HC Deb 15 May 1984 vol 60 cc266-72

Amendment made: No. 33, in page 10, leave out line 22.—[Mr. Hurd.]

Mr. Maclennan

I beg to move Amendment No. 34, in page 10, line 30, leave out from beginning to end of line 8 on page 11.

Mr. Deputy Speaker

It will be convenient to discuss at the same time the following:

Amendment No. 38, in page 10, line 16, at end insert— '( ) for items subject to legal privilege; or'. Government amendment No. 271.

Amendment No. 39, in page 12, leave out line 16.

Mr. Maclennan

I do not propose to rehearse the arguments at great length on this important series of amendments and on the question whether there should be a separate category of journalistic material, because the arguments were canvassed at length in Committee, where they were eloquently argued on behalf of the journalists, who seemed at least in some cases, to be having second thoughts about the desirability of this category of exclusion.

The Minister, when replying to the debate in Standing Committee, was not firm in his view of what was the appropriate response to the representations that had been received, particularly from the Newspaper Society and the British Guild of Newspaper Editors. The Parliamentary Under-Secretary said that his right hon. Friend the Minister of State remains ready to give further consideration to that point. It must clearly be understood that the effect of removing 'journalistic material' from 'excluded material' in Clause 10, and including it as merely 'special procedure material' in Clause 14, would materially weaken the protection for journalists" — [Official Report, Standing Committee E; 19 January 1984, c. 610.] He added that there would be plenty of time during the passage of the Bill through both Houses for the matter to be given further consideration.

I am now seeking to give the Government the opportunity to say what further representations they have received and what further consideration they have given to the matter. The arguments are finely balanced, but there is no doubt that the Newspaper Society retains its view about a separate category of journalistic material; it does not want a special category status for journalists and would prefer to retain the status quo.

It could reasonably be argued that if there is to be a special category, others should be brought within it and that the clause should be amended to include, for example, such a category as material for publication. It could be argued that academic researchers and authors of books are not in a greatly different position, nor should they be, from journalists.

These arguments were argued in Committee. I understand that the Newspaper Society remains firmly of the view which it expressed prior to the Committee's deliberations and that it has written to my hon. and learned Friend the Member for Montgomery (Mr. Carlile) and other members of the Standing Committee reiterating its view. The Government should say what, if any, decision they have reached in the light of those further representations.

Mr. Corbett

I will not detain the House. It is, however, a pity that this issue should have come before us at this hour. I congratulate the Home Secretary for sparing a few moments to be with us, though I do not anticipate that he will stay for more than a few minutes, and will certainly not see the debate out. He treated the Committee upstairs, and the House during these proceedings, with what I can only regard as gross contempt, especially on a Bill of this importance. I say that with some sadness. On reflection, he may wish to examine his attendance record during these proceedings. This is a Government Bill, and it is up to the Government to staff their own Front Bench.

If I were to say that I would offer a prize to any hon. Member who would give me the author of the quotation that I am about to read, I would probably be ruled out of order. I will not do that, therefore, but I will read the quote: A free society and a free media are inseparable." —[Official Report, Standing Committee E, 19 January 1984; c. 602.] That was said by someone for whom Conservative Members no doubt have great respect, and in whom they have confidence. It was said in 1984 by the Prime Minister. It is a pity that that sentiment has not been imported into the Bill, in spite of the discussions that took place in Committee.

I shall not weary the House by rehearsing all the argument in detail, save to say that the last Royal Commission on the press in 1977, and most of the representative bodies of those concerned with the media subsequently, have said clearly that they want no more or no less protection in doing their job than the ordinary citizen. That is the case in a nutshell. I could quote extensively from the Royal Commission, but I will not, except to say that at page 185 in paragraph 19.8 it says: we believe that, as a general rule, the press should stand before the law on the same footing as other institutions and all citizens. That is the case in a nutshell against the provisions in the clause.

The hon. Member for Caithness and Sutherland (Mr. Maclellan) referred to representations from the Newspaper Society, and it adheres to that point of view. I accept that the Government responded to arguments of the Opposition in Committee that there had been a change of view by the organisations representing various parts of the media. At that stage, there was almost unanimous agreement in the media that it did not want the provisions that the Government had written into the Bill. The Minister of State smiles. I hope that he will listen to what I say. At the time that I said that, it had been put to me—and I accepted this, and I hope that the Minister will accept it —that there had been a change of mind, and there was near unanimity at that date that the media did not want the provisions of the Bill. Subsequently, the Minister and I know that various organisations changed their mind yet again. It is like trying to catch a moonbeam. Much to its discredit, my own union, the National Union of Journalists, changed its mind, and snatched at the provisions that the Government had written into the revised version of the Bill. Behind the concern of those in press and broadcasting was the fact that, if they acquiesced to what the Government were proposing in the mark two version of the Police and Criminal Evidence Bill, it would set them along the road to a legal definition of a journalist. That was the fear, and journalists want nothing to do with that. In a sense, the cat has leapt out of the bag, and it is biting anybody who will walk by it.

