clauses and the ones that we discussed earlier are adequate to protect journalistic material and other confidential material about which there has been such a public outcry.

Mr. Christopher Price

I take issue with some of the things that my hon. Friend the Member for Lambeth, Central (Mr. Tilley) has said. Although we appreciate their motives in bringing forward this mass of new clauses and this enormous new schedule, it is clear that the Government are in the most appalling mess. That certainly justifies their decision to have the Recommittal now, followed by Report, because it gives us an opportunity to get these matters right.

In the context of these new clauses, I see developing a sort of alliance between Opposition Members, the hon. Member for Bury St. Edmunds (Mr. Griffiths) and the important folk in the Police Federation, which he represents and with which the Government must come to terms. Indeed, they did so in Committee.

One interpretation of the mess that we are in is that given by my hon. Friend the Member for Lambeth, Central. According to that view, the Government said, "We shall have a June election and we cannot possibly go into an election campaign with the bishops, doctors and the press against us. Only a lunatic and psychotic Government would do that. Therefore, let us make our peace with the bishops, doctors and the journalists. The Bill will not go through anyway, and at least we shall then sail into an election with a favourable atmosphere from the press, the medical profession, the Church and our pastoral masters. We shall then get some nice programmes on the Sunday before the election instead of some criticial ones."

I do not take that view, because, having listened to the Minister of State throughout the Committee stage, I take him to be a man of his word. However, the way in which the Government have behaved in the last few weeks is calculated to persuade a rational man of the view that I have just described. As a result, the Minister will have to say something to persuade me and other Opposition Members that that is not the case.

I have crossed swords from time to time with the hon. Member for Beaconsfield (Mr. Smith) since he returned to this place from his new, lush, home counties base, which seems somewhat safer—

Mr. Tilley


Mr. Price

I am very jealous indeed. The BBC-ITN computer has now recalculated my majority to be exactly 870 over my Conservative opponent. Of course I am jealous. The hon. Member for Beaconsfield has returned to us from advising the accountants.

Throughout the Committee stage, every time I went to certain Home Office functionaries with whom I drank socially they put their arms around my shoulder and said, "My dear Christopher, we have nothing against these citizens advice bureaux people or the Samaritans. The bishops are our best friends. We love the vicars. It is the accountants. Those are the crooks we want to get hold of, and that is why we must get hold of some confidential material in a hurry, because accountants' fraud is big business which involves millions of pounds." I have much sympathy with those who said that to me. That is why I am in favour of paragraphs 13, 14, 15 and 16 of the new schedule which the hon. Member for Beaconsfield (Mr. Smith) wishes to cut out. There is a distinction between accountants who are into big money — Parliament is about money and about stopping people getting away with massive tax fraud—and the caring professions and the journalists.

1.30 am

I am happy that a circuit judge can send the police in to get the evidence ex parte, without consulting the accountant, whether he is a grubby little accountant on the fringe of the city, in Finsbury or somewhere like that, or whether he is a partner in Deloitte Haskins and Sells, Peat Marwick Mitchell and Co. or Price, Waterhouse and Co. —I must make it clear that that is no relation of mine—or one of the great and grand accountants to whom the Government give £500,000 for the Serpell report or some other report.

Whether it is a minnow or a large, fat salmon, I am in favour of a circuit judge having the right, in appropriate circumstances, if he is convinced that the relevant accountant is a crook and liable to bury the evidence, to send the police in to get that evidence. The authorities are not always lucky. A few years ago the Inland Revenue took all the books away from a large road construction firm, but failed to get a conviction at the end of the day.

The point of special pleading of the hon. Member for Beaconsfield was interesting. He said that if it were known that a circuit judge had said that it was proper for a firm such as Peat Marwick Mitchell and Co. or Price Waterhouse and Co. to be raided because it might bury the evidence, that might destroy its reputation for ever. That might be so, and it might be tough on that firm of accountants, but I could take the hon. Member for Beaconsfield to a number of houses in my constituency where the police have smashed down the door and broken in and where the reputation of those families has been destroyed for ever.

In principle I am not in favour of making one law for the professions, whose reputation should not be destroyed for ever, and a totally different law for ordinary constituents whose reputation can be destroyed for ever on the say-so of a magistrate who makes a decision ex parte. That is at the nub of the group of amendments which we are discussing and at the nub of the unsatisfactory situation that we are reaching.

Mr. Andrew F. Bennett

Does my hon. Friend agree that often, when the houses of his constituents are raided, the damage to their property forms the greater part of their total assets? It is harder for them to replace what has been damaged and they are caused more inconvenience if they have to spend time and effort getting the damage repaired by the police.

