§ 2.50 p.m.
§ LORD BYERS
rose to call attention to the important evidence and conclusions contained in the report of the Committee on Privacy, presented to Parliament in July 1972 (Cmnd. 5012); and to move for Papers. The noble Lord said: My Lords, despite the competition from another place—I refer, of course, to Epsom and not the House of Commons—we have a very good size "field" to-day, and I am grateful to all those noble Lords who have indicated their intention to take part in this debate. I put down this Motion, to debate the Younger Committee's Report on privacy, about a month ago. I did so in order to find out from the Government whether they have come to any conclusions on the recommendations which we made, and also to find out what has happened in some of the non-Governmental areas upon which the Committee commented. 105 In retrospect, I wish that we had initiated this debate at a much earlier date. First of all, however, I should like, as a member of the Committee, to pay a tribute to our Chairman, Sir Kenneth Younger, and also to the two clerks, Mr. Pratt and Mr. Lockett. Kenneth Younger's infinite patience, assiduity and good nature were attributes which made the Committee's task a smoother one than it might otherwise have been; while Mr. Pratt and Mr. Lockett demonstrated the highest possible standards of Civil Service organisation and penmanship, often with a light and humorous touch which was very welcome. I should also like to refer to the diligence of my colleagues on the Committee. My Lords, I do not think there are many people in this country who recognise the tremendous amount of unpaid public service which is undertaken. In our case, we worked from May 14, 1970, until July, 1972. We had many formal and informal meetings, including two weekends of deliberation, but the main burden of work was the reading of the masses of paper which were submitted to us—a really formidable task.
The immediate origin of the Committee lay in the Second Reading debate in another place on the Right of Privacy Bill introduced by Mr. Brian Walden. M.P., which in turn was largely based on a draft Right of Privacy Bill published by a committee of Justice. But, in fact, many years before that, in this House, the noble Lord, Lord Mancroft, had introduced a Bill on very similar lines. Both the Justice draft and Mr. Walden's Bill embodied a general right of privacy which, when infringed in certain ways, would be actionable in civil law. The Younger Committee concluded otherwise, after considerable and heart-searching debate; and indeed the Minority Report by Mr. Alec Lyon, M.P., argues cogently for a general right. Despite recent events, I doubt very much if this general right of privacy is desirable at this point of time: but it is a legitimate matter for discussion and debate.
My Lords, before I turn to the conclusions of the Report, I must say a word or two on the terms of reference. These were as follows:To consider whether legislation is needed to give further protection to the individual citizen and to commercial and industrial interests against intrusions into privacy by private 106 persons and organisations, or by companies, and to make recommendations.In other words, we were confined to examining the private sector only, and were prohibited from dealing with the public sector. We represented both to Mr. Callaghan, the then Home Secretary who set up the Committee, and to his successor, Mr. Maudling, that in our view this was quite wrong, and that we should be allowed to deal with the whole field of privacy, both private and public, excluding of course anything which might come within the terms of the intelligence system or the defence forces of this country. Neither of them would agree. I still think that these two decisions were wrong. I feel that the Committee's Report is that much more incomplete, and I still believe that practices in the public sector, including those in which data about private individuals is available in computerised form, should be objectively scrutinised.
The first difficulty we faced as a Committee was in trying to define "privacy", and in the event we decided that it could not satisfactorily be done. We looked at many earlier attempts, and we noted that they either went very wide, equating the right to privacy with the right to be let alone, or that they amounted to a catalogue of assorted values to which the adjectives "private" or "personal" could reasonably be applied. In the Report we list the various definitions which have been attempted in the past; but, as I have said, we did not attempt a definition ourselves. Instead, we looked at areas where privacy was threatened, we examined existing remedies, and we pointed to areas where action was required.
I should like, first of all, my Lords, to deal with some of the problems that we examined which fell in areas for which the Government do not have direct responsibility. I wish to stress that at all times, and particularly when dealing with the Press and the media, we were very fully seized of the difficulty of striking the right balance between the protection of privacy of the individual, on the one hand, and the freedom of the Press and the media, on the other. This, as I see it, is really the crux of the problem. So far as the Press and the mass media are concerned, the Committee took a good deal of time in examining the protection of the individual from 107 intrusion. It is only fair to say that we did not receive many examples of such intrusion, and we came to the conclusion that we should not be justified in suggesting new machinery but that we should rely on improving the existing system.
As to the Press itself, we recommended, among other measures, that one half of the membership of the Press Council should be drawn from outside the Press, and that this should be achieved by creating an Appointments Commission which would put forward suitable names. I have been fortunate to receive from the noble and learned Lord, Lord Pearce, the Chairman of the Press Council (I am delighted to see that he is to take part in this debate, and the House will owe him great gratitude for doing so), his views on this point. I am sure he will refer to it. But having corresponded with the noble and learned Lord, I am convinced of the strength of his argument. In brief, what he says is this: that the Press Council have now altered their composition to double the number of lay members so that laymen make up one-third of the total, and improvements have been made in the membership of the Complaints Committee, to which I hope he will refer.
The noble and learned Lord, Lord Pearce, makes the point that the Press Council is a self-disciplining body, and in his view it would never work properly if it were based on a system of a majority or equality of laymen criticising the Press in that forum; and that Press Council judgments have weight very much because they are the judgment of the Press itself. As I say, this was not the view of the Committee: we wanted to see a 50–50 system. I believe that the Press Council have gone a long way to meeting us, particularly by the quality of the people they have recently added to their lay membership. We also recommended that when the Press Council make a critical adjudication, the newspaper at fault should publish it with similar prominence to that given to the original item and not just hide it away in a few lines on a back page.
The final major point we made was that the Press Council should create a codification of their past adjudications in order to create a code of ethics for the guidance of, we said, "working 108 journalists". I am assured that the Council have decided that this will be done, and have got down to the task not only of doing this, but of doing the same thing for all aspects of Press ethics. Judging by the disclosures this week-end about the activities of the News of the World and the Sunday People, I would say that the need for such a code of ethics is by no means confined to the working journalists; it goes right through the organisation. I believe that the creation of such a code by the Press Council is a matter of real urgency, and the question will surely be asked: is a code enough or should it be backed by some form of sanction? At the moment, intrusions of the sort reported cannot be caught by the law. I should welcome Lord Pearce's views on this subject. If there were sanctions of any sort, I believe that they should be the responsibility of the Press Council, and only as a last resort should we be forced into legislative action. This is a field in which the Press has a very high responsibility indeed.
I now turn to the Independent Broadcasting Authority. I have had the benefit of a letter from Lord Aylestone, the Chairman of the I.T.A., who told me that the Report of the Younger Committee was a helpful and constructive document. On the points we raised, he said that on the publication of the adjudications of the Complaints Review Board, which we suggested should be done, the Board has not so far had to consider specific complaints referred to it by the Authority or any member of the Authority; nor has it had to consider specific complaints where the complainant remained unsatisfied after investigation. But if it is called upon to perform these functions, then it is the Board's intention to publish any such complaints of unfair treatment or intrusions of privacy of the kind which the Younger Committee had in mind. The Board naturally made the exception, as I am sure everybody would, about publication which would be inappropriate for legal reasons.
Our second recommendation in this field was that the Complaints Review Board procedure should be extended to local independent radio. Lord Aylestone said in effect that they had not had enough experience of this so far but that they would bear in mind the Younger Committee's recommendations when a 109 decision was made. I am sure the I.B.A. recognise the need for adequate machinery. The B.B.C., I understand, have accepted two of the three recommendations we made, namely, that complaints may be lodged either with the Commission or with the B.B.C., provided that they are submitted within 30 days. They have said they know the Complaints Commission have in mind doing what we suggested—that is to say, widening the membership of the Commission when the next appointments are made. This is no criticism of the Commission, but we did feel that the membership had been drawn from a rather narrow sector.
However, the B.B.C. reject the idea that the Complaints Commission should accept complaints alleging invasions of privacy which are said to be incurred in preparing programmes, whether or not the programme goes on the air. They take the view that this in effect would affect the decision as to whether or not a programme, having been prepared, should go forward, and that this decision should rest with the B.B.C., and ultimately with the Government. I can only say that my own experience of making complaints to the B.B.C.—as I say, not on matters of privacy but on other matters—has been singularly unproductive, and one gets a real sense of frustration and injustice. In my view, the real importance of this is that if many people feel they cannot get satisfaction through the existing B.B.C. complaints system it will increase support for the movement to establish a strong watchdog for the mass media. I believe this would be unfortunate: I should like to avoid it. I want to see freedom for the mass media and the Press, but the remedy is in the hands of the mass media and the Press to ensure that justice is seen to be done and that people are satisfied.
I now turn briefly to the banks. The situation here is not, to my mind, satisfactory—I hope this comment is not going to affect my credit facilities or my overdraft position. It is true that the Committee received no complaints about banking practices from the public. Yet the Consumers' Association found no difficulty in their experiments to obtain references on people without the knowledge of the clients involved. They recommended that banks should not 110 give a reference without the subject of the reference having agreed. In addition, the Guardian newspaper on May 11, 1971, while the Committee were sitting, published a news item which revealed the ease with which confidential personal information had been obtained by them from various sources by two private inquiry agents. A detailed dossier on the news editor was compiled and supplied to the Guardian within 48 hours. It included, among other things, information from two banks obtained over the telephone, giving an account number, the balance in hand, the amount of his monthly salary, the timing of payments and other details. The banks say that this was an isolated incident and that they see no reason to change their existing system. The worrying thing here is the ease with which these details were obtained; and I still believe that some tightening up of the system is required and should be undertaken.