Government amendment No. 271 invites the House to decide who is a journalist. By the back door—and this is the disgrace of it—it defines for all practical purposes who is a journalist. It does that by the back door, in the dark, and in a blinkered manner. It says: A person who receives material. This might be a letter that turns up on a journalist's desk. I hope that no one sends a letter to The Guardian, because it will send it back post haste and drop someone in the soup in the process. A journalist who opens the mail on his desk in the morning has received that material, and the definition in amendment No. 271 is part of the Government's description of a journalist. The amendment states: A person who receives material from someone who intends that the recipient shall use it for the purposes of journalism". That includes material that is sent to someone who is on a newspaper, on television or in radio. This is material that has not been solicited or invited. It is a Sarah Tisdall type of communication that is sent anonymously because someone believes that the media should know what is going on. The key and chilling words of the amendment are as follows: is taken to have acquired it for those purposes. If the Minister wants to tell me that I have misunderstood the amendment, I shall be delighted to allow him to intervene, but if the Queen's English means any thing—one has reason to read something three times if it emanates from the Home Department—the amendment has the meaning that I have described. It is stating that anyone in the occupation and trade of journalism will be clobbered if he receives material in an unsolicited fashion which the sender intends to be used for the purposes of journalism.

This is the nearest that the Government have come to introducing a backdoor definition of a journalist. There was near unanimity in Committee in accepting that the Government, for understandable reasons, did not want to get anywhere near defining a journalist in the Bill. They shied away from doing so for reasons which we all understood. Many different interpretations were put upon the Government's reluctance to produce such a definition, but we all understood their reasons.

The Government said in Committee that they would leave it to the courts to decide whether the material was journalistic. However, amendment No. 271—a sneaky Government amendment — offers a definition of a journalist round the back door. I do not blame the Government for using the back door because I accept that they could not use the front door. If the front door were used, we would be intruding on the freedom of the press, and the occupants of the Government Front Bench see themselves as great champions of that. My interpretation is the only one that can be put upon the amendment. It is intended to be a catch-all provision. These issues were argued in Committee and it was acknowledged by the Parliamentary Under-Secretary of State that in certain circumstances anyone could be regarded as a journalist under the relevant provisions of the Bill. That is why the Government did not want to try to define a journalist. To offer the House the definition that appears in the amendment at this stage and at this hour is frightening and chilling. The Government will regret having opened this Pandora's box.

Mr. Brittan

The hon. Member for Birmingham, Erdington (Mr. Corbett) has used strong language, including the word "chilling". Those who were not members of the Committee that discussed the Bill could be forgiven for not appreciating that the amendment seeks to provide an extra protection, in the form of an exemption, from the powers of search. The hon. Gentleman's language was less than fair to my predecessor, Lord Whitelaw, as he now is, who, in introducing the provisions which are now being challenged, sought to meet the understandable and legitimate expressions of anxiety which were put to him by the journalistic profession.

12.30 am

There was a long history behind that. What my right hon. and noble Friend faced was a situation in which, understandably, for many years journalists had regarded themselves as the custodians of information which was given to them in confidence, and they regarded their obligation to respect that confidence and not to disclose the information which had been so imparted to them as a matter of high journalistic importance and ethics. Indeed, journalists have been prepared to go to prison rather than yield up information. Of course, there were other people in other professions who similarly felt that their material should be protected and that it ought in no circumstances to be subject to the requirements of search.

It was because of the strong representations that were made that the requirements of the Bill were changed and the provision of a total exclusion for journalistic material that had been obtained in confidence was introduced. That was done in response to extremely strong representations by the journalistic profession.

It is important to say that it would not have been right for my right hon. and noble Friend to agree to those representations only because of their strength or even because of their then unanimity. He did so because he and the House were persuaded that it was right to do so and that there were special considerations which made it understandable that journalists should be protected from the disclosure of their sources or from yielding up information that had reached them in confidence.

Amendment No. 271 does not achieve any of the sinister purposes which the hon. Member for Erdington claims. It deals with a gap that became apparent during the debate in Standing Committee. The problem was whether material was protected as being held for the purposes of journalism if it was acquired in an unsolicited form. The feeling was that if there was to be such protection, that protection should be afforded to unsolicited material as well. Because unsolicited material is by definition not acquired or created for any purpose related to journalism or otherwise, it was necessary to deal with that situation by means of amendment No. 271, which simply fills a small but important gap and does not have any of the sinister purposes to which the hon. Gentleman referred.