Mr. Price

I agree with everything that my hon. Friend has said. We all get these cases at our surgeries. Apart from having the door broken down, which is not uncommon in my constituency, the family knows that all the neighbours, who have been peering through their net curtains, have seen the police car arriving. The effects of the police visit remain for a long time.

I take the point made by the hon. Member for Beaconsfield about his rich and powerful friends in the accountancy profession, but the logic of the point applies to every constituent of every hon. Member. If we are to pass, not hybrid Bills, but Bills which deal fairly with every British citizen, we must make an effort to be evenhanded to both the powerful and wealthy and the poor simultaneously.

I suspect that I am not wholly at one with my hon. Friend the Member for Lambeth, Central on journalists. As a working journalist and a member of the National Union of Journalists—I have my card here and it may look like year's, but it is not—I have never wanted any special privileges that ordinary members of the public do not possess. Journalists should not claim such privileges. Sensible journalists lock confidential material away in a place where the police are unlikely to find it. Indeed, some of my journalist friends who feel that their files are liable to seizure have given me one or two, foolishly thinking that as a Member of Parliament that material is safer in my filing cabinet than in theirs.

Most journalists that I know look after their confidential material as carefully as possible and are perfectly happy for the courts to decide, at an inter panes hearing if necessary, whether it is proper that they should divulge it, knowing that if they feel strongly that they should not, they can appeal against any decision up to the highest level and, if necessary, go to prison for not doing so at the end of the day.

Mr. Tilley

Is my hon. Friend saying that he and his journalist friends are happy with a system where journalists can be sent to prison fr contempt of court, not for refusing to produce material, but for refusing to name sources?

Mr. Price

No, I am not happy with that situation, from Mr. Mulholland in the Vassal case onwards. Courts are foolish to allow matters to proceed that far. But I am happier for Mr. Mulholland and some of his successors to go to prison rather than divulge their sources, than I am for certain journalists—it is always certain journalists—to be given some special privilege which is not available to other members of society.

I want to illustrate that by the various legislative efforts in recent years to divide the journalist profession into the priviliged and the underprivileged, because that is what the clause will inevitably mean. In the Harman judgment which has now gone to Strasbourg, the Appeal Court attempted to say that there were two sorts of journalists — court reporters who could be trusted and feature writers such as David Leigh of the Council who could not.

When we discussed the Contempt of Court Bill in Committee two years ago, the hon. Member for Putney (Mr. Mellor), who has now reached the heady heights of Under-Secretary of State for the Home Department, was almost a rebel on the Conservative Benches. I am sure that his failure to rebel fully on that occasion bore its full reward. We had to decide on that Bill what was the nature of a journalist who could bring a tape recorder into court. We are constantly put in this position in the House of Commons of trying to say "This person is a journalist with special privileges and that person is not."

Mr. Tilley

Surely the point about this piece of legislation on which we can all agree is that it is not trying to define a journalist. It is saying that practically anyone who wants to dabble in journalism or even thinks about dabbling in journalism is covered. So, far from cutting down the number of journalists who are protected, it is extending the privilege to anyone who wants to have a go.

Mr. Price

I do not think that we are quite so far apart, because I approved the National Union of Journalists' attempt to get the Bill changed. A delegation went to see the Minister of State and asked for a few amendments. The Minister said, "Yes, and would you like some more?" They scratched their heads and said they would like a few more. The Minister said, "Surely that is not enough. Would you not like some more?" Thus we arrived at the present state of the Bill. There is no secret about the fact that the NUJ delegation was astonished at the positive avalanche of concessions given to it, and nobody looks a gift horse in the mouth, so of course they accepted all those concessions. I do not think, however, that the journalists necessarily wanted any privileges for themselves that were not extended to everybody else.

This is not a problem in a country that has a written constitution which says that there shall be freedom of the press or something like that. In the United States of America, where journalists have very substantial legislative protection, they get that protection from a clause entrenched in the constitution. We do not have that in this country.

Mr. Tilley

Is my hon. Friend saying that if he were an American legislator he would oppose those special privileges that the members of the American press have?

Mr. Price

Not at all. I am saying that if I were an American legislator I would defend the constitution, which entrenches those freedom of information privileges, which, as my hon. Friend says, extend way beyond journalists into a basic right of freedom of expression and of the dissemination of information. That is the right way to put it and it is put correctly in the American constitution.

The Government, it seems to me, have got themselves into a difficulty. Hon. Members on both sides of the House agree that by giving privileges to this, that and the other group we have in a sense created in this country a new race of privileged clerics. Certain people are privileged before the law and others are less privileged. That is a situation from which I instinctively recoil, because, as a democrat, I like being in a country in which everybody is as equal as possible before the law.