I will not deal with employment, students or medicine. I am sure that other noble Lords will speak on these, and the Report is pretty comprehensive. I will not refer, either, to credit references, on which the Government have already taken action. I know that my noble friend (if I may call him so) Lord Donaldson of Kingsbridge will be speaking on this subject.
My Lords, I now turn to a more topical matter, that is, surveillance devices. Though there was little complaint from the public, I must say that the evidence produced to us on this matter filled me with disquiet. We had demonstrated to us a wide variety of bugging devices. Apparently there is a brisk market for them in this country and a fairly lucrative export trade, particularly (though by no means exclusively) to Africa and the Middle East. I do not want to affect the balance of payments adversely, but this is not a consideration that I should regard as overriding. These devices arc certainly pricy, but they appear to be very effective. At the end of a demonstration we had from a witness (who subsequently found himself in jail) the demonstrator slipped out of a room in the Home Office without being noticed. He found another empty room down a corridor, bugged the civil servant's telephone and was back within five minutes. During the lunch break he 111 showed us how he had clearly recorded in a disguised suitcase the subsequent conversation of the civil servant when he returned. It was a very simple matter—and this was not one of the most expensive bugs.
I do not believe that unlawful surveillance should be underestimated. The difficulty is one of definition. In most cases it is no use trying to outlaw the device. For instance, a long-range telescopic lens with a camera provides a most effective and revealing telescope, as was demonstrated to us on one of our weekend trips. We therefore concluded that it was the surreptitious use of the devices, without the knowledge of the victim, which should constitute the offence. We recommended that surreptitious, unlawful surveillance should be an offence punishable by imprisonment or by fine on summary trial or indictment, and we define on page 15 of the Report what we mean by the word "surreptitious".
This offence would apply to photography, including infra-red, two-way mirrors and ail the other tricks that people get up to in this field. I believe, although I do not think we mentioned this in the Report, that those who help to lure the victim into a position where an offence takes place should be charged as accomplices. Advertising these devices should amount to an incitement to commit the main offence. If such legislation had been enacted immediately the Report was published, I do not believe that the Levys in the Lambton case would have dared to embark on this type of surveillance. I doubt whether the management of the News of the World would have risked a long prison sentence on indictment concerning an act which I suppose they considered to be in the national interest. I am not trying to prejudge the issues here, but these are self-admitted facts. I believe the deterrent would be there if such actions were known to carry the possibility of a long prison sentence. I must say that the claim by the News of the World that these recent actions are in the best traditions of British journalism certainly conflicts with the high-minded attitude of Mr. Rupert Murdoch, when he appeared before the Committee. I feel that an explanation is required from someone on that account.
112 Again, on private detectives there was not much evidence from the public, but there was sufficient to draw certain conclusions. Anyone appears to be able to set up as a private detective. There may be about 3,000 people available doing this job, or advertising to do it. In some cases they do useful work: they trace missing relatives and other things. But inevitably there is a small dubious minority. There are some laws in existence which afford some protection against such instrusion, but we came to the conclusion that something more was needed in addition to the present law and in addition to our proposals on devices. We believe that the licensing of private detectives is now essential in order to exclude from the profession people who are patently unsuitable. There are two private detectives at the moment who have been sent to prison and are now on bail. They are carrying on their profession in a very profitable way, I understand, pending an appeal. I do not wish to pronounce on the merits of this matter since it is obviously sub judice, but my point is that should the appeal be dismissed these men, having served a sentence, could immediately set up in business again; and I do not think that is right. We have exempted certain bona fide investigators and, as best we could, we have defined a private detective. I believe that this whole question needs urgent consideration.
As to computers, our recommendations I hope are clear. We should like to see the appointment of a Standing Commission to examine the use of computers, particularly for handling personal information. We should like the commission to review the guidelines which we have suggested in the Report and to consider the case for backing them up by legislation. We believe that this should apply both to the private and to the public sector. I only wish we had been able to take more evidence from the public sector. The commission would receive complaints about invasions of privacy or misuse of information, and propose controls where necessary. We also proposed the concept of what we called a responsible person to be in charge of computers, with a function and responsibility not unlike that of a company secretary or, as we pointed out, like the appointment of a mine manager under 113 the Mines and Quarries Act. Such a person in a mine is charged with ensuring the safe operation of the mine in accordance with the provisions of the Act. This responsible person would make sure that the computer was not used for purposes which were contrary to any legislation and that people who have not the right of access were prevented from having it no matter how high up in the organisation they might be. I believe that this is something which ought to be studied—perhaps it is being studied—with some urgency.
There is much more in the Report that I could mention, but in the interests of time I will conclude by suggesting to the Government that some sections of this Report require to be dealt with fairly urgently. Even if the Government do not fully accept our proposals I hope that they will be able to assure us that things are in progress in the Government Department concerned. I am particularly concerned to see some action to bring within the criminal law the surreptitious use of technical devices to bridge the privacy which everyone is entitled to enjoy. It is because of the absence of such protection that the blackmailer and the extortionist can work with relative impunity. My Lords, I am concerned that we should take appropriate action now to avoid the need for more drastic action later, action which through public pressure might make serious inroads into the freedom which we now enjoy. My Lords, I beg to move for Papers.
§ 3.13 p.m.
§ LORD GARDINER
My Lords, the whole House will be grateful to the noble Lord, Lord Byers, for giving us an opportunity this afternoon to discuss the Younger Report. We are all equally grateful to the members of that Committee for the great amount of work which has gone into this Report. I have a paternalistic interest in the way in which our laws ought to be reformed. This particular fight has been a long one and I do not think it is halfway through yet. It is an old subject. I suppose the first clarion call for a right of privacy was that which was made by Brandeis and Warren in the Harvard Law Journal in 1890. On the whole, we in this country have been slow in responding. The first prize for being first in legislation must go to the noble Lord, Lord 114 Mancroft, for his Right of Privacy Bill in March 1961. In 1964 there was published a book called Law Reform Now, of which I was a joint editor, which referred to that Bill. On page 73 it said:The time has come when a right of privacy should be recognised by the law, as it is in many American States. In 1961 the Right of Privacy Bill introduced into the House of Lords was opposed by the Government. This Bill should now become law and a new tort thus established.It has been my view for 12 years and more that we need a general right of privacy incorporated into our law. This would be in accordance with the United Nations Covenant on Human Rights, and with the United Nations Covenant on Civil and Political Rights to which the Government of the United Kingdom are a party and which so provides.
The next thing to happen was in February, 1967, with Mr. Alexander Lyon's Right of Privacy Bill. Two things happened in May of that year—quite fortuitously I think. At the annual meeting of the American Law Institute right of privacy was the principal subject for discussion. Secondly, and in the same month, in Stockholm the Swedish section of the International Commission of Jurists held a conference of some days wholly devoted to a right of privacy and made a report which was both comprehensive and admirable. In the same year the Cobden Trust did some research work on behalf of the National Council for Civil Liberties in this field. In September, 1967, Justice appointed a Committee on Privacy. As I am at present the Chairman of Justice I must make it plain that I had nothing to do with that at all, because naturally I resigned from Justice, as from all other bodies, on taking office.
In December, 1968—and I am only seeking to give credit where it is due—there was Sir Edward Boyle's Industrial Information Bill. In April, 1969, there was Mr. Gardner's Private Investigators Bill. In May, 1969, there was Mr. Kenneth Baker's Data Surveillance Bill. On June 18, 1969, the noble Lord, Lord Wade, introduced a Motion in this House in order to enable us to discuss human rights in general. I devoted myself on that occasion largely to a right of privacy. It was at a time when the medical profession were complaining that liver transplant donors had dried up because the 115 names and addresses of donors and their relatives were given despite doctor's requests, and people died in consequence. I also drew attention to a question which I have raised since from the point of view of a right of privacy; namely, how far anybody, after he has gone straight for a sufficient number of years, is entitled to protection from having old convictions dragged up against him. I raised the question of private investigators particularly in this field because many of them were openly saying that they could get anybody's criminal record from the C.R.O. for about £7. I had at about that time attended at All Souls an interesting weekend conference called by the Law Commission on a right of privacy, this was also attended by distinguished lawyers and representatives of the broadcasting media and the Press.
The noble Lord, Lord Windlesham, will remember that, having introduced his Computers and Personal Records Bill, he afforded us the opportunity on December 3, 1969, of a general debate on this subject in which I expressed personal sympathy and said that I had discussed the matter with the Home Secretary and hoped that the Government would soon be able to make a Statement about it. Following upon that the Law Commission themselves said in their annual report for 1969:In our third annual report we stated that we considered whether certain aspects of the Law relating to privacy should be proposed for examination with a view to reform. We have taken no further action since we understood there was a possibility of the subject being referred to a Parliamentary Select Committee. No such reference has been made. During the year under review there was a number of published allegations that industrial espionage is spreading and that invasions of privacy are on the increase. We are more than ever convinced that a very comprehensive examination of this subject by a wider based commission or committee is essential.The Justice report, Privacy and the Law, was the report of a very good committee. It dealt with the whole subject and came out strongly for there being a law creating a general right of privacy.
