§ 3.55 p.m.
§ Report of Amendments received (according to Order).
§ THE LORD CHANCELLOR (LORD GARDINER)
My Lords, I think I ought to point out to your Lordships that Amendment No. 1 pre-empts Amendment No. 2. If, therefore, Amendment No. 1 is carried, Amendment No. 2 cannot be moved.
§ Clause 5:
§ Prohibition of acts relating to matter broadcast from ships, aircraft, etc.
5.—(1) A person who does any of the acts mentioned in subsection (3) below, and, if any intent or circumstances is or are specified in relation to the act, does it with that intent or in those circumstances, shall be guilty of an offence if—
(a) he does the act in the United Kingdom or external waters or in a ship registered in the United Kingdom, the Isle of Man or any of the Channel Islands or an aircraft so registered while the ship or aircraft is elsewhere than in or over the United Kingdom or external waters; or
(3) The acts, and, where relevant, the intent and circumstances, referred to in subsection (1) above are the following namely:—
(f) publishing any advertisement relating to a station from which broadcasts are made as aforesaid or are to be so made or the times at which any broadcasts are to be so made.
§ (5) For the purposes of this section advertising by means of a broadcast shall be deemed to take place as well wherever the broadcast is received as where it is made.
§ VISCOUNT COLVILLE OF CULROSS moved, in subsection (3)(f), to leave out from the first "made" to the end of the subsection. The noble Viscount said: My Lords, my noble friend Lord Drumalbyn and I have put down two alternative methods of dealing with the problem that arises under Clause 5(3)(f).
§ LORD SORENSEN
My Lords, may I suggest to the noble Viscount—he may have been about to suggest it himself—that we might take the first five Amendments together. If it is more convenient to the House and to him, I shall be pleased to do so.
VISCOUNT COLVILLE OF CULROSS
My Lords, I am obliged to the noble Lord. He in fact took the words out of my mouth. It seemed to my noble friends and myself that this was a matter that certainly ought to be discussed again. Your Lordships may recall the brief debate that took place on the Committee stage. On that occasion the noble Lord, Lord Sorensen, expressed himself as being concerned about this particular point; and he also—and this I was extremely glad to hear—appreciated that this is intended to be a constructive move on the part of my noble friend and myself. He went so far as to say that the wording on that occasion—it was dealt with by my noble friend Lord Denham—might have some merit. In those circumstances, I should have expected the Government to put down an Amendment on the Report stage. They have not done so, but I do not suppose there is anything sinister in that.
31 The problem was set out before, and it is simply this. As the Bill stands at the moment it deals with advertisements relating to a pirate radio station. Although to the outward eye, when one first looks at the Bill, there is nothing of great significance in the word "advertisement", and it might be expected to be the ordinary sort of advertisement, it became quite clear at an early stage in another place that the Government intended the word to have a rather wider usage. That being so, it has been the view of my noble friend and myself ever since that we ought to try to be more specific about what exactly is meant, and that the drafting of the Bill ought more accurately to reflect what the Government had in mind.
The difficulty is this. I understand that certain items which might ordinarily be thought to be editorial comment of one sort or another may be considered to be offensive within the terms of this subsection; and, of course, as a result prosecutions may follow. It is quite true that they would take place only at the instance of the legal authorities, the Attorney General and his opposite numbers in Scotland and Northern Ireland. But, nevertheless, it must be clear that the Press want to know what they can safely publish and what they cannot. I think it is incumbent upon the Government to say a little more about the situation on this point than has been previously said at any rate in this House. I shall leave my noble friend Lord Drumalbyn to deal with his own suggestion, and perhaps he can say—I think it goes a little further than mine—to what extent that is so.
So far as my own two Amendments, Nos. 1 and 4, are concerned, they are intended—and I hope they are not too obscurely drafted—to pick upon the point about details and times of the broadcasts, and to include that as part of the meaning of "advertisement", so it will be caught by the penal clauses of the Bill; and also to specify rather more carefully what sort of editorial comment shall be an offence. I have done my best to take the words used in the Committee stage by the right honourable gentleman the Postmaster General and have put them in what seemed to me, at any rate, to be perhaps a not wholly inappropriate legis- 32 lative form. If they are accepted, then I think we may know where we are. Otherwise—and this was the point Lord Denham made in Committee—the only possible result will be that there will have to be test cases before anybody is sure.
It cannot be desirable that, in a matter of what I believe to be considerable public interest, the Press will not know where it stands until a criminal prosecution has been brought, either successfully or unsuccessfully, possibly after an appeal to a higher court, taking, it may be, six or seven months. In the mean-while, no doubt the public will want to know whether this Bill has been successful or not. Supposing it is not successful, and supposing certain radio stations still continue to broadcast. I am not saying that I advocate it, but supposing it is the case. Will the Press be able to say so or will it be caught? This is the sort of practical problem that will arise, and if we do not change the wording in subsection (3)(f) I think there will be very great uncertainty indeed.