I am certain that the solution to this problem is to give to everybody, not just to those privileged people, the right of an inter partes hearing, whether it is before a magistrate or a circuit judge, so that the matter can be argued out — subject only to the exception, which is in the schedule, that, if the police honestly believe that an inter partes hearing would frustrate everything that they wanted to do and lead to the destruction of evidence, they could go for an ex parte hearing.

In my view—and I have reached this view by the sort of process by which one reaches views in Committee, starting off with one view and moving by circuitous methods sometimes to a rather different view — the decision whether the hearing to permit the entering and searching of a house should be inter partes or ex parte should depend, in principle, not on the sort of person one is or the particular role one plays in society, but on whether the police can convince a magistrate or a judge that someone is a fundamentally unreliable person who would destroy the evidence in some way, as set out in the schedule in paragraphs 13, 14. 15 and 16.

1.45 am

I am not saying that in this contribution to this set of amendments, at this stage of the Committee, at this time in the morning, I am offering the Minister of State an exact solution to the problem, but I think that both sides of the House, in the three debates that we have had, have identified a real danger about the road down which the Government are moving. That is the danger of separating the professionals from the people in terms of the privileges that they have with regard to the confidentiality of the information that they hold.

Whatever stage we have reached in the process, I am convinced of one thing—that we have not got it right yet. I suppose that these clauses are scheduled for about 5 am on Tuesday morning next week, so long as the Prime Minister has not pricked the balloon and announced that we are going to the country and we can forget about the Bill until another Government have a go at it.

I plead with the Government not to feel that it is all over bar the shouting. Much more consultation is needed to get it right. It is much more crucial than the delegations of doctors, priests, bishops and journalists. It is central to equality before the law in our society. That equality should not depend on the accident of the job that one happens to do. I very much hope that in some way it can be done. That way should be to give an inter partes hearing to everybody unless the police can in some way convince the people that we should not have it.

Mr. Tilley

I understand what my hon. Friend is saying about the clause, but does he think that the same principle should apply to those that we have already discussed? Should every member of the public have a right not to divulge material gained in confidence? Surely his egalitarian principles should apply to that as well. He did not mention that on the previous set of amendments.

Mr. Price

In principle, I would say yes, for this reason. The Government have said that for the police to walk in and seize doctors' records, citizens advice bureaux' records or the Samaritans' records would make the practice of that profession so difficult and be such an invasion of privacy that they are willing to exclude them. My constituents have experienced the police walking in and taking — sometimes not because the police knew that they were taking it but because they were scooping up evidence—confidential material, perhaps personal letters with personal information in them.

The invasion of privacy and the fracture of social relations in society is just as great where the police pick up confidential information that belongs to the individual as it is if they pick up confidential information that belongs to a professional such as a doctor, social worker or priest. That is why I hope that between Committee and Report, although there is not much time, we shall think about the privileges that we give to the ordinary person.

The Government have bowed to professional pressure, which is right. They have made the correct decision in the concessions that they have given to the professions. However, they must think very much harder over the next week about equal privileges and redressing the balance by giving ordinary people privileges in matters that are confidential to them. I cannot see why we should legislate different rules for different people.

Mr. Lawrence

I wish to make two points, one that ends in a question and the other that ends in a suggestion.

The hon. Member for Lewisham, West (Mr. Price) waxed long and eloquent about journalists not getting special privileges, and said that if they did have them' hey should not claim them. Certainly they should not claim or have the privilege of being immune to the consequences of being party to a crime.

In the legal privilege section of new clause 4, subsection (4) provides: Documents or articles held with the intention of furthering a criminal purpose are not items subject to legal privilege. Why should the journalist be privileged and immune from any of the consequences of those communications being the subject of crime?

In the Contempt of Court Act, section 10 provides: No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which he is responsible, unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime. The journalist cannot seek immunity on the basis that the source of his information is not protected, if the information concerns disorder or crime. In the particular privilege and immunity claimed here by journalists, and given here to journalists by the Government, they are given complete immunity from the consequences of that material being concerned with a criminal act. Why?

My suggestion also arises out of section 10 of the Contempt of Court Act. There have been many arguments about the definition of journalistic material. Shrewdly, the Government avoided all such arguments in the Contempt of Court Act because no reference is made anywhere to journalism or being a journalist. The section that protects the sources of information is section 10. My suggestion, therefore, is that if the Government wish to avoid the criticism that has been levelled against the formulation of the phrase "journalistic material" and journalism, subsection (1)(c) of new clause 3 should read: Any document or record which a person holds in confidence and which forms or may form the basis of a publication for which he is responsible. I put that to my hon. and learned Friend in the hope that it may be considered and that time might be saved in the other place.