In January, 1970. Mr. Brian Walden's Right of Privacy Bill was the Bill which was appended to the Justice report, and it is common knowledge that it was only when it appeared that that Bill might very well get a Second Reading, whatever 116 the Government said, that Mr. Callaghan then announced that a committee would be appointed. That committee was so appointed and nobody interested in this subject has sat down and gone to sleep about it since then. I remember some interesting days spent at a data bank workshop, promoted by the National Council for Civil Liberties. They were particularly interesting because there were so many manufacturers and operators of computers present. One of the things I learned was that there is no technical difficulty in having a computer with a built-in device which would ensure that the information in the computer is not made available to more than a very limited number of people. That is possible if you tell the computer maker that that is what you want him to do, but you cannot add that device on to an existing computer. In July 1971 there was Mr. Leslie Huckfield's Control of Personal Information Bill. That, I think, was a National Council for Civil Liberties Bill. In February 1972 he introduced it again. Now to our great general pleasure we have this Committee's Report.
Two or three things have happened since the Report was published, because it was published just on a year ago now. UNESCO published a valuable study of everything which was going on in the leading countries of the world in this field. It was a report prepared by the International Commission of Jurists. On April 12 the Swedish Parliament passed their Bill on data banks. One other thing has happened even since then, and that is the publication of the book which I wish I had had available when we were considering old convictions: I refer to Private Lives and Public Surveillance by James B. Rule, who is a research Fellow of Nuffield College and who has this existing piece of research work on certain bodies which have personal information, namely, police surveillance in Britain, and particularly the police record systems, and to whom they are made available and to whom they are not made available; vehicle and driving licences in Britain; National Insurance in Britain; consumer credit reporting in America; and the Bank Americard system in America and abroad.
While thanking the Committee most warmly for their Report, which I generally welcome, there are parts of it which 117 I particularly welcome, there are parts which in my view are a little disappointing in that they do not go far enough, and there are two things which are quite wrong. I very much welcome, first, the recommendation for the creation of a new criminal offence and tort of surreptitious surveillance although some people, including the National Council for Civil Liberties, think it ought also to apply to the police; secondly, the recommendation for the clarification and re-statement of the law of breach of confidence; thirdly, the recommendation for a new tort of the disclosure or other use of information unlawfully acquired; and, fourthly, the recommendation for the creation of a legal right of access to information held by credit rating agencies. But I see no reason myself why such a right should be limited to credit rating agencies. I should have thought that wherever anybody is collecting personal information about other people the people themselves should have a legal right to know what is in that record about them. But I am glad to know that this recommendation is to be accepted by the Government. I did not gather that the noble Lord, Lord Byers, knows any more about this than I do. All I know is contained in a Written Answer to a Question given on the 11th of last month, when the Government were asked what was the policy of the Secretary of State for Trade and Industry,on the recommendation of the Younger Committee that an individual should have a legally enforceable right to access to information held about him.
Sir G. Howe
I accept this recommendation in principle. I shall include in consumer credit legislation which is now being prepared power to license credit reference bureaux and to attach to the issue of licences conditions such as provision of a right of access to information held.
§ Then the Secretary of State was further asked:
§ "What is his policy on the recommendation of the Younger Committee that the agency recommended by the Crowther Committee for the oversight of consumer credit should keep under review the practice of credit bureaux in acquiring and disseminating information and should ensure that developments in recording techniques and in administration take account of privacy.
Sir G. Howe
I accept this recommendation and I shall make the necessary provision in consumer credit legislation now being prepared."—[OFFICIAL REPORT, Commons, 11/5/73, cols., 221-22.]
118 So far as I know, of all the recommendations made by the Committee, these are the only two on which the Government have as yet announced their conclusions.
Before I come to more matters of detail may I say a word on what the noble Lord, Lord Byers, has said about the refusal of two Governments in succession to allow a committee to inquire into what happens when the Government and not private enterprise are collecting information about people. I am not at all surprised that the Committee found, having had their own research work done, that the ordinary public are much more worried about what information Government agencies have about them than anybody else.
§ LORD GARDINER
Here, the public may be exaggerating, or rather I think that we have to differentiate. Government Departments as a whole have a very good record in this field. The Prices and Incomes Board were not technically a question of Government, of Parliament; the Board were not a Government body, but they worked very closely with the Government of which I was a Member. So when they were asked to inquire into the earnings of solicitors, they naturally said to the Inland Revenue, "You know all about this. We don't want any personal material, we don't want any solicitors named; but we want to know what, as a whole, solicitors earn maximum, minimum, median, average, and so on." The Inland Revenue said, Certainly not! Our information is given to us in strict confidence for the sole purpose of enabling the right amount of tax to be assessed, and it would be a gross infringement and breach of confidence if we gave it to anybody." So the Prices and Incomes Board had to send out vast questionnaires to solicitors all over the country to ask them what they earned. I have good reason to think that if, for example, British manufacturers wanted to know what was the most common form of machinery being imported from abroad in order that they may make them here instead, the Customs and Excise authorities would take exactly the same line and say, "The information we have is given to us simply in order to enable us to assess the right amount of duty on an import, and we certainly 119 shan't tell a Government Department, the Cabinet, or anybody else." So where one knows what a Department is doing, its record is good.
There are two worries which I think the public is justified in having: the first is the danger that some day we might have an extreme Left or Ring Wing Government who would think it very convenient if all Government information was on one computer. There would then be on that computer everything about you: your capital, your income, your police record, your state of health both mental and physical so far as reflected in Ministry of Health documents, your social security record, whether you have a car and what your record is as a driver, and so forth. Here we should be getting on towards 1984 and we must be ever vigilant against anything of that kind. One can see the sort of thing that may happen even in a limited field, because in an article on the right of privacy in the New Law Journal of June 22, 1972, it states:In a certain experimental supermarket in America, shopping is done by computer card. The housewife, arriving at the cash desk with her purchases, hands in her card. This is inserted into the appropriate machine, the number on the card corresponds with her bank account, and the total is automatically deducted. However, the housewife is asked to wait a few moments because a technical hitch has occurred. Unsuspectingly she stands there; within minutes a patrol car arrives; she is asked to accompany the policeman to the station; she is wanted for questioning in connection with an offence which occurred three weeks ago. The police, knowing her to be the person they were looking for, simply phoned the computer centre and requested her number. They then notified the supermarket. The rest of the process was simple. The cashier had ten such 'wanted' numbers on the side of her till. The same would have happened had the victim visited her bank or petrol station.One can well understand the difficulties once the different sources are brought together.
Another thing on which I think the public is justifiably frightened is as to what information the Home Office have about individuals. There is this great distinction between other Departments and the Home Office. You know what the other Departments are doing; you know the limits of the information in which they are interested; you know that the Inland Revenue have your income 120 tax return, but nobody knows what sort of information there is on the data collections of the Home Office. Although the law of privacy is part of our civil law, I remember that in my time I did not always apply to the Home Office representative in any debate on the law of privacy for that reason. It is successive Home Secretaries who have been very reluctant to say what should happen in the case of Government information. My recollection is that when this Report was published, if not before, the Government had stated that they were going to conduct their own investigation into such controls as there ought to be on information held in data collections by Government Departments. I have not myself seen any report as to what has happened in that field, how the inquiry is going, whether it is finished, and if so to what conclusions the Government have come.
My Lords, in paragraph 45 onwards the Committee summarised their main recommendations. As we are to have the privilege of hearing from the noble and learned Lord, Lord Pearce, I will not say anything further about the Press, and I do not propose to refer to the call-girl business or their part in it, though the Evening News last night reported: "Heath picks another Peer and a woman". I understand that the news sold the paper very well. It turned out to be a reference to the noble Lord, Lord Windlesham, and the noble Baroness, Lady Young.
I entirely agree with the noble Lord, Lord Byers. I was in a case which came to your Lordships' House about a reference given by a bank. In view of this Report and its recommendation, I have been expecting daily to receive a letter from my bank saying, "Do you wish us in future, where a credit reference is required, to give it to them, or do you want us to refer them to you for authority in each case?" Nobody has sent me such a letter. It looks as if—and I can see that this is the weak part of the Report—while the recommendations are excellent, there is no way of enforcing them and it looks as though the banks are not going to do it. The same, I suspect, will apply to employment and a recommendation for entries into the code of industrial relations. I have not heard of that happening.
121 Another point made in the Report is thatthe universities should have a code of practice in regard to students' personal records and the Committee of Vice-Chancellors should review their policies on the leakage of student names with other information in the university's statistical record.Perhaps we could be told when the noble Viscount, Lord Colville of Culross, speaks or the noble Lord, Lord Byers, replies whether anything has come of that. Paragraph 51 of the Report, headed "Medicine" says:Medicine. The medical profession should take steps to devise and promulgate a contractual clause which takes account of ethical considerations for general adoption where there is likely to be doubt or dispute in connection with a company doctor's records".I think it said that this contractual clause should be negotiated with patients. But who would do it on behalf of patients I do not know, and I should like to ask whether anything has been done about that.