I shall be extremely interested to hear what the noble Lord, Lord Sorensen, has to say about this. I hope he will have had an opportunity now fully to consider this point and that he will be able to give some view on which, if either, of our wordings is correct. Possibly he may be able to make some suggestions himself, since we still have the opportunity to amend the Bill at the Third Reading stage. I beg to move.
Page 5, line 34, leave out from ("made") to end of line 35.—(Viscount Colville of Culross.)
§ LORD DRUMALBYN
My Lords, as we are discussing all these Amendments together it may be convenient for me to indicate the lines along which my mind worked in putting down' these Amendments. There is, I believe, no statutory definition of an "advertisement" in general, although there are many interpretations for the particular purposes of different Acts. "Advertisement", therefore, is rather like the elephant: you know what it is, but you cannot describe it. However, it may be of interest to your Lordships to know that there is one definition which has been given a good deal of currency and 33 I think is regarded as being up to date. The 1964 edition of the Encyclopædia Britannica says:An advertisement is a form of paid public announcement intended to promote the sale of a commodity or service; to advance an idea or bring about some other effect desired by the advertiser.I notice that in another place the Minister said that an advertisement need not be paid for. In a sense, that is true—but only in one sense: only if the publisher himself has a direct interest. In that event he in fact becomes the advertiser. So he is then in the same position as the person who erects an advertisement in his own garden. He is not paying for it, but there is a value attaching to it.
The way in which the Government appear to have proceeded is to leave the whole matter vague, in the hope that people will all be very careful what they say. I think I ought to warn the Government—and I have not an interest to declare, because although I have to deal with advertising I have no financial interest in it. In fact, it was the Press Council who asked me to interest myself in this matter, and I think I ought to warn the Government that it is most unlikely that the Press, with its strong tradition of complete freedom of expression and conduct, would be likely to feel in any way bound by what they said or reported in the way of news, editorial comment, and the like. In fact, if it is left vague they may do exactly the opposite, and they may be inclined to be provoked into giving rather more attention than they would otherwise do to the very matters to which the Government would not like undue publicity to be given.
The points I had in mind were the following. Paragraph (f) of Clause 5(3) refers to:publishing any advertisement relating to a station from which broadcasts are made as aforesaid or are to be so made or the times at which any broadcasts are to be so made.I think that is quite clear. Then we go on—and I quite see the difficulty of the Government here. The timetables of the B.B.C. and the I.T.A. are published in the newspapers. These are not advertisements. They are not paid for, and they are published by the newspapers strictly on the basis that they are news; otherwise, they would not publish them. In the battles of the 1920s the B.B.C. were not prepared to pay for advertisements, 34 and Lord Reith thought that these time-tables ought to be published, and so eventually the Press decided to publish them, but strictly on the understanding that they were news and not advertisements.
I can see the difficulty of the Government in this connection. For example, the newspapers might think it proper to publish the timetables and details of the programmes as news, without being paid for them at all; and the Government do not want that. That is why in my Amendment I have made it quite clear that instead of saying "any advertisement" of the times at which broadcasts are to be so made, the Bill would say "any intimation or other indication of", and so on. I would commend that Amendment in particular to Her Majesty's Government because it seems to me to be a good one.
Doubtless it is not only the times at which the broadcasts are to be made that the Government do not want published, and therefore my second Amendment seeks to add, after the words:the times at which any broadcasts are to be so madethe words:or of the content or other particulars of any broadcasts which are to be so made.We then come to Amendment No. 5, which perhaps I may discuss at the same time. This accepts the ordinary usage of the word "advertisement" but extends it to cover hand-outs; in other words, it covers not only a paid-for advertisement but a hand-out made by, or on behalf of, any of the operators: and not merely by them, but also on behalf of them. Handouts prepared by public relations firms, and the like, nowadays are not advertisements, and if they are published they do not form advertisements in any usual sense of the word. The Press will publish them only if it considers that they are worthy of publication for their news or editorial value.
I can see the difficulty in which the Government find themselves here, too, and my object is to help them, if I may presume so to do from the Opposition Benches, by trying to cover this particular point without in any way impinging on the freedom of the Press. I think the freedom of the Press to report that somebody has fallen off a rock at one of these stations, and to report news and make editorial 35 comment, ought to be preserved, and I have not attempted to cover the reporting and criticism of programmes. I am somewhat in two minds as to whether it would be right to try to do so, but it is quite certain that only if the newspapers were receiving some kind of consideration for publishing articles—in other words, if the newspapers had shares in one of the illegal broadcasting outfits, or received any kind of consideration whatsoever (and in that case I am inclined to think it would then become a paid advertisement), would they come within the ambit of the Act.