Mr. Andrew F. Bennett

First, I want to raise a general point on the new clauses, to remind the House that probably our most important privilege is that of living in a law-abiding society. It is important to remember that, and that it is the duty of any individual to do all that he can to co-operate with the police. In talking about these so-called privileges, we should remember that it is a privilege not to divulge information to assist the police when another reason is considered to be more important at the time. For a legal adviser, the important thing is to ensure that an individual gets a fair trial. That may be more important than divulging certain information. Again, there is the problem for the doctor, that patients may fail to give him essential information if they do not believe that it is confidential. All those individuals who receive information have a duty to try to pass it on to ensure that crime is cleared up as quickly and as efficiently as possible. So we are talking about the minority of cases where that will not be possible because of another problem. We must get that matter into perspective.

I come to new clause 8 and amendments (a) and (b) to it standing in my name. I hope that when the Minister winds up he will answer some of the points that I shall raise. New clause 8 says that the police may seek disclosure of evidence held in confidence or evidence consisting of journalistic material, that is, special procedure material, by making an application under the schedule "Special procedural material", and that the special procedure shall also apply to applications for search warrants under other enactments when the application relates to special procedure material. In other words, the clause is a welcome restriction on present Acts of Parliament—for example, the Theft Act, the Official Secrets Act, the Prevention of Terrorism Act and the Forgery Act — which at present allow journalistic material and confidential records held by professional advisers to be the subject of a search warrant granted by a justice of the peace after an ex parte hearing.

However, the new clause seeks to complicate matters quite unnecessarily by providing that, where a search warrant is being applied for under another enactment, the special procedure will apply only to some special procedure material—for instance, documents and other records. The consequences are quite absurd. A police officer wanting to search a lawyer's office, for example, for stolen goods consisting of a title deed and stolen money would have to apply to a justice of the peace under the Theft Act for a warrant covering the stolen cash and to a circuit judge under the special procedure for a warrant covering the stolen title deed, because it is a document or record held in confidence by a professional adviser. Subsection (2)(b) of the new clause forbids the police from the convenience of using the special procedure in such a case to cover both the stolen money and the title deed. That seems absurd.

Let me give another example. If someone makes a search in connection with the eggs of protected birds, a justice of the peace would need to issue the warrant for the stolen eggs, but a circuit judge under the special procedure would have to authorise a search of documents relating to the stolen eggs if those documents were held in confidence by a professional adviser.

I understand that the position is even more absurd for journalistic material. Under the Government's new clauses, journalistic material would be divided into four categories. First, confidential documents and records held for journalistic purposes and not subject to search under other enactments are wholly exempt. Secondly, non-confidential material held for journalistic purposes and not subject to search under any other enactments is covered by the full-scale special procedures.

The third category deals with documents or records, whether confidential or not, held for journalistic purposes and covered by other Acts. That is covered by the lesser special procedure. The fourth category applies to non-documentary material held for journalistic purposes and covered by other Acts. No special procedure applies and a JP can issue a warrant as provided for under other Acts. That is complicated.

2 am

Mr. Mikardo

I cannot work out in which of the four categories falls a a criminal who has been given £100,000 by the Sunday Express to write three pieces and who uses his own material as a basis for writing the articles. Does that person become a journalist? Does the material that he uses fall under the provisions of one of the subsections, and if it does, which one?

Mr. Bennett

I shall not attempt to answer that question. Perhaps the Minister will.

It would be better to have one category covering all the incidences, but at least the amendment goes some way by reducing the number of categories from four to two.

I have tabled a series of amendments to the schedule. At this time of night it would not be helpful if I described the purpose of amendments (a) or (b) in detail because we dealt with them when discussing new clause 2. Amendment (d) is probably the most useful to explain because it takes a slightly different approach from that used in new clause 2.

It is important to consider the whole question of public interest because that must be balanced against the need to disclose. In some circumstances it may not be in the public interest to disclose information. It should be made clear that when applying the new procedure, the interest of the public must be the test. We must decide whether it is in the public interest to maintain the confidence between a doctor and his patient or whether it is more important that a crime is solved by the disclosure of information. The concept of public interest must be firmly in the legislation. I hope that the Minister will view the amendment with sympathy.

Mr. Christopher Price

Amendment (d) does not concentrate on giving any special privileges to any group of pepole, but it deals with the public interest and confidentiality. If it were necessary to divide the Committee on an amendment, amendment (d) would merit serious consideration.

Mr. Bennett

I shall listen with interest to what the Government say.

Why is a new concept introduced — I refer to amendment (f)? Why do the Government want double protection?