My Lords, in dealing with the police and criminal records I thought, if I may say so, that the Report is too easily satisfied. It says in paragraph 436:It was stated 'with a certain amount of confidence' on a radio programme by a private detective that 99 per cent. of inquiry agents would have access somewhere along the line to police criminal records. He went on to say that there was close contact with police officers at local stations and the practice of exchanging mutually useful information had developed on a quid pro quo basis. The police denied this statement categorically, and in a Home Office answer to a Parliamentary Question this denial was maintained: 'Any suggestion that the police give facilities to debt collectors and private investigators is quite without foundation.' We were assured by the police that the sources of information for private detectives were not police sources.Now, one knows that is wrong; one knows it as an ordinary person; one knows it from company directors who tell one, "Our security officer: we always get him to vet applications for employment; he never has any difficulty in getting anybody's police record. "We now know a good deal more about this whole vexed question, which I have raised before, as to the people to whom, and in what circumstances, criminal convictions, however old, are disclosed by the police, whether authorised or whether unauthorised. At the height of assistant secretaries, the author of this research work 122 made inquiries in the Home Office, and this is what he says:… when questioned about the provision of criminal record data to Government agencies, one of the officials denied that such provision occurs, except 'very rarely' and 'under exceptional circumstances', circumstances which he declined to explain. And yet, standing instructions from the Home Office Police Department require local police forces to communicate as a matter of course the details of convictions of members of a number of broad categories of the British populace. Record of convictions of such persons goes routinely to employers in Government agencies, and to certifying professional bodies in other cases.At a lower Civil Service level, apparently, he got hold of the relevant Home Office circulars. Did you know that if a midwife is convicted, all convictions of offences for which the maximum penalty is imprisonment for one month without the option of a fine or greater, are reported to the General Midwives Board? Did you know that in cases of justices of the peace all convictions are, quite properly, reported to the Lord Chancellor's office; in the case of Civil Servants, all convictions except minor traffic offences; solicitors or solicitors' clerks only offences involving money or property?
Then he says:Another point which the Home Office spokesmen pressed quite strongly at the time of our meeting was their insistence that employers are unable to obtain information from the police on the criminal records of prospective employees. The research has shown this assertion, too, to be faulty, although here the picture is more mixed. It is very common for employers to seek information from criminal records, and the police, for their part, are quite varied in their attitudes towards such entreaties.He went all over the country visiting the regional offices and talking to regional police. He says:Some police officials report providing such information readily under certain circumstances, while others flatly disclaim all such disclosures.… It is by no means rare, for example, for the police to provide advice concerning job applicants to administrators of children's homes or to headmasters of schools.That of course may be quite right. Then he says:There is reason to believe, however, that no employer with resources and patience need go without information of this kind. The police record-keeping system, is, after all, an enormous bureaucratic mechanism designed to provide information on people's criminal records, a mechanism with numerous 123 exits through which such information can flow. It is very difficult to prevent such a mechanism from working for unofficial as well as official purposes. Criminal record offices, for example, answer hundreds of telephone requests each day—the figure is in the thousands for the Metropolitan Office…. It is impossible to prevent in all cases the dissemination of such information to non-police callers even though criminal record office staffs may do their best to do so. Virtually anyone familiar with the telephone number of the regional office and the routines for making such requests can eventually obtain the information he seeks; …The vulnerability of these offices is especially great to former members of the police, who are invariably well versed in the techniques of making such requests. Industrial firms employ retired policemen in large numbers as security officers precisely because of their familiarity with police routines in these and other matters. In many cases, too, the personal ties between these private security officers and their former colleagues make it possible for them to obtain services which would be denied to others.Other things brought out in the book are, first, the wide disparity as to how old the entries are and how long they keep their records. When we are seeking to blame the Home Office one must be fair and remember that we are, so far as I know, the only country which has not a national police force; and, apart from the Metropolitan Police, the Home Secretary has little legal control. He can issue advice, but to a large extent every chief constable is a law to himself. The other thing he emphasises is the enormous growth. If one takes, for example, the fingerprint collection of the Metropolitan Force, in 1910 there were 120,000 entries; and 1930, 400,000; in 1950, 1,138,000, in 1970, 2,154,000. This is one of the untidiest of the personal data collections made by the Government and, as your Lordships know, I have pleaded for some time that what is done should be done openly. That is to say, we should know which convictions are being reported, and to whom. At least then people have a chance of finding out whether or not the record about them is accurate. I am therefore a little disappointed with the weakness of this Report, which appears virtually to have accepted a statement by the Home Scretary that all is well in this field.
There remain the two points with which I strongly disagree. The first is a refusal to have a general legal right to privacy. Justice, in commenting on this, has said—and I agree: 124…we find the arguments advanced in the dissenting reports of Mr. A. W. Lyon, M.P. and Mr. D. M. Ross, Q.C., wholly convincing. Two points in particular which we would emphasise are these:(1) to the extent that there will remain invasions of privacy for which there will be no legal remedy even if the Committee's recommendations are implemented in full—as the Committee itself concedes there will be (paragraphs 33 and 659)—the United Kingdom will remain in breach of the Universal Declaration of Human Rights, the United Nations Covenant on Civil and Political Rights, and the European Convention for the Protection of Human Rights and Fundamental Freedoms. Even leaving aside the contractual nature of two of these documents, all three are universally regarded today as setting standards by which civilised nations should be judged.(2) We cannot accept that the Courts could not be trusted to deal with the conflicts which might arise as between a general right of privacy and other social values, such as the right of free speech (paragraphs 42 and 665). In any society which subscribes to the Rule of Law, it is precisely judges and juries who should be charged with questions of this kind.There are many articles in the legal Press expressing the same disappointment.
Before I leave that point may I say that the Report (I am sure without meaning to) has done an injustice in paragraph 642 of the Report to my vice-chairman of Justice, Sir John Foster, because in that paragraph it says:As one of those rejecting a general remedy, Sir John Foster said, 'that something should be done about what might be put under the general heading of electronic surveillance, data processing and so on'.Reference is made to the debate in the other place on Mr. Brian Walden's Bill on January 23, 1970. I have read everything which Sir John Foster said. He tells me that he has always supported the Justice Report. He is strongly in favour of everyone having a general right to privacy, and I can find nothing in what he said which could have given anybody a contrary opinion. On the contrary, he was inviting the House to ignore the view of the Government and vote for the Second Reading of the Bill, because he thought that giving people a general right to privacy, as the Justice Bill would have done, was the right solution. He said that he was against a committee being appointed, because he said that if we get a good committee, and it makes the right report, what it will recommend is precisely the Justice Bill, and therefore we 125 should do it now. I am sure that what is said in paragraph 642 is quite inadvertent, but it is an injustice to him.
Finally, the second objection is to what is recommended about computerised information, which is very largely that some other body should look at the very problem which the Committee was being asked to solve. A Justice memorandum on that point says:As for the second conclusion with which we disagree, we are convinced that the time is more than ripe for the control of large-scale automated information stores. When we published our own Report in January, 1970, we said that the subject required' early detailed examination' (paragraph 135). Since then, the dangers to which we drew attention in Appendix E have become even clearer, and we would emphasise in particular the following points:—That is why I confess I am disappointed that, in effect, the Committee have done no more than suggest that some other commission should keep a watch on the position.
- (1) even the most general remedy for invasion of a man's privacy is useless if he does not know, and has no means of finding out, that a wrong has been committed;
- (2) computerised information stores differ from conventional filing systems not only quantitatively, but also qualitatively. For instance,
- (a) because of the low unit cost of making and storing records, many records will be made and stored which otherwise would not have been;
- (b) for the same reason, records will be held in store far longer than in conventional systems;
- (c) because of the speed and efficiency with which data can be retrieved and transmitted, data from many different stores can be collated to produce information which could not in practice have been extracted from any conventional store (the problem of the 'inverted file');
- (d) in the absence of effective security barriers and/or an audit trace, unauthorised retrieval of sensitive information from a computerised store is undetectable, at the time of its abstraction or later.
- (3) It follows from the last point that there is no way of telling whether or not, and to what extent, computers are a present threat to privacy, nor will there ever he any substantial evidence about this unless and until they are brought under some form of control."
§ LORD BYERS
My Lords, the noble and learned Lord will realise that the Committee were inhibited by not being allowed to look at the public sector, as he said at the beginning of his speech.
§ LORD GARDINER
My Lords, I have every sympathy with that, and we shall wait with the greatest interest to hear from the noble Viscount, Lord Colville of Culross, which of the several recommendations in the Report the Government accept; whether we may anticipate a Government Bill, and, if so, when and how they propose to implement the undertaking which they gave to the Committee, that they would at least consider most carefully applying to the public sector that which the Committee might recommend to the private sector, and how the inquiry which the Prime Minister set up as to what safeguards there were and so forth in the collection of public data has gone, whether it is complete, and, if so, with what result.