I hope that I have made clear the purpose of my Amendments. I think it is extremely important to maintain the complete freedom of the Press to comment and report, and to let the Press know exactly where they stand in this matter.
§ LORD SORENSEN
My Lords, I should like to assure the noble Viscount, Lord Colville of Culross, and the noble Lord, Lord Drumalbyn, that I am most grateful to them for putting down these Amendments and also for giving some reasons for them beforehand. I am particularly grateful because it helps me to fulfil an assurance which I believe I gave in the last discussion which we had on this matter, that at a later stage we should be able to discuss precisely the matters which have been discussed to-day. I am also grateful that all these Amendments, covering the same subject and with the same intention, are being taken together.
Throughout the course of this Bill various ways of re-drafting or amplifying paragraph (f) of Clause 5(3) have been considered. Here I would say I fully appreciate that the Amendments put down are of a constructive nature, and I share the apprehension of noble Lords, particularly in regard to the possible restriction of the freedom of the Press. The object in each case has been to remove any uncertainty which may arise from the absence of any definition of the word "advertisement" for the purposes of the Bill, but they have all highlighted the difficulties of trying to predetermine the issue for every particular circumstance. I confess I was surprised to find that there was no adequate definition of the term "advertisement", and although reference has been made to the Encyclopædia Britannica I am not par- 36 ticularly impressed by that definition. It is after all, only the definition of one man or group of men in the background.
I should have thought that in some circumstances it is possible to envisage gratuitous advertisement, appearing not for any pecuniary advantage or remuneration at all but simply for interest on the part of the editor. Be that as it may, the Government have considered this matter very carefully indeed, and after prolonged thought they are of the opinion that, for reasons I will elaborate in a moment or two, it is better not to attempt to alter the existing wording of the Bill under which the interpretation of the word "advertisement" is quite deliberately left, in the ultimate, to be determined by the courts.
Perhaps it would be helpful if I enlarged on this point and explained the problems involved, though some have been touched on already. The European Agreement requires its signatories to legislate againstthe provision of services concerning advertising for the benefit of the stations".This paragraph is intended to implement that provision. However, it is not the Government's intention to penalise the publication of editorial comment or of genuine news items concerning the pirates, both of which could not be regarded as other than normal activities of the Press. It is on this point that the Amendments put down by the noble Viscount, Lord Colville of Culross, and the noble Lord, Lord Drumalbyn, seem to be defective. I say that with all due respect, because I repeat that what has been said in regard to these Amendments not only is constructive but also contains, I think, certain substance. Nevertheless, on balance, after much consideration, the Government have decided that it is better not to attempt to alter the existing wording.
The problem is to penalise anything which is published for the purpose of promoting the interests of the pirate stations without at the same time encroaching on the right of the Press to publish genuine editorial comment or genuine news items concerning the stations. There we are all at one. It was argued in another place that the contents of a newspaper could be divided into three categories: news, comment and advertisements, though sometimes they overlap, as all categories are 37 apt to do. But the issue is not quite so simple as that, as I am sure most people appreciate. If we relied on that sort of categorisation we should merely be inviting the pirates to get their advertisements disguised as editorial comment. Obviously the reputable newspapers—and I will not specifically designate which they are—would not allow that; but there would be nothing to stop newspapers and other publications of another kind from doing it.
There is at least one newspaper devoted entirely to promoting the activities of the pirates. I have a copy on the seat behind, though I will not give it any free advertisement. No doubt it would be possible for such a newspaper to be published after this Bill came into force—a newspaper or journal, that is to say, having no connection with the pirates which could be demonstrated in a court of law. Advertisements for the pirates could easily be dressed up as comment or news items, without destroying their effect as advertisements, if the publishers merely had to get round a form of words. This is the difficulty, which I fully appreciate has been recognised by noble Lords and others, including indeed the Government itself, and the Postmaster General in particular. They have considered alternative ways of drafting the paragraph. Some of these alternatives have left loopholes, and some have gone too far in the opposite direction so that they would penalise genuine comment or news items. The noble Lord, Lord Drumalbyn, has posited that announcements should be penalised only ifissued by or on behalf of any person who procures the making, or makes or is to make, any such broadcast as is referred to in that paragraph".This would catch a direct advertisement made by a pirate, provided it could be proved that he had made it. However, it would not prevent advertisements in the sort of newspaper I have just mentioned, issued by people who do not themselves procure illegal broadcasts but who fully support those who do.
§ LORD DRUMALBYN
My Lords, would the noble Lord forgive me? I am not certain that he has quite got the point of Amendment No. 5. The advertisement is dealt with firmly in paragraph (f) already—"publishing any advertise 38 ment"—and Amendment 5 merely extends. It does not define it, it does not limit it; it is an extension of the usual meaning of "advertisement".