Finally, we have been greatly concerned to discourage fishing expeditions. If the Government are serious in insisting that searches are for material about which there is already some information rather merely than in the hope of finding something, they should have no difficulty in accepting amendment (g), which provides that Nothing under paragraph 14 above shall authorise the seizure of any excluded material or any special procedure material except that which is specified in the warrant. That would be a simple safeguard against fishing operations.

I wait with interest to see how many of the amendments the Government will accept.

Mr. Mayhew

I am grateful for the way in which hon. Members have addressed themselves to these issues at this late hour.

It is important to realise that the purpose of providing immunity for certain categories of confidentially held information is to protect the persons on whose behalf the confidentiality is observed. It is not, as the hon. Member for Lewisham, West (Mr. Price) suggested, a matter of protecting people's professional status or class but of having regard to the nature of the confidentiality that they guard.

Just as doctors made it clear that they sought protection not for themselves but for their patients, so the other professional people — those engaged in "any trade, business, profession or other occupation", to use the words of the new clause—hold information that is confidential for the protection of those with whom they have a relationship. In the case of journalists, the relationship is with those who have communicated information to them. In the case of social workers, citizens advice bureau workers and the like, it is with the people who seek their advice. It is important that the Committee recognises the answer to the claims of more than one Opposition Member, and notably the hon. Member for Lewisham, West, that the Government have acceded to the articulated representations of the professional classes and care nothing about people who do not have that kind of clout.

If the inter panes procedure were extended to an application to obtain disclosure of any material held on a confidential basis by any person, that would greatly and unnecessarily extend the burdens upon the courts. I do not believe that the fact that A holds something in confidence for B in a private capacity is sufficient to warrant an inter partes procedure. In my view, that procedure, and certainly the exclusion provisions, are warranted by the need in the public interest to maintain the confidentiality that exists in the relationships that I have described.

I am grateful to my hon. Friend the Member for Beaconsfield (Mr. Smith) for his comments about the moves that we have been able to make to meet the concerns of the accountants. It remains only for me to deal with his points about the circumstances in which the police, through the ex parte procedure, are able to obtain a search warrant in circumstances in which the judge is satisfied that if notice were given the material in question would be likely to be concealed, disposed of or whatever.

I understand what lies behind my hon. Friend's remarks. I confirm what I said in my letter to the organisation that he represents about the guidance that will be given. However, we consider it necessary that this jurisdiction should remain in cases where notice would probably result in the destruction or concealment of evidence. With recognition of the sensitivity of the position, I am sure that the greater part of his misgivings can be overcome.

The hon. Member for Bethnal Green and Bow (Mr. Mikardo) said that about 600 people in his constituency would benefit from the provisions. He should multiply that figure by 10, or even 100, to take account of those whom the 600 represent. Those he mentioned hold confidential information by virtue of their trade or profession. Their clients will benefit from the provisions.

The hon. Gentleman again mentioned the justice of the peace who will, in certain circumstances, have to consider the criteria and issues. But a police officer will have to satisfy a magistrate that the warrant that he seeks should properly be given. I do not believe, and nothing that the Magistrates' Association has said, leads us to suppose that a magistrate would find himself out of his depth in considering the issues. Magistrates will realise that they must be satisfied. If the matter is left in doubt, the burden of satisfying the magistrate will not be discharged. We are dealing with an investigative process. A magistrate will not simply grant a warrant at the request of a police officer.

Mr. Mikardo

I threw a question at the Minister earlier. Does he have any information about what percentage of applications for warrants are granted?

Mr. Mayhew

I cannot give an exact answer, but the first volume of the Royal Commission's report gives a table showing that a higher proportion of cases result in material being discovered where searches have been authorised by magistrates than for any other category set out in the table. That suggests that magistrates do not lightly grant warrants. It suggests that they do their job properly because the results are, by a small margin, better than where searches are authorised by others.

I should have intervened earlier in the speech of the hon. Member for Lambeth, Central (Mr. Tilley), who was concerned about the fact that journalistic material that may have been acquired for confidential purposes will lose its exception if it is passed from a stringer to the central newspaper office. That is not the case. The information does not have to be held continuously by the same person — it is protected, no matter at how many removes, provided that it is continuously held by somebody for confidential purposes. I can allay completely that part of his anxiety.

2.15 am
Mr. Snape

Perhaps the hon. and learned Gentleman can allay one of our other anxieties. He has said that information will remain protected if it is passed from one journalist to another, but will it remain protected if it is passed from a journalist to the secretary of another journalist and retained by the secretary because the other journalist is out of the office?