In conclusion, may I say again how grateful I am sure we all are—we all ought to be—for all the work the Committee put into this subject. It is a very important subject. I am quite sure that sooner or later we shall have a general right of privacy. It may be that there may have to be some halfway stage before we get to that point, but there are a great many admirable recommendations contained in the Report; and as nearly a year has gone by, I am sure we are all most grateful to the noble Lord, Lord Byers, for giving us, in spite of national attractions elsewhere this afternoon, an opportunity to consider it.
§ 3.50 p.m.
§ LORD PEARCE
My Lords, I have two points. The first is to congratulate my noble friend Lord Byers on the lucid way in which he opened the debate, and also, more important, on the document which he and his colleagues have produced. This is an important subject and a very difficult one. What is needed, I think, and have always thought, is a comprehensive statesmanlike approach rather than a lawyer's approach to a subject which has so many aspects and so many pros and cons. I think, with respect, that the Committee have studied the matter from every angle; they have weighed the pros and cons, they have put them fairly, and I regard them as having arrived at a fair conclusion. In my view, as a judgment—because that is what it has to be in this difficult and complicated situation—it stands out. So I say no more than to congratulate them on a very valuable Report.
127 The second point, which I approach with some diffidence, because I rather wonder about the propriety of my dealing with it, is the question of the Press. But I have been egged on by my noble friend Lord Byers in opening the debate, and I have been egged on on by my noble friend Lord Colville, who is going to close the debate. So I shall have the temerity to tell your Lordships what has been recommended about the Press and what the Press have done about it, in the hope that if your Lordships think there is impropriety in that you will at once interrupt me.
The whole theory of the Press Council is self-disciplining, the Press Council rebuking editors: and it is the editors who are always responsible, and they cannot get out of it on the basis that somebody else did something. They are the people who are called to the Bar, as it were. The judgments of the Press Council of their misdemeanours, if it be so, are set out, with all the facts, why their action was wrong, and why the complaint was upheld; and they have to print that in their papers. If anybody thinks that that is a lighter sanction than a fine, or something like that, I must respectfully say that he is quite wrong. Think of any of us in our chosen spheres having to get up and publicly set out the facts of a situation in which ex hypothesi we were not at our best, and the fact that your colleagues think your behaviour has been unethical. If anybody thinks that is lightly regarded, I can only say he is underrating the amour propre of the editor. And in fact the editors do publish it.
The constitution of the Press Council, when this Report was made, was that there were five lay members to 20 people who were concerned with the Press; and this Report suggested that there should be a majority. The Committee wanted to get it clearly across to the public that the people who judged them were equally lay and Press. We have doubled the number of laymen on the Council, bringing the total up to 30; and we have an equal number, and have said there will always be an equal number, on the Complaints Committee, which actually hears the matter before the public, so that they can see them there. As a matter of fact there is no question of lay and Press 128 members voting against one another; it simply does not happen that way. And it is not surprising, because professionals are often among the most critical. My own experience of juries is that once you get people into the jury box you can trust Englishmen to integrate themselves and be fairly keen on finding what is a fair answer to the problem. If we were simply to have an equal number of laymen on the Council itself, that would mean losing a very useful organ for coordinating a Press view, which is a valuable thing, especially for instance, if you are discussing something in the E.E.C. In such a case you do want to have a real Press Council. The situation now is that we have a 50–50 Complaints Committee; we have a Press Council with 33⅓ per cent. laymen—and laymen of very high quality. In my view, there is every assurance that things will not be looked at from a narrow point of view at all but will be looked at simply from the point of view of the sensible man in the street.
Other things are referred to—for instance, co-ordinating, so that journalists can have a code, or, if you like, a set of principles that must be honoured, both in the spirit and in the law. By implication the Report indicates that on this immensely difficult area of privacy the Press Council's decisions have been sensible, because otherwise this would have been the moment for criticising them. And they go far wider than any ordinary law on privacy would as to codes of behaviour to the public. The only other point is having an independent commission, for which Lord Redcliffe-Maud and two other responsible people—nothing to do with the Press—actually choose the lay members of the Press Council, from names put forward to them. In fact they did that last week for the coming year. I have done that; I was told to do it and that is my excuse for having done it. But I can say to your Lordships that the recommendations in what we regard as a valuable contribution to this subject were closely studied, and the Press Council have, I think, carried out the spirit of them, and almost entirely the letter of them.
I close with regard to the main subject of your Lordships' debate by saying this. The Report has not flinched from the fact that what you are stopping is the dissemination of truth by a privacy link. 129 Of course, so far as the dissemination of untruth is concerned, it is obviously right; and this country has done it in harsher terms than any other country.
The law of libel can stop people saying things that are untrue. But when it comes to allowing the individual to put round himself an area where he says, "If you say anything about me in that area I shall get an injunction to stop that being said", you are dealing with dangerous things. Only a wide—and it is a very wide—survey of all the pros and cons of this subject enables one really to say whether it is good. The Committee in their Report have said that they fear that it might have more ill-consequences than good; and that, I would suggest, is a very wise decision.
No doubt, when you just look at the thing as a matter you are keen on, you can say well, obviously you ought to have it. I can imagine that when a cause of action for breach of promise of marriage was created, and especially if somebody was inflamed by something shocking that had been done, it was said: why should not a girl have a case if she is jilted, having bought the trousseau with her savings and so on? Yet for decades that was a blot on the English law, because the wrong people used it and the right people did not use it. My noble and learned friend Lord Gardiner was the Lord Chancellor when, by a very wise dispensation, your Lordships' House entirely abolished what on paper was a perfectly just and reasonable cause of action. I mention this only to say that it is the fact that when you are producing a course of action—and it is a far more complicated course of action—for the suppression of various angles of truth, you must have the wisdom to try to forecast the various disadvantages as well as the advantages. When you do that, you make a statesmanlike weighing of the pros and cons. In my view a statesmanlike approach runs through this Report.
§ 4.0 p.m.
§ BARONESS EMMET OF AMBERLEY
My Lords, I should like to make a few observations on the subject brought up so very opportunely by the noble Lord, Lord Byers. I am not in any degree an expert in the matters under discussion. I have not sat on any of the Committees and I am speaking, I think 130 I had better say, from the point of view of the man in the street rather than that of the woman in the street. I think we need not concern ourselves with people who dislike publicity. I myself have always eschewed publicity. It always seemed to me that it mattered how the job was done rather than who did it. There is always someone wiser, abler and more deserving than myself. We waste time on those who enjoy publicity, who court publicity and to whom it is one of the joys of life. I understand it was the ambition of a certain gentleman to have his name put in a little square box in The Times to commemorate his birthday. It is an ambition which I am glad that he eventually achieved, but it seems to me a pity to spend so much time thinking about that sort of thing. However, if it keeps people happy and helps to fill the papers, I suppose that is all right.
The people I am concerned about are those who, through accident or tragedy or being in responsible positions, find themselves willy-nilly in the bright searchlight glare of publicity and are subjected to the merciless probing and even sadistic scrutiny of the mass media. We have to be fair to the rank-and-file reporters who have to make a living by raking in the dirt and the agony for their editors to headline in their papers and for the newspaper owners to cash in upon, but I think there should surely be a limit, and I am sure I have the sympathy of your Lordships in this matter.
There should be a limit, for instance, to the display of grief at a bereavement; and I, for one, resent the persecution by Peeping Toms of a young couple who found their rare happiness, which happens to one only once in a lifetime, shattered; and then the exploitation of some foolish interlude in the private life of someone who is perhaps overstrained by public responsibility. It is true and it is right and proper that we should expect an example from our leaders in this country, and if they leave the "strait and narrow" they have a heavy price to pay, and they pay it.
But surely we ought to come down heavily also on those who sneak, who spy, who work in darkness for profit—the silent invader of the home. Should these people get away free, having pulled 131 down someone who can give great service to the country but who has lost high office through the exposure of perhaps an ephemeral indiscretion? The whole episode leaves a nasty taste in one's mouth and lowers the trustworthiness of newsworthiness. I think that inside spying and bugging unknown to the victims is a poor successor or substitute for the old-fashioned duelling, when one was defending one's honour. At least it was done early in the morning, with a very small audience. My Lords, I hope from what we have heard to-day from the experts who sat on these Committees that the investigations which have been set up and the recommendations which have already been made will at last have some effect on what I think is a very real danger in the private life of our country and which has undoubtedly produced a lowering of public taste and morals and an increase in permissiveness. Not all our newspapers, not all our media, are tarred in this way. One must accept, admire and thank those who have kept the standard which we should like to see spread right round.
§ 4.8 p.m.
§ BARONESS GAITSKELL
My Lords, the noble Lord, Lord Byers, must have had a glimpse into the future when he put his Motion down for debate. We can be very grateful to him. The noble Lord has made the excellent speech, short, clear and full of meat, that we always have from him. The Younger Committee Report could not be more relevant to-day. There is no one better that I can think of than Sir Kenneth Younger to have chaired this distinguished Committee. He has the experience and the moderation, and I agree with the noble and learned Lord, Lord Pearce, when he describes the Report as a statesmanlike Report.