§ LORD SORENSEN
My Lords, I thank the noble Lord for his intervention. If he will allow me to go on, it may be that his point is covered. If not, he can return to the criticism. I have already said that there is no intention on the part of the Government to suppress Press freedom to state their views, however much we may disagree with them, or to prevent them from publishing news items of general interest to their readers. But we wish, and indeed are bound, to stop them from providing a free advertising service for the pirates. If the noble Lord will allow me to continue, it may be that his points are covered in part, but I am most willing, of course, for him to criticise further if he feels he must or that my reply is inadequate. Such advertisements would promote the interests of the pirates, but would not be offences under these Amendments. However blatant they were, provided the publisher could not be proved actually to be in league with a pirate station or one of its agencies he would have nothing to fear.
Indeed, the more one thinks about this problem the more one realises that the closing words of Amendment No. 5 would make the prohibition on advertising almost impossible to operate, except in the very few cases where a publisher could be shown to have received payment for advertising a pirate station's programme. In fact, the conclusion to be drawn from the difficulties which arise when one tries to draw a dividing line between advertisements, however disguised, on the one hand, and, on the other hand, news items, however favourable to the pirates, and make the division one which will hold good in all cases, is that this is a matter which must most appropriately ultimately be left for the courts. The factor which decides whether an item is an advertisement or not is its intended effect on its readers, and it will be far fairer to rely on the judgment of the courts in particular instances than to attempt to establish a delimitation for all time—an attempt which would at best be only an approximation.
I should like at this stage to refer, briefly and separately, to Amendments Nos. 1 39 and 4 put down by the noble Viscount, Lord Colville of Culross. The Government considered that wording very carefully, but concluded that by prohibiting any announcement of the details of any broadcast made by a pirate station these Amendments also would penalise genuine newspaper reports of a broadcast made by a pirate station. Under the Bill as it stands it would fall to the courts to decide whether anything published about a pirate station was or was not an advertisement; and it is the Government's view, after detailed consideration and much advice, that the courts, and the courts alone, are able to do this. Unlike Parliament, which has to legislate for every conceivable situation, the courts determine matters like this in relation to the facts of each individual case, and it is only in relation to the facts of the particular case that it is possible to determine whether something which is published about a pirate station is or is not an advertisement. In most cases of genuine news or comment, of course, the problem will not even arise, since no case will be taken to the courts unless the prosecution considers that it can satisfy the court that what was published was an advertisement. And the publisher has nothing to fear unless he chooses to sail close to the wind by advertising the stations under the guise of news or comment.
I do not know whether I have satisfied noble Lords. Certainly I am prepared to listen to further comment on their part. But I hope that at least it indicates on the part of the Government an attempt to meet their point, one with which the Government are as much concerned as are the Opposition. There is this quite genuine desire to safeguard the legitimate freedom of the Press. In those circumstances, I would urge the House that Clause 5 should stand as drafted, but of course I am open to further comments by noble Lords.
§ 4.22 p.m.
VISCOUNT COLVILLE OF CULROSS
My Lords, I hope that under this procedure that we adopted my noble friend Lord Drumalbyn may, by leave of the House, be allowed, if he so desires, to have another word, although at the present moment we are discussing only my Amendments. May I say that I greatly 40 welcome what the noble Lord, Lord Sorensen, has said about this, and the great detail which he has given as to his reasons for rejecting, or suggesting the rejection of, these Amendments. However, he made one or two significant points, and perhaps I can deal with them on the basis of my own Amendments.
First of all, I think the only criticisms he made of the form of my Amendments were two. First, he suggested that when I referred to the details of the broadcasts I ought to have put it as future broadcasts, whereas I have made it general so that it would cover past broadcasts. This is a pure drafting matter, and I think could quite easily be set right. He then said that in paragraph (b) of Amendment No. 4 the matter was defective, though he did not say in what way. He has admitted that there is going to be uncertainty. He has admitted that under the Bill as drafted the situation should and can be dealt with only by the courts: they alone can say what is or what is not an advertisement.
The noble Lord went on to say that there is this safeguard: that the prosecution will not bring a case unless it thinks that it can satisfy the court that an advertisement has in fact been made. How on earth can the prosecution suppose beforehand that it will be able to do that?—because until the courts have decided a number of cases, nobody knows, least of all the prosecution, or any Member of this House, or indeed anybody, what "advertisement" is going to be held to mean under this Bill. It is no safeguard whatever to say that a prosecution will be brought only if those prosecuting think that they have the right proof, because the offence itself is not defined.
It is all very well to say that newspapers will get into trouble only if they sail "near the wind", but even on a summary conviction on this particular offence there is a fine of £400 or a maximum of three months imprisonment, or both, while for conviction on indictment there is provision for an unlimited fine or imprisonment for a maximum of two years, or both. Then if your Lordships look at Clause 6(2) you will see that, if it is a newspaper that is prosecuted, the director or the manager or the secretary, or whoever it may be, is the person who 41 may be subject to these penalties. This is a severe penalty, and I have no doubt that it is perfectly right for these offences. But it requires a certain amount of consideration before we leave it upon this basis.