Mr. Mayhew

The same protection applies because the information is being held for journalistic puposes. That is why the protection is not tied to a journalist. The protection is keyed in to the purpose, and if the information is held for a journalistic purpose, that is sufficient.

Mr. Tilley

The hon. and learned Gentleman will recollect that I was concerned principally with the definition of "journalistic purpose". I understand the pitfalls in defining a journalist and I admit that the Government have avoided them. I argued that "journalistic purpose" could be used by a wide range of people other than those whom we would in common sense consider to be professional journalists.

Mr. Mayhew

So be it. It is important that confidentiality in journalism should be protected. It would be wrong to isolate that protection to the benefit of those who are professional journalists. We believe that to be right. Whether that protection is attracted will be a matter of fact to be determined in each case.

I can now tell the hon. Member for Bethnal Green and Bow that he will find the table to which I referred on page 129 in the first volume of the Royal Commission's report.

The hon. Member for Lewisham, West said that he was content with articles 13 to 16 in the new schedule which provide for the ex-parte procedure where it is thought that destruction or concealment would result. The hon. Gentleman was saying, in effect, that this is one more for the professionals. I think that I have already dealt with that assertion. It is a misconception. The important factor is not the sort of person that an individual is but the sort of confidentiality that he guards. In the Government's view there are certain sorts of confidentiality which warrant special protection. Those include the confidential relationships and the material that is used in pursuance of confidential relationships that are described in the new clause. That is a logical and sustainable distinction. I have come to realise that almost any legislative proposal can be dressed up in terms of class distinction if we put our minds to so doing. However, the new clause is not an illustration of that.

Mr. Eldon Griffiths

It is the convention of journalism that information is sent by telex from one office to another. When the information chatters in on the machine, it can be seen by a wide range of people who wander in and out of the office, whether they be tea ladies or casual visitors. That is privileged information and it would be a peculiar situation if anyone wandering into the office could read it when the police were denied access to it. That is my first question. It is realistic.

My second question arises from a specific case—two men go to a party at which a rather notorious American visitor is present. He is rather drunk and babbles. He gives information as to the whereabouts of a wanted murderer. One of the two men at the party is a journalist and the other happens to be a carpenter. As the Bill stands, the journalist could write a note in his notebook and it would become confidential matter saved by the Bill from being pursued by the police. If the carpenter put the information down in his diary it could and would, I hope, be sought by the police. They would get a court order for it. Once again, one has the absurd circumstances of two men hearing the same information and writing it down in two different books. The police can get at it in the case of one man and not in the other.

Mr. Mayhew

I do not believe that that is absurd provided that one accepts that it is the nature of the confidential relationship that has to be considered.

In the one case there would be a confidential relationship and in the other there would be none. There would be no confidential relationship in the case of the carpenter. The journalist would have a journalistic purpose if he wished to use the information for the purposes of journalism.

If one believes—I acknowledge that this lies at the root of this particular group of new clauses—that it is important in the general good to maintain confidentiality within journalism, I cannot see that there is anything to be regarded as absurd in protection being attracted by a journalist in the circumstances that my hon. Friend posits while no confidentiality is attracted by the carpenter. I do not see that the public interest is engaged in protecting the information that the carpenter happened to write down. That rests upon an understanding of the basis of this part of the Bill.

Mr. Christopher Price

I wish to put a general point about the distinction the Minister was drawing between the professionals and the public. Supposing that a constituent of mine had correspondence with a friend who was in no way a professional that contained confidential information perhaps about extra-marital relationships that he had had over a number of years and about a number of diseases of a social kind that he had had and about which he would not like other people to know, would that constitute information gathered in confidence?

Mr. Mayhew

I am sorry, but the first part of the hon. Gentleman's interesting scenario escaped me. The point is probably dealt with by my reminding him that the protection is related to material that is acquired or created in the course of any trade, business or other occupation.

Mr. Hattersley

I did not want to pursue the Minister on this point, not least because I, too, have an interest to declare as a member of the National Union of Journalists and a working journalist, but the answer that he gave to his hon. Friend the Member for Bury St. Edmunds (Mr. Griffiths) seems to exemplify the extraordinary complication inherent in creating a special class of person.

The journalist and the carpenter are both at this rather extraordinary party of journalists, carpenters and visiting American criminals where one of the visiting American criminals divulges the whereabouts of another of his kind, and if the carpenter writes the information down the material is seizable, but if the journalist writes it down, the hon. Member for Bury St. Edmunds says that the material is protected. Will the Minister confirm that the material is protected only if the jounalist wrote it down in his capacity as a journalist? If he wrote it down in some other capacity as someone who was inclined to write down pieces of ill-considered information because he was curious as to the whereabouts of American criminals, he would not be protected.