The events in the United States which have reverberated round the world, and the very minor explosions in Britain, have shocked many of us; they have shocked many people. Every day in the last few months we have had something to be shocked about, and I am not thinking about sex scandals. Among the Press disclosures we have had the low wages tolerated by very reputable firms in Britain in their subsidiaries operating in white South Africa, and we have had 132 the Lonrho affair. The Press have done a good job on both those matters in obtaining information for the public of which it is sadly ignorant. Personally, I am usually shocked when I find myself ignorant about such things.
In democratic countries we pride ourselves on our open Government. We hold up the spying and bugging of the totalitarian countries to contempt and ridicule, but in the United States, the greatest and the most democratic country in the world, this dream has lately been shattered. We have been shown an example of government spying on a gigantic scale and have learned of invasions of privacy carried to extremes, accompanied by devices which measure up to science fiction. Technology and electronics have taken the lid off political and financial misdemeanours and abuses. But, my Lords, let us not compare the frank and honest resignations of two of our Government Ministers with the corruption that has been uncovered in the activities of the United States Government. Lord Lambton and Lord Jellicoe have been guilty of indiscretion, and discretion is what we can demand of politicians in office. However, we know that discretion is not the better part of news-gathering. The Press has lately been criticised—and has even been criticised greatly to-day—but I find myself bothered by the conduct of the Government leading up to the resignations of Lord Lambton and Lord Jellicoe. Why was it necessary to have detectives watching a flat, noting that Lord Jellicoe entered, identifying the number of his car and then passing the information to the Government? Entering a prostitute's flat is not a criminal offence and unseemly behaviour need not be treated as criminal behaviour. I wonder who authorised that particular snooping.
As we have heard this afternoon, and as I have said, the Press have taken a bit of a bashing. Everyone, including members of the Press to whom I have spoken, has agreed that secret bugging devices, secret photography, should be illegal and should justly be punished by law. There are very unattractive sides to the Press and broadcasting, as there are to all walks of life. However, it is when we come to such things as cheque-book journalism, the buying and selling of stories and intrusion tactics by 133 journalists, that we enter a rather grey area of ethics. In cheque-book journalism, the main dangers are blackmail and the temptation to publish and repent that are facilitated by the Press. Yet, when we consider the age of mass communication and the encouragement of mass exposure, physical and moral, in which we live, there is a kind of conspiracy between the Press and the public. Most people, among them politicians, actors and sportsmen, love publicity and hate to be forgotten. The Press would not buy confessions if the public were not curious about them and did not relish them. So people are paid all to tell all, in order to satisfy the public's curiosity.
We could all draw up lists of those things which we dislike about the Press and the media generally. They would include the triviality, the intrusion which amounts to an invasion of privacy, and many of the other practices which disfigure a free society. However, all these have to be weighed against the advantages of a free Press. Exposure journalism often justifies intrusion into privacy. I wish it did more to expose financial and political malpractices than private sexual behaviour. The balance between freedom of speech and privacy is a very fine one, though I think there is a difference between eliciting information and soliciting information. We have come to a point where technology will continue to threaten our social conventions, which, after all, so often pass for our morals. We need a stronger Press Council and, perhaps, a code of conduct for the Press, and this the Younger Report makes pretty clear. Most of the recommendations in this excellent Report are wise and not extreme and should get the most serious consideration from the Government. Not only that: the Government should start with them and should go further to curb the excesses of this computerised technological society which now makes inroads all the time into privacy.
§ 4.15 p.m.
§ THE LORD BISHOP OF HEREFORD
My Lords, I wish to join in the expression of gratitude to the noble Lord, Lord Byers, for all that he did in the work of the Younger Committee and for presenting this Report to us this afternoon. May I begin with a pleasant literary quotation showing the feelings of an ordinary man: 134Press me not, throng me not, by your leave I would be private.Jupiter Ammon is a man not then free?…Stand back, you knaves, you buzzing flapdragons,Give me leave to be private…I'll walk free or I'll walk not at all.Those pleasant words are from Roger Rampole's Cheaping, quoted by Rose Macaulay. Your Lordships may think that that is putting the case a little forcefully, but I am glad to say that the Younger Report is quite definite in stating that,…privacy is a basic need, essential to the development and maintenance both of a free society and of a mature and stable individual personality ".That is a quotation from paragraph 113 of the Report.
It is little wonder that, at a time when encroachment on the privacy of individuals has been so obviously growing, there should have been so many attempts to protect privacy by law. The noble and learned Lord, Lord Gardiner, took us through a very considerable body of evidence of that. I understand that there were eight Private Member's Bills in nine years promoted in one or other of our Houses, just before this Committee was set up. None of these, as we know, won Government support and, of course, as we have heard this afternoon, there is considerable difficulty in framing legislation. But now that we have this excellent Report, this massive inquiry, we have some right to expect Government action. Certainly, recent unhappy events will provide some new pressures.
The evidence submitted by the British Council of Churches, which is mentioned in the Report, spoke of pressures of modern life which made the maintenance of privacy more difficult while intensifying the search for it. They reminded the Committee that community participation required some surrender of privacy and suggested that the religious bodies, which included the Jewish community as well as Christian sources…are positively encouraging more openness and less privacy in meeting contemporary needs.That is a quotation from paragraph 106 of the Report. There is a danger, however, that recognition of the obvious truth, that we find acceptable situations which our forebears would have considered outrageous or distasteful, will lead to the quite illegitimate conclusion that there is 135 no case for legal protection, on the grounds that there are no objective criteria to be employed and that the law would be difficult to apply. In some measure, this is the approach adopted in the Report, and I would go along with the two members of the Committee who dissented from this view. The Committee places its trust in the force of public opinion and other pressures, and only incidentally in specific legislation to deal, for example, with the "bugging" issue.
The role of law in influencing public attitudes needs to be considered beyond that. The Committee say in paragraph 35, in arguing against a legal right to privacy, that this is not the way in which rights have been maintained in England. They say:Reliance has been placed on the principle that what is not prohibited is permitted".But this is not a true statement of the real position. As our Church of England Board for Social Responsibility said in its report What is Unlawful?, there is a category of actions to which the law will give no protection while not visiting with penalties. Such unlawful acts—for example. prostitution—mainly comprehend acts once under the jurisdiction of the spiritual courts which were not made criminal offences with the decline of the spiritual jurisdiction. They may be described as acts which the individual is at liberty to perform but with regard to which he has no rights, since it is of the essence of a right that the law provides a remedy when it is endangered. It may be suggested that encroachments on the privacy of persons should be treated by the law as unlawful acts. Any conspiracy to perform them would be liable to penalties, and no contract arising in the course of such activity would be enforceable.
Law can have an effect in influencing behaviour in a particular direction over and above its function in penalising breaches of the law. Its declaratory function would be particularly important in an area like that of privacy, where pragmatic considerations are likely otherwise heavily to influence journalists and broadcasters in particular. It must in fairness be recorded that the British Council of Churches, in its evidence, considered that there was a danger thatonce the right of privacy is legally defined, society's conception of it may thereby be 136 limited to what comes within the legal definition and assume that what falls outside the scope of the law is necessarily to be tolerated.The Report considers the obligation on certain professional people, notably doctors, to maintain confidentiality, and the pressures on doctors who are employees of industrial firms to make available medical information to the firm; for example, to fight an employee's application for compensation arising out of industrial injuries or disease. Here there is a clear conflict between professional obligations and the contractural duties which an employee—for example, a company doctor—may owe to his employer. The situation is possibly also liable to arise with regard to employed lawyers. The Committee suggest that, in general, relationships where information is conveyed with the expectation that confidentiality will be maintained might be protected under the right to take an action for breach of confidence. Those who have read the Report will know that this matter was referred to the Law Commission for clarification. I do not know what the outcome of that reference has been.
The Church's long experience in maintaining the secrecy of the confessional, and in general of confidences entrusted to pastors, is clearly of some relevance to us here. There is some doubt as to whether it is protected by law. The Chadwick Church and State Commission were advised that it was not part of the law but a matter of honour only; but one leading Anglican barrister holds. on the contrary, that secrecy is implied in the provision for sacramental confession in the 1662 Visitation of the Sick. Despite this degree of legal uncertainty there is no doubt on the main issue: that, in its ministry to individuals, the Church has long seen the need to assert a relationship of absolute trust, and that this relationship is not only consistent with, but may actually contribute to, the growth of individuals as social beings. In view of the evidence given elsewhere in the Report—of, for example, the tendency of bank managers to disclose information concerning the financial standing of their clients to third parties without informing their clients—it is important that the Church's particular witness to complete trustworthiness should be borne in mind. This has been referred 137 to in the debate, and with rather disquieting details about what may be happening.
The Vatican Council's Constitution on the Church in the Modern World declares:There is a growing awareness of the exalted dignity proper to the human person…Therefore there must be made available to all men everything necessary for leading a life truly human, such as",among other things mentioned,protection of privacy and to rightful freedom in matters religious".So, just on a lighter note, I was somewhat amused to see from the detailed questionnaire in the Report (perhaps noble Lords have not had time to read all those vast appendices to the Report) that religious canvassers came third out of 13 in a list of positive reaction against invasions of privacy. Your Lordships may well recall a remark, recollected by Canon Russell, heard after an evangelical sermon: "Things have come to a pretty pass when religion is allowed to invade the sphere of private life". I will not take up more of your Lordships' time at this stage, but I greatly hope that this debate will assist in the campaign to consider the protection of those rights of privacy which individuals ought to enjoy. I hope that wise proposals will soon be brought before Parliament.