Could I ask the noble Lord to consider one other matter? In the course of his speech he twice used an expression (I think what he was saying was that this was what the Government wanted to catch): "material which is intended to promote the interests of the station, or which promotes the interest of the station". I particularly noticed him using that expression twice. That is precisely what my Amendment says will be caught, and I have not heard any criticism of that particular phrase in my Amendment. It may be that there is none. The noble Lord did not really go into that aspect. I can see that it is possible that he would criticise the proof of the intention. I had expected him to do so. But he did not mention that as a difficulty, and although it may still be a difficulty, I suppose that at the moment the Government are satisfied with that particular part of it.
Is the situation not this? As the noble Lord said, we have genuine apprehension that there will be difficulties about this provision. Is it too late to have one more look at this? I can assure the noble Lord—and I am sure that I speak also for my noble friend Lord Drumalbyn—that I shall he prepared to do anything I can to help in trying to get this matter right. I know that there have been a number of attempts at drafting this clause, but I do not believe that we ought to despair where there is an accepted difficulty. I would ask the noble Lord to have one more look at this point, because there is another stage at which the Bill can be amended. Would he say that afterwards we can perhaps get together and try once more to see whether this problem can be solved in a satisfactory manner? I do not know whether the noble Lord would be prepared to give that assurance.
§ LORD STRABOLGI
My Lords, I should like to support what the noble Viscount, Lord Colville of Culross, and the noble Lord, Lord Drumalbyn, have said, and in spite of the full and reasoned argument of my noble friend Lord Sorensen, I believe that the position is 42 by no means clear. As I understood it, my noble friend Lord Sorensen said that it was the wish of the Government not to inhibit or curtail free editorial comment. Then he went on to say that, on the other hand, they were against editorial comment when this was put out by a paper which had an interest in the subject concerned. I think the dividing line is going to be difficult to define. My noble friend Lord Sorensen said that this should be defined in the courts. But is it not unfair on the Press that they should be so inhibited in this way that any comment they make will be in danger of being taken to court? It would seem to me to be a definite infringement of the liberty of the Press to comment editorially on such matters as they think fit. It is not yet an offence to listen to pirate radio, but if this Bill is not amended it might be and could be made an offence to comment on it in any way. I hope that the Government will consider this matter carefully before Third Reading. I remember the late Lord Jowitt saying, "When in doubt, put it in the Bill". I commend this view to the Government.
§ LORD LEATHERLAND
My Lords, my noble friend Lord Strabolgi speaks as a really great authority on the question of advertising. I know little about advertising, but for well over forty years I was intimately concerned with the editorial side of the production of a daily newspaper, and I know the difficulties which newspapers have every night in deciding what shall go in the paper and what shall stay out. A good many of the grey hairs that I bear at the moment are evidence of the trials and tribulations I had night after night when I was the person responsible for producing the paper at night, and for putting our five or six nightly editions to bed.
I do not think one can get over the trouble which newspapers have with regard to legal restrictions. There is the question of libel, which crops up five or six times a night on any daily newspaper. I am particularly interested in this question of libel because in the whole of my newspaper career I never landed my proprietors in a libel action—I inherited one, but I never of my own action landed them in a libel. But in my very young days—this will perhaps be outside the knowledge of many of your Lordships—I was a close friend of 43 the late Sir Artemus Jones who was involved in the famous Jones v. Hulton libel case. He and I often used to have a chat over a cup of tea in my house in Cheshire about the intricacies of the libel laws. He learned plenty about it because the Hulton Press landed themselves into having to pay him a very handsome sum.
We ought to leave the question of defining "advertisements" as it is in the Bill and leave it in due course for the courts to decide what is and what is not an advertisement. In my long newspaper experience I always understood that an advertisement is something which is paid for. On the editorial side we were a1-ways watching for crafty industrialists and shopkeepers who were trying to get information into the editorial columns of the newspaper without paying for it, but we never regarded that kind of thing as a bona fide advertisement. If any of your Lordships were to go along to a newspaper office and say, "I want to insert an advertisement", the first thing the newspaper would say to you is, "Well, the advertisement will cost you so much" It might clarify the phraseology of the Bill if my noble friend were able to insert the word "paid", so that the Bill referred to "paid advertisement" rather than to "advertisement", especially as the word "advertisement" has apparently never been the subject of legal definition.