A test will be that a journalist will be acting as a journalist by profession when he obtains information which might in other contexts be seizable. I make the point in an attempt to demonstrate the pitfalls in creating a special class of person. Journalists who I know, and I include myself as a journalist, find it difficult to distinguish between the information they note for professional purposes and the information that is given to them in another capacity. How will the courts distinguish between journalists acting as journalists and journalists acting as private citizens?

Sir Albert Costain (Folkestone and Hythe)


The Chairman

Order. We cannot have an intervention within an intervention.

Mr. Mayhew

Material attracts protection by new clause 6, if it is created or acquired for the purposes of journalism.

I think we are chasing our own tails on this point. Material of this type would not be accessible under the existing law. Something written down would not be admissible in evidence as it would not constitute evidence.

If we acknowledge that journalism should attract a degree of protection for its confidentiality, a line must be drawn but not as a precise attempt to define "journalism" or "journalist". The way in which the clause is constructed shows how we must tackle the problem. It is possible with adequate ingenuity—and there is plenty of that in the House—to construct scenarios of babbling Americans at drunken parties with obsessive carpenters or walrusses, at which entertaining conundrums can be constructed.

Sir Albert Costain

What happens when a carpenter writes in a woodwork journal and becomes a journalist?

Mr. Mayhew

There will be many interesting opportunities to develop thoughts like that.

In answer to a question raised by my hon. and learned Friend the Member for Burton (Mr. Lawrence), the qualification for information held in furtherance of a criminal purpose relates to legally privileged material but not in respect of the new types of excluded material. This is because the qualification was already in the Bill as it has long been part of the well-established and understood definition of legally privileged material. If it is held in furtherance of a criminal purpose, privilege is not attracted. Its absence in other cases will not, as I have already attempted to explain, make any substantial difference. Where people are engaged in criminal activities, they will be liable to arrest for the offences and to search in right of that offence. In this context, the formula in section 10 of the Contempt of Court Act 1981 is not as relevant as my hon. and learned Friend the Member for Burton thought it was. It follows that no useful purpose is served by applying the qualification to the new categories.

In so far as one purpose was to try to clarify their position under the Bill, that purpose would not have been served by stimulating fresh, unwarranted, fears. I emphasise that the drafting does not make legal material worse or better off. It is simply that the traditionally understood position there necessitated a different formulation. However, it is desirable to exclude from the obligations of a circuit judge in those circumstances the question whether something is held for a criminal purpose. That may involve very protracted arguments that may have a bearing on subsequent criminal proceedings. Therefore, if it is not necessary to import that, it should not be imported.

2.30 am

The hon. Member for Stockport, North (Mr. Bennett) fairly said that amendments (a) (b) and, I believe, (c) and, I believe, (c) to the new schedule had already been dealt with. Amendment (d) to the new schedule would elaborate the public interest test contained in subsection (5) of the schedule. It would not in any way assist the judge in applying this test. The amendment would require him to have regard to any duty of confidentiality under which the evidence in question is held. However, it adds nothing, because the schedule is all about confidentiality. In applying the public interest test, the judge is inevitably weighing considerations of confidentiality.

The hon. Member for Stockport, North invited us to consider amendment (f) in particular. It would prevent the judge from issuing a search warrant where he was satisfied that the giving of notice of an application for an order for its production was likely to result in its concealment, destruction, alteration or disposal. The amendments would, of course, defeat the whole purpose of the provision in those rare cases where the police were dealing with a professional adviser who was, himself, dishonest. I much prefer the arguments of the hon. Member for Lewisham, West in that regard.

Amendment (g) would exempt from seizure all excluded material and all special procedure material other than that specified in a warrant. This has been described as a necessary and logical consequence of the protection afforded to such material by the Government's new clauses, but it would lead to very perverse results. Excluded and special procedure material enjoy no exemption whatsoever from seizure under the present law, and the Bill confers no new powers on the police in that respect. On the contrary, clause 14 restricts present powers through its provision that seizure may not take place unless there are reasonable grounds to believe that the evidence would otherwise be disposed of.

Through new clauses 2 to 8, the Bill significantly reduces the likelihood that premises containing excluded or special procedure material will ever be searched. The reason is that material in documentary form which would at present be liable to search and seizure will attract the safeguards of the special procedure, and thus will generally be obtainable only by means of a production order. Production orders do not, of course, empower the police to search.

I am afraid that I cannot recommend that the Committee should accept amendment (g). If hon. Members have had the stamina and dedication to listen to my explanations, they will probably accede to my wish to that none of the amendments should be accepted.