§ 4.27 p.m.
My Lords, today we are debating privacy, and the question really is: where should the limits be set? Most of my working life has been spent overseas in the Colonial Service, from the 1920s to the 1940s. We were not too nice in our methods, and the aim of British district officers was to be posted a long way from the capital so that we could get on with our pacification and development without risking reports of our enthusiastic activities getting back to headquarters. Therefore little of my own experience is any guide to problems of protection in Britain from over-zealous activities of the London Press. Hence I will deal with two other parts of the Younger Report. But first I should like to pay my tribute to the members of the Committee for their painstaking survey of every aspect of the problem, and especially to the noble Lord, Lord Byers, the mover of to-day's Motion, and the noble Earl, Lord 138 Jellicoe, whose recent resignation I also personally regret; but above all to Sir Kenneth Younger, whose abilities I have had occasion to mark during many years' membership of Chatham House, of which he was a director and I a humble member.
The aspect of the Report which interests me particularly is the section called Part B, the Misuse of Personal Information, which includes credit-rating agencies, banks, employment, the relations between students and teachers and, in particular, the impact of computerisation. Now a number of innocent people are dogged all through their lives by adverse and secret reports of their credit-worthiness, and often this is due to mistakes: two people of the same name are confused, or a repayment of a debt fails to be recorded. They cannot get credit cards— so important in modern life—nor can they get mortgage bank loans; and when one protests to a computer it does not answer. I have had this experience myself with an overcharge by a credit card bank overseas. If a computer does not answer about the trustworthiness of a secret report, one cannot defend oneself. At one time I thought an easy solution was the obligatory print out of the details of everyone named in the computer. I do not entirely agree with my noble and learned friend Lord Gardiner that this is practicable. I do not think that the problem is quite so simple. If it is applied to credit-worthiness then logically it should be applied in other matters.
I wish to deal with two of these in particular. The first is the relation between office employees and the confidential reports on them by their employers. I have had some experience of the difficulty of this as a deputy head or head of small departments of British Colonial Government overseas. There we had to write an annual report on every member of our staff; and that report determined his or her rate of advance by promotion when vacancies occurred. We also had to report to other prospective employers when our own staff left to go elsewhere. Everybody tries to be fair, and one does not want to cripple the careers of young men and women; but most people have weak spots and employers of small units get to know those faults. One tries to correct them through retraining and 139 friendly talks, but one must report them in the annual reports and in letters to other employers when asked for. In a few cases the picture is very adverse and it may lead to a court of inquiry or to conviction, dismissal or forced resignation and black-listing. All this must be recorded in their reports.
I should like to see employees protected against malicious adverse reports, but I do not think it is feasible to let them see their annual reports or to have access to their own personal files, or, when records are computerised, to have a right to a print-out. This is dealt with in the Report in paragraph 325 and there are two recommendations at the end, in paragraph 633, where the Law Commission is invited to clarify the legal position. That I support. Paragraph 623 deals with "the control of information by a responsible person". I have no objection to that, although I think the precendent of the Mines and Quarries Act 1954 is not really a precedent and needs further consideration.
The second problem arises over relations between university teachers and students. I taught in several universities in the U.S.A., in Israel and in South Africa, both at undergraduate and at graduate levels. Wherever I went I introduced a tutorial system, the one-to-one relationship—not group tutorials—and written essays (as opposed to written examination) which were discussed with individual students. That enabled one to assess their capacity and to guess at their potentiality, but it involved keeping very careful personal records on each student, no matter how many there were in the class. Years later I have been asked for confidential reports by students themselves or by graduate schools or by universities to which graduate students apply for appointment to faculty positions.
In 1970, at Warwick University, students' files were seized by the students who were dismayed at some of the material they found. The National Union of Students demanded an automatic and obligatory print-out of all information concerning them in the university records. This is dealt with in the Report in paragraph 338. It is clear, from paragraph 343, that the Committee of University Vice-Chancellors did not agree—and I quote: 140universities are not free to release documents such as referees' letters and headmasters' reports which they have received in confidence from others, and the maintenance of confidentiality in such matters is essential in the interests of both students and staff;I personally consider the view of the Vice-Chancellors to be correct.
Here one must keep a proper balance between the rights of students against malicious reports and the protection of university teachers against disclosure of confidential reports. If such reports are revealed then, as I understand it, the teachers risk being sued for libel. I perhaps am unduly sensitive on this point, for I am at the moment being sued abroad about something published recently on something that happened over forty years ago. If university teachers' confidential reports on students are even liable to disclosure, then I fear that future reports will become drier and drier until they are completely formal. They would then give little guidance to the university whether or not to appoint undergraduates to precious places in graduate schools or even to appoint graduates to desirable faculty positions.
Graduate students and university faculty members are more mature than undergraduates and there is little pressure by them for automatic print-out of the contents of their personal files. Hence, here one can maintain confidentiality without much difficulty; but as far as undergraduates are concerned I submit that confidentiality is essential to the whole process of university selection for a continually growing section of the population, for it is from this section that will come many of the future leaders of the country.
§ 4.38 p.m.
§ LORD BETHELL
My Lords, like other speakers I should like to express gratitude to the noble Lord, Lord Byers, for initiating this debate. This he did with superb timing. I cannot remember a more perfect timing and a more appropriate debate taking place since early in 1971 when we debated pornography in a debate introduced by the noble Earl, Lord Longford. That was the last time that I can recall such a full and attentive Press Gallery.
I think it is impossible in this matter to separate the law of defamation from the matter of intrusion of privacy which 141 the noble Lord, Lord Byers, and his colleagues have been studying. He touched on defamation in his Report. In paragraph 84 he says:the laws on libel and slander…taken together give a fairly comprehensive protection against falsehoods or false implications that are damaging to a person's business or reputation.It would seem self-evident that defamation is the worst sort of intrusion of personal life and privacy. It can, if carried to the worst extent, make it impossible for that person to earn his living; it can even deprive him of friends and of the normal comforts and pleasant things of life. A vicious libel can be as bad for a professional person as is the loss of a leg to a footballer or the loss of a finger to a pianist.
Any man with any sort of responsible job can be damaged by libel, perhaps in an irrevocable way, unless he takes certain steps to put the matter right. The only really telling weapon that he has to hand is the law. But what happens when he goes to law in order to restore himself and to prevent similar intrusions? He is liable to find that the law is slow, disagreeable and expensive. A fully fought case of defamation, involving several exchanges of documents, witnesses, many months of preparation and many months or years of nervous energy can take up a considerable part of a person's working life. It is not a course of action which anyone would lightly embark upon. The blockages which exist in our court system make it possible for a defendant to drag out any sort of legal action for months, even years. While this process is continuing the pressure on the plaintiff to settle the matter, perhaps on terms which are not advantageous to himself, becomes even more heavy. He finds what he has to do most disagreeable. Usually it is a case of one man having to face a big organisation, and in the very nature of the action which he brings his opponents will try to justify what they have done. The only way in which the big organisation can justify their action is to blacken the character of the plaintiff. If they can blacken it a little more or in a slightly different area From the area where the libel was printed, this is not so important; but it is sufficient that they will do this and thereby [...] to the world, to the court and to 142 the jury that they were right to publish the words which they did publish.
My Lords, another point which makes the plantiff's task so disagreeable is the fact that by instituting proceedings for libel or slander he makes himself the victim of any unfair attacks. He declares an open season "on himself. He makes it legally possible for the defendants and their legal advisers to institute inquiries, to make suggestions and to consult friends, acquaintances, enemies and business associates of the plaintiff, and anyone who knows anything about him, under the cloak of privilege. Suggestions which would in themselves be libellous or slanderous are not legally so regarded if made in pursuance of a defendant's case against a charge of libel.
I know that there is another side to the coin. Anyone who has to defend himself in a libel suit is entitled to make proper inquiries and to defend himself in the best possible way in a case which may, after all, be futile and where the defendant may be in the right. But I hope that in the present investigation into the law on defamation solicitors will themselves consider this severe problem and take the most stringent action against those of their number, solicitors and barristers, who overstep the mark; and who, under the guise of pursuing legitimate inquiries in order to further their client's case, in fact compound the libel which has previously been made by their clients.
The other matter is that of expense. I know that this matter is being considered by the Faulks Committee on the Law of Defamation. Clearly it is impossible for the Government to give any indication about the expense in libel actions, but I should like to make the point, about which I have some personal experience, that the plaintiff in a libel case is usually a "David" fighting a "Goliath" when it comes to expense. There is no legal aid provided for him. If he were a footballer and, because of the negligence of a bus driver he was run over by the bus, he could obtain legal aid. If he were a pianist who was attacked and became involved in a fight, he would have a case for damage to his hands. But if he is a professional man whose job has been put in jeopardy because of a libel he cannot obtain legal aid in order to clear himself. This places 143 a very unfair burden on those people who have to take action for libel and who do not have funds and who may be deprived of their livelihood. They have initially to depend on the good will of solicitors and barristers in order to institute proceedings and may very often be compelled in the final analysis to settle the action which they have begun on disadvantageous terms because they simply do not have the funds to continue with their cause.