There are, of course, borderline cases. I remember over forty years ago when, as a young reporter on a provincial weekly newspaper, it was my job, among many others, to report the funerals of the week in our town of 35,000 inhabitants. In addition to the bare facts of the funeral, it was the custom for my newspaper to print lists of people who had sent wreaths together with the appropriate sympathetic inscriptions. We used to charge a shilling a line for all these wreaths. The principle followed was that if an undertaker said, "I want you to insert 20 wreaths at a shilling a time", we said in our editorial matter, "The funeral arrangements were efficiently carried out by Mr. So-and-So of Mill Street"; but if the undertaker did not consent to pay for any wreaths, we merely said "The funeral arrangements were carried out by Mr. So-and-So." There are borderline cases between what is a paid advertisement and what is not. I 44 believe that if we were to insert the word "paid" before the word "advertisement" it might help to clarify the matter to some extent.
I was delighted to hear from my noble friend that it is not the intention of the Government to penalise the publication of news items concerning these pirate stations. It would have been quite outrageous had the Government tried to ban the publication of the shooting incident involving a well known pirate radio owner and a person who came to complain about something to him a few months ago. That obviously was straight, hard news which any newspaper ought to be entitled to publish.
There is another borderline possibility in this matter. What is the situation if a newspaper announces as part of an editorial story the fact that a certain pirate radio is to reproduce the recorded version of what we know as the film Ulysses, which has had a certain amount of Press attention just recently? I know that the oral side of the film is the attractive part—to some decadent people, of course—but if after reviewing the film, as many newspapers have done this morning, they were to announce that a certain pirate station was to give a recording of the sound track of that film the following morning in a broadcast, would the newspaper be free to do so or would it be penalised? It is these borderline cases which are going to cause trouble. I do not think we should have much fear about hand-outs from the pirate radio companies. If there is one thing that a news editor can smell a mile off it is an official hand-out either from a Government department or from a commercial undertaking.
I was rather doubtful about the expression used by the noble Lord opposite that we should "Let the Press know where they stand". I do not think that one can let the Press know where they stand without, perhaps by inference, introducing some degree of control over the Press. The Press has to be left to use its own common sense and make its own judgments night by night on story after story that drops from the "tape", without any guidance from the Government as to "where they stand". We have heard a great deal recently about "D" notices, which were attempts to let the Press know where they stood. We know that there 45 has been a good deal of trouble about this, and nothing like unanimous support for this well-intentioned effort by the Government to let newspapers "know where they stand". Newspapers on the whole are produced by fairly competent people, people who have to exercise intellectual courage of a high order night by night, and they have to take the decisions. Sometimes they will be wrong, sometimes they will be right. They will be well advised by a barrister who sits in every editorial department of a newspaper every night. They will receive that barrister's advice and the editor in charge will either accept that advice or overrule it in the interests of what he thinks his newspaper readers should know.
There is some element of doubt as to what constitutes an advertisement and what does not. To some extent that element of doubt could be minimised by the use of the word "paid" in the Bill, but on the other hand ultimately the question is one which must be settled by the High Court. It has never been settled in the past, and it has to be settled some time in the future. There is an old saying in the newspaper industry "When in doubt, leave out". I am quite sure that that is the mood in which most newspaper executives will approach news items about this subject if this Bill goes through, as I hope it will, with perhaps the small Amendment which I have suggested.
§ LORD SORENSEN
My Lords, on both sides of the House there is evidence that we are still not clear in our minds as to the meaning of the word "advertisernent". If only there could be some authority adequately to define or describe "advertisement", a great many of our difficulties this afternoon would disappear. For instance, the noble Lord, Lord Leatherland, gave the definition, "Something for which payment is made" I have already pointed out that it is possible to advertise something without any anticipation of pecuniary gain. Be that as it may, I am impressed by what noble Lords have said on this matter, particularly as they were, I believe, all at one in their hope to see this Bill pass into law and to satisfy ourselves on this particular point. Therefore, there is no need for further argument on my part if I say that I am quite prepared on my own responsibility to see that this matter 46 is considered very carefully indeed. I thank noble Lords earnestly for the suggestions which they have made and for their efforts in this matter. In those circumstances, perhaps a great deal of time might be saved if the noble Viscount will agree temporarily to withdraw the Amendment.
VISCOUNT COLVILLE OF CULROSS
My Lords, if I may by leave say one more word, I am very grateful to the noble Lord for what he has said. There is just one further thing which I forgot to say at an earlier stage. Perhaps we shall have an opportunity to discuss it again, but I should like to say it in the House at this stage. The difficulty about saying, "Get the courts to decide this", is that if these matters are dealt with by the magistrates they are not reported. It is nowhere to be found in any journal unless you are very lucky. If the matter goes to quarter sessions, again it is not reported unless you are very lucky.
In both of those cases it is quite probable that no reason for the decision will have been given. The case will have been either proved or not proved, and the man found guilty or not guilty or whatever it may be, and no reasoned argument which one can look at will be set out anywhere. If the matter is tried on Assize it may with luck be reported. There may he a summing-up reported in the Law Reports which one can then look at. The only real way to get this before the courts and get a decision will be to take it on appeal or on case stated to the Divisional Court. But this may take some time, and it will then be specifically related only to the facts of that case.