Mr. Bob Cryer (Keighley)

I shall be brief. I do not want to delay the Committee, because I know that it has examined the matter in some detail. I have not taken part in the debate so far, but I listened carefully to the Minister. I was less than satisfied with the reasons that he gave for rejecting amendment (d), tabled by my hon. Friend for Stockport, North (Mr. Bennett). We must spell out why we are protecting the confidentiality of journalists.

Although the Minister said that the schedule referred to the public interest and that the judge would accept that as a relevant factor, we must stress not only to judges, but to the rest of the community that public interest is involved. There is a very narrow line between protecting the narrow sectional interests of the press and the interests of journalists who are trying to provide the public—who have a right to know—with information. I favour the protection of journalists who are told to get a story or information by a proprietor and, if they do not, are subject to the threat of dismissal. By carrying out their occupation, journalists can be put under a threat when the police want disclosure of the information that they have obtained perfectly legitimately on the instruction of the proprietor.

There seems to be a distinction between that proper attitude and a press proprietor who wants to obtain information simply to boost circulation figures and beat a rival. That has nothing to do with the public interest. We recently had a classic example of a criminal case when newspaper investigations gave not a jot for the public interest. Indeed, they harmed the public interest. I refer, of course, to the Sutcliffe, or Yorkshire Ripper, case.

Relatives of the victims who had been killed so tragically and relatives of the killer alike could not move because there were queues of journalists offering them money for information about the case. It is conceivable that information could have been bought and retained by the proprietor because that could give him a circulation advantage over another paper, when it should have been disclosed for the investigation and conviction of a man who was much feared in Yorkshire where he caused such terrible tragedies.

There is a distinction between a mass-circulation tabloid pursuing a story and a small circulation journal such as the New Statesman or Time Out. Their circulations are so small as not to be an important factor compared with what The Sun, Daily Mirror or Daily Star, dipping though that part of the Matthews empire must be.

We should recognise that there is a legitimate area of practice in which a journalist should be able to use information that has been given to him in confidence. We should distinguish between that and the other practices to which I have referred. There is no harm in telling the judges who implement the legislation that, when they make their assessments, they should bear in mind the duty of confidentiality and the public interest of a free and full reporting of events.

The interests of the proprietors often blur our press. We talk of a free press in Britain, but we have none. It is owned by a tiny group of people who are politically motivated, mostly in favour of the Conservative party. Perhaps the Government are more concerned with the proprietors than the employees in the press and they do not want, in the approach to a general election, to cause any ripples of dissension among the proprietors so that our free press will continue to use 99 per cent. of its space to attack the Labour party and speak in favour of the Conservative party.

Mr. Mikardo

The Government have another motive for mollifying the proprietors. Many of them are in the House of Lords, and the Government want to get the Bill through the other place.

Mr. Cryer

My hon. Friend is right. A number are there because the Prime Minister sent them there. Several editors—for example, Sir David English—played an undistinguished part in the Ripper case. That will help smooth the Bill's passage through the House of Lords.

In spite of the fact that these newspapers are in the hands of a tightly knit group of politically motivated people, they from time to time carry out important journalistic investigations, and we recognise that contribution. I doubt whether that accusation can be made against The Sun, which is probably the worst newspaper in the world, but from time to time the other newspapers make a serious effort.

That is where my hon. Friend's amendment would be relevant. When a newspaper made a serious effort in the public interest, and if information was held by a journalist on the basis of confidentiality to be published subsequently in the public interest, that should be taken into account by the judge.

If we repeat something already contained in the new schedule, which is what the Minister claims, it can do no harm. But if there is a scintilla of doubt and the amendment removes it, thus ensuring that judges, who from time to time have some extraordinary ways of interpreting our legislation, take such matters into account, it will be of benefit. The Minister has given no good grounds for opposing amendment (d).

Given the confused situation in which the Government have produced highly complicated legislation, it would be of benefit to give such protection to items of the public interest. I am sure that the Government recognise the distinction that I am drawing between items of the public interest and items of private circulation interest which proprietors frequently have in mind. The amendment will help a judge to make that distinction. I therefore hope that my hon. Friend, in view of the Government's lacklustre response, will divide the Committee. Although it is not my wont to vote in the early hours of the morning, on this occasion I am prepared to go into the Lobby with him.

Mr. Andrew F. Bennett

I was disappointed with the Minister's reply to my amendments (a) and (b) to new clause 8 as they have not been dealt with before, but I realise that there were many points to which he had to reply. It would not be particularly useful to vote on those amendments, but I hope that when amendment No. 153 is proposed, it will be possible to vote on amendments (d) and (g).

The Chairman

When we reach that point I shall ask the hon. Gentleman to move those amendments formally.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

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