My Lords, I hope that the Government will consider these points and will remember that it is in the realm of defamation that the most damaging intrusions into privacy can be committed. If there are any ways which may be worked out whereby defamation can be lessened or controlled—not perhaps by fully fought-out libel actions which are very expensive, time-consuming and energy-consuming but in some other way—it would be a great service both to the Press and also to potential victims. Having said that, my Lords, I must say how encouraged I am by and large by the treatment by the Press of certain events which have been called intrusions into privacy. The Press seems to have recognised that certain of its members have overstepped the mark. The principal victim, Lord Lambton, has himself said that he was treated fairly. One understands the temptation put in the path of editors. Our Press, Fleet Street, is an industry which for some years has been contracting. Newspapers have closed. There is a certain pressure on editors and journalists, and on proprietors, to keep up the circulation and to fill newspapers with material which, whether one likes it or not, one knows that people love to read, and will buy a paper to read. There is pressure through advertising for material to appear which will be read. One knows these pressures exist, but the reaction of the Press as a whole has been restrained in recent events and little enthusiasm has been shown for the worst case we have read about, the behaviour of certain reporters from the News of the World. I agree with the noble and learned Lord, Lord Pearce, that there is nothing that journalists and editors like less than the censure of their colleagues. These are professional men and they do not like being told by their colleagues that they have overstepped 144 the mark. Another thing that the events of these weeks have dispelled is the dangerous myth that men who are well known or powerful are fair game. One sometimes hears it said by people who work in television and on the Press that, in the words of President Kennedy, "If you don't like the heat you should get out of the kitchen".
§ LORD BETHELL
I beg your Lordships' pardon: it was President Truman. They are wise words, whoever may have said them. But if carried to their logical extent they are capable of justifying the most appalling muck-raking. Certain people need publicity, and even court publicity. It is part of their job, and it is said that they cannot complain when they are intruded on and when their privacy is destroyed and they are treated in an unfair way. I would suggest that for those who court publicity, and for whom publicity is a necessary part of the job, there is no excuse for treating anyone unfairly or for depriving those who do any job of the basic right of privacy.
I agree, by and large, with the recommendations made by the Younger Committee that certain new laws are called for, but not very many. I agree with the noble Lord, Lord Byers, in the emphasis that he placed on the Press Council. There is one point that arises out of this. What of those journals which have no respect for the Press Council? They do not belong to the Press Council, do not accept the Council's rulings, and certainly do not publish them. I am not talking about the gutter sheets which spring up and collapse month after month, but about established, responsible (in some respects) journals which, nevertheless, are outside the main stream of Fleet Street. Is there not some way in which the Press Council could bring them within their orbit? It may be that these journals would scorn and reject the Press Council; they might regard the Press Council as old-fashioned and a relic of a bygone age. But is it not possible for the Press Council, nevertheless, to judge those infringements of privacy, and particularly those severe attacks on certain people which are made, which are not defamatory and which cannot be covered by the lay of defamation, perhaps by publishing they findings, by publishing regular bullet[...] 145 or by encouraging other newspapers to publish comments which have been made about journals which are not within the Press Council's orbit? It is in such fields as this that I feel a real contribution could be made to bring us a better form of privacy. As the Committee have said, this will not be done by bringing in large numbers of new laws. Many existing laws can be streamlined and improved, or even resurrected, to satisfy most of the needs which we feel exist to protect people's privacy. The Government and the public have the right to know a lot, and it is the duty of the Press and the media to tell the public. But everyone is entitled to basic privacy.
§ 4.54 p.m.
§ LORD WIGG
My Lords, I cannot pay the noble Lord, Lord Byers, a bigger compliment than to tell him that it is at great personal sacrifice that I am here on Derby Day, particularly when I backed the winner at 50–1 and have only been able to enjoy it remotely rather than on the spot. But although it is Derby Day, this is an important debate. When it first appeared on the Order Paper, I had in mind to make a speech to point out one or two what I regard as comparatively minor matters, but I thought that in the light of topicality it was probable that the debate would touch upon the events of the last fortnight: and so it has.
The first point I want to make is this. I have sympathy with Lord Lambton, and I expressed that sympathy publicly last week. I thought that he behaved in a manly way; he took his medicine and did not whine, and for me that is standard that is a basic. I do not know the noble Earl, Lord Jellicoe, very well, but as Leader of your Lordships' House he always gave me a fair deal. I regret that any two men should find themselves where these two men find themselves to-day. But having said that, I want to move on to the subject of double standards. Here in this Chamber and in the House of Commons, I remember two men being pilloried, John Belcher and Charlie Key, by Members on the opposite side of the House. I am old enough in politics to remember the Zinorieff Letter, a forgery that won an election. I also remember the attitude of Lord Beaverbrook over the years: he did not run newspapers; he 146 ran organs of propaganda. I remember his attacks upon Herbert Morrison. I myself have brought no fewer than ten actions for libel, and won them all. They were attacks upon my probity, on my standards of honesty, merely because I had done what I shall always do while I have breath: I had exposed the humbug of the Tory Party. And a great deal of humbug has been talked in the last few days about this subject.
This Report has one great gap. The noble and learned Lord, Lord Gardiner, with his penetrating mind, put his finger right on the spot. What worries people and drives them to the gas oven is not the rumour of what Mrs. Jones next door says, but the fear of that unknown knowledge in the hands of the police or in the hands of investigatory officers. This is where the trouble lies. It has arisen from a Report by a group of Privy Councillors, now almost 20 years ago. I invite attention to the fact that this Report has nothing at all to say about either positive of private vetting. Yet the White Paper, (Cmd. 9175), Statement on the Findings of the Conference of Privy Councillors on Security, is the biggest load of humbug, short of one or two statements in the Defence White Paper, that ever appeared in the English language. And I am not just saying that to-day—in other words, I do not believe in backing winners after they have won, because you do not get paid for that—I have been saying it for the last 20 years. Let us see what it says.
The Report starts with an analysis of the general picture of the security risks with which the country was then faced, and continues:The Conference point out that, whereas once the main risk to be guarded against was espionage by foreign Powers carried out by professional agents, today the chief risks are presented by Communists and by other persons who for one reason or another arc subject to Communist influence.I have taken an interest (or, rather, they took an interest in me, because I was concerned with defence) in all the security cases that have come up in detail since the Crabbe case, and the only case in which the point was made of a person's political background was that of Miss Gee. She was not a Communist; she was rather proud of the fact that she was a Liberal. All the others were professionals; or, if they were card-carrying 147 Communists, it was very much in the background. Miss Gee made a great point that she was good, honest, non-treacherous Liberal. Noble Lords will notice that the emphasis here is on the Communists, and in later paragraphs the authors of the Report say (this is rather a nice phrase) that they put Communism and Fascism together for brevity; they say:The term 'Communism' is used to cover Communism and Fascism alike.Later on, the Report argues for a more extensive examination from positive effort. It lays down the standard of positive vetting, and says:Some of the recommendations of the Conference deal with what may be called the relation between security risks and defects of character and conduct. The Conference recognises that today great importance must be paid to character defects as factors tending to make a man unreliable or expose him to blackmail, or influence by foreign agents. There is duty on Departments to inform themselves of serious failings such as drunkenness, addiction to drugs, homosexuality or any loose living that may seriously affect a man's reliability.I suggest that the question of the conduct of a Minister is primarily a matter for the Prime Minister. The question of the conduct of a Member of Parliament is primarily a matter for his constituents. The question as to whether there are breaches of the law is a matter for the police. I do not agree with the noble Baroness, Lady Gaitskell, in her mention of the surveillance which was exercised by Ministers. She is utterly and completely wrong. I believe that in this part of the exercise the Prime Minister behaved with complete propriety when the news was brought to him by the Security Services—and we must remember that they are not policemen.
This is one of the things that is wrong in the United States. There, the Nixon Administration use the C.I.A. as if they were policemen. They are not policemen: they are charged with carrying out security duties. When the news came to the Prime Minister from the Security Services he fetched in the police, and once he did that his powers to intervene in the matter ceased, because indeed we should be going down the slippery slope if Ministers could give directions to the police on how they should do their job. There must be the clearest division between the carrying out of the duties 148 of the Security Services and the handling of a matter by the police when it comes to them; that is to say, a matter involving a breach of the law.
§ BARONESS GAITSKELL
My Lords, I am not an expert, like the noble Lord. on investigations, snooping, the police, or any of those things. What I think might have happened—and perhaps it would have been much better had it happened—was for the Prime Minister to have seen the noble Earl, Lord Jellicoe, and Lord Lambton as soon as the rumours were prevalent, and spoken to them about it. Then there would not have been police activity and anything in the Press.
§ LORD WIGG
My Lords, the Prime Minister specifically dealt with that in his Statement in the House of Commons on May 24. He said that as soon as the matter became a matter for the police there was nothing more he could do about it; and I think that is absolutely right. I do not claim to be an expert. This is not a question of expertise, I hope the noble Baroness