Will the noble Lord consider that, because it is a real difficulty? It is all very well to say, "Let the courts consider it", but how is one to get any sort of common approach by the courts and how is one to discover, even if the courts have decided a case on the point before, what it is they have decided and why? This is a real difficulty and perhaps this might also be considered.
§ LORD SORENSEN
My Lords, I assure the noble Lord that it will be considered. But, on the other hand, for my own information—for I am very ignorant on these matters in some respects—may I ask him whether it is not highly likely that in the case of a decision made by a court at 47 any level it would at least be reported to the Postmaster General? Obviously he would take steps to see what was the result of the judgment, and that would be recorded. Therefore, it would surely be made available to all those who were legally interested in the matter.
VISCOUNT COLVILLE OF CULROSS
My Lords, I think that many of those who appear before magistrates' courts would very much like to have the reasons for the decisions. But that does not necessarily mean that those reasons are always given, and even if the Postmaster General knows, he is not the Press, and it does not follow that anybody else would know. I do not want to take up any more time on this, and I am most grateful for what the noble Lord has said, because there is a real difficulty. I shall be very glad to beg to withdraw this Amendment, but shall seek leave to discuss it later.
§ Amendment, by leave, withdrawn.
§ Clause 6:
§ Penalties and legal proceedings
§ (3) Proceedings for an offence under this Act may be taken, and the offence may for all incidental purposes be treated as having been committed, in any place in the United Kingdom.
§ 4.43 p.m
VISCOUNT COLVILLE OF CULROSS
moved to insert at the beginning of subsection (3):
Save for an offence under this Act committed upon land in the United Kingdom,
The noble Viscount said: My Lords, this is another point which was raised by myself on Committee stage, and the noble Baroness, Lady Phillips, dealt with it in a very helpful way. I am extremely glad that the noble and learned Lord the Lord Chancellor is here on this occasion, because I believe that there is a broader principle than that incorporated in the Amendment to the Bill itself which should be dealt with. What I suggested in Committee was that, apart from the case of offences committed outside territorial waters, the ordinary rules as to where the case is to be heard and the jurisdiction of the court should apply. Of course, this would have the effect of
seeing, among other things, that cases which ought to be tried under Scots law or Northern Irish law are so tried and are not dealt with in another part of the British Isles.
§ I need hardly say that I accept the assurances of the Government that there will not be any "funny business" about that. But the fact remains that, as I understand the answer of the noble Baroness on the last occasion, even inside territorial waters there is considerable doubt about who has jurisdiction, and there may be even more doubt in Scotland than there is South of the Border. Therefore, if nothing else has been achieved by the discussion on this point I think it has raised the somewhat important case of what is the correct procedure and how it is to be fully implemented where offences are committed in territorial waters. I think that some general discussion ought to take place, not on this occasion but on some other occasion, because of the difficulties which have been thrown up by the drafting of this clause.
§ Accepting that there are difficulties about territorial waters, I go back to the last case which was dealt with on the previous occasion. If the offence is committed on land—and I hope that "upon land" can only mean upon land, and cannot also include any offences committed in territorial waters—there are perfectly good, ordinary rules which determine the venue and the court which has the jurisdiction. The rules in Scotland are different from those in England, but since there are perfectly ordinary rules which apply to criminal law in every case, why must there be an exception here? I do not believe that this is a good precedent.
§ We are saying that because prosecutions will take place only at the instance of the Attorney General, in England—or of the procurator fiscal, in Scotland, or the Attorney General in Northern Ireland—then we do not need to bother about the ordinary rules of venue and about which court has jurisdiction. If we apply this in every case, where are we going to get to with the rules of jurisdiction and venue? Why must there be some exception from these eminent authorities? I see no reason whatever for it and, if no practical difficulty is envisaged about dealing with Scottish cases under Scottish 49 law and English cases under English law, why on earth should there be any refusal on the part of the Government to accept that the ordinary jurisdiction should apply to those cases which are committed on land?
§ I know what tends to happen in cases of this sort. We shall get a complicated matter, perhaps arising on the high seas or on land, and it will then be said (and this has happened before, even in my short knowledge of Parliament): "Parliament allowed it to happen in the Marine, &c., Broadcasting (Offences) Act 1967, so why should they object to it now?". At any rate, let it not be said that I did not object, even if my objections are overruled. I consider that the noble Lord, if he will be so good, ought to make out a case as to why, in the case of offences committed on land, the ordinary rules will not do. If he will do that to my satisfaction then of course I shall be content. But So far nothing that has been said, either in this House or in another place, has really cleared up this point. I beg to move.
§ Amendment moved—
§ Page 6, line 21, at beginning insert the said words.—(Viscount Colville of Culross.)
§ 4.45 p m.