The question then arises whether, as the hon. Member for Caithness and Sutherland (Mr. Maclennan) asked, there has been a material change in circumstances which would lead the House to take the view that it was not appropriate to confer upon journalists the very special treatment of exemption and exclusion from search which had been provided by Lord Whitelaw. The principal argument put forward is twofold. It is said, first, that journalists no longer want it and, secondly, that on reflection the reason why they do not want it is that the reference to journalistic material implies a definition of journalists which is the thin end of the wedge and a dangerous position to be in, because once journalists are defined and have privileges extended to them, that definition might be used for the purpose of licensing them or for interference of some other kind.

As to the views of the profession, as has been said candidly by the hon. Member for Erdington, there is no unanimity on this matter. It is true that many important bodies which previously asked for and were in favour of the provisions introduced by my right hon. and noble Friend have changed their mind, as they are entitled to do. As the hon. Gentleman pointed out, some have changed their minds more than once. There remains a division of opinion. Apart from those who have urged that the protection that was provided should now be removed, contrary advice is given by such bodies as the Press Council, the Institute of Journalists and the Guild of British Newspaper Editors. I do not think one can say that there is a new consensus, which has changed from the view that was put before my right hon. and noble Friend.

We have to consider the merits of the argument. I am not persuaded that the merits of the argument put by the journalistic profession and accepted by my right hon. and noble Friend have substantially changed. I detect nowhere in that profession a readiness to abandon the desire to protect sources and not to disclose information imparted in confidence.

One is faced with a number of general expressions of preference for journalists not to be singled out by the law. In the light of history, such protestations carry as much weight as those who make them wish them to carry only if they are accompanied by a positive statement of a readiness to comply with the law's provisions, and a readiness to yield up material imparted in confidence if, in the absence of any special protection, the ordinary processes of the law require such yielding up.

I should have been surprised to hear of that readiness. I should not have expected it. I have not heard it. Therefore, the Government must face the fact that those who ask for such a concession to be taken back, and that the ordinary law should apply, are really saying not that they will comply with the law, but that they will take their chance with it; if the law requires the yielding up of material imparted in confidence they reserve the right to make martyrs of themselves.

That is not a proper basis for legislation. Journalists have a special position. We do not want them to have to become martyrs from-time to time because the ordinary law does not comply with their conscience. For that reason, it is preferable, in the absence of further argument and consensus, to stick to the provisions inserted at the request of the profession.

A further argument carries even more weight. Even if one respects anxieties expressed by the journalistic profession now about the definition of journalism and believes those anxieties to be justified—in a way which I certainly find difficult to accept—the suggestion that the provision should be withdrawn would amount to a gigantic "own goal". I shall explain why.

The House will recall that the protection provided for journalism is provided not for those defined as journalists, but to material which has been assembled for journalistic purposes. That could include anybody, from the part-time housewife who is cookery correspondent for the local newspaper, to someone who writes something on a one-off basis for journalistic purposes.

If that protection is withdrawn, two situations in relation to material will occur. One can go to a magistrate or to a circuit judge. When does the special procedure arise? There can be no doubt that journalists would wish to avail themselves of the protection of the special procedure wherever possible.

The special procedure provisions say that two requirements must be met. The first is that the material has to have been held subject to an express or implied undertaking to hold it in confidence. That is to be found in clause 14 (2) (b), but the second requirement for the special procedure to operate is that the material must have been acquired or created…in the course of any trade, business, profession or other occupation or for the purpose of any paid or unpaid office held by him". That is in clause 14 (2) (a).

That provision is for the convenience of professional people such as doctors and social workers, who have no objection to disclosing who or what they are. If the journalists were to avail themselves of that provision they would have to show and prove that they were members of a particular profession—journalism. The position is paradoxical. If one abolished the provision introduced by my right hon. Friend there would then be, in effect, a requirement of definition and proof of whether someone was or was not a journalist.

Quite apart from any consideration of whether a new consensus has emerged, properly construed the Bill without my right hon. Friend's provisions would be worse—from the point of view of the definition of journalism—than with them.

For all those reasons, I should not at this stage—although I am always ready to hear further views—commend any change to the Bill other than the amendment in my name.

Mr. Maclennan

Members of the profession of journalism will read the Secretary of State's words with great interest, particularly as he has said that he is still open to further representations. No doubt if the profession puts its act in order in a more coherent way than it has done so far, further representations may be made which may sway the Secretary of State's mind in other directions.

I am not disposed to press the amendment to a Division, in the light of the Minister's extensive remarks, which, I gather, were heralded to the Lobby and have been awaited with great interest by the journalists whose stamina at this late hour is perhaps not as great as that of some hon. Members.

I thank the Minister for discussing the arguments with such care. His views will need to be studied with equal care before deciding whether it would be appropriate to refer to this issue in another place. I beg to ask leave to withdraw the amendment.

Amendment by leave withdrawn.

Mr. Deputy Speaker (Mr. Paul Dean)

With the agreement of the House, I shall now put, page by page, the Government amendments already discussed.

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