§ LORD SORENSEN
My Lords, I am obliged to the noble Viscount for dealing with this matter, and again of course there arises the question of definition. An Amendment similar in intent was discussed in detail in Committee. It was explained then that any well-meant attempt to modify subsection (3) of Clause 6 would merely open up loopholes for the pirates to exploit. The attempt represented by this proposed Amendment illustrates this very point.
The essence of the Amendment is that it seeks to distinguish between offences committed on land and those committed elsewhere. At first sight this seems quite unobjectionable, but when we come to consider what is to be understood by "upon land" the difficulties begin to appear. For instance, are sandbanks considered to be land, even though they may be submerged at certain states of the tide, and even though the general rules of venue do not specifically confer on any courts jurisdiction to deal with offences committed on them out to the limits of territorial waters, and even be 50 yond? One can think of other circumstances in which it might be difficult for the courts to determine whether an offence was or was not committed on land. Barges lying in the mud of an estuary might present similar difficulties.
The Amendment also seeks to distinguish between offences committed in the United Kingdom and those committed elsewhere, but in the drafting of this Bill great care has been exercised to ensure that in no important matter will it be necessary for the courts to determine just where the outer boundary of the area connoted by the expression "the United Kingdom" lies. This has been done for the very good reason that in the present state of the law there is scope for dispute as to just where that boundary lies and as to the jurisdiction of particular courts over all places within it. The pirates have already shown themselves to be experts at exploiting such uncertainties and ambiguities.
So, my Lords, even this very brief Amendment would introduce two quite separate areas of uncertainty for the courts to wrestle with and for the pirates to exploit—what is meant by "upon land", and what is meant by "in the United Kingdom"? As was explained during the Committee stage, the purpose of subsection (3) is not to enable offences committed in one part of the country to be prosecuted in another part. Offences under the Bill committed in Scotland will be dealt with in Scottish courts according to Scottish criminal procedure and rules of evidence. I am glad to note that the noble Viscount—at least, I understood him to say this—appreciated that that was the genuine intention of the Government. On that point, therefore, surely no great difficulty arises.
The purpose of the subsection is to prevent offenders from broadcasting on waters round our shores under cover of the uncertainty of the general law as to the jurisdiction of courts and the means of process relating to offences committed on those waters. It is because of this uncertainty that the subsection is needed and must be so worded as to leave no room for argument. This of itself, I admit, is a very difficult thing to do. I hope I have demonstrated how this very well intentioned Amendment, which appears on the face of it to confine the exception which it creates to offences committed on 51 the mainland, could nevertheless lead to difficulties in enforcing the provisions of the Bill in relation to the activities of the pirates in offshore waters. The declared intention of some of the pirates is to exploit every legal uncertainty and every loophole to enable them to carry on their activities. It would serve them, therefore, to amend the subsection in such a way as to assist them to do so. I only hope that what I have now said meets, at least in some measure, the points raised by the noble Viscount.
VISCOUNT COLVILLE OF CULROSS
On the contrary, my Lords, it does nothing of the kind, because, in my respectful submission, the point has not been fully worked out by the noble Lord. Would the noble Lord consider this case? He spoke of a sandbank. Let him imagine a sandbank off the coast of Suffolk. Now there is some doubt whether this is land within the United Kingdom or not; nevertheless, the case is taken in the petty sessional division of Felixstowe, to take a case in point. The defence says: "This is not land within the United Kingdom at all. This is a sandbank within territorial waters." The prosecution then says: "Very well; if it is your contention that this is in territorial waters, there is jurisdiction in any court in the United Kingdom, not excluding the petty sessional division of Felixstowe. Therefore, whatever way the argument is taken by the defence, there is still jurisdiction in this court". The noble Lord does not seem to have taken this point at all.
52 Furthermore, the noble Lord did not comment in any way—I appreciate this is not a Committee stage, when we are allowed to make more than one speech, and perhaps I can discuss this with him again afterwards—on the general difficulty about territorial waters. I would not expect him to have any brief upon this point to-day, but I hope he recognises that what he is saying deals with only a very small part of a much wider problem, and that if the law on the jurisdiction as to offences committed in territorial waters in general were satisfactory, we should not be having this difficulty in this Bill. I hope, therefore, that there are two points upon which he will have an opportunity to think further before we finally say goodbye to this Bill.
As I say, I am afraid of this provision as a precedent. I see no reason why, just because we are up against some cunning people who wish to take any opportunity given to them to evade the full strictures of the Bill, we should depart from what are well-established rules of drafting and well-established principles of jurisdiction unless it is proved that we have to—and the noble Lord's example, in my opinion at any rate, seems to be the very contrary to that sort of proof. Nevertheless, if the noble Lord will allow me at any rate to discuss it with him privately if necessary afterwards, I will for the moment withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ House adjourned at five minutes before five o'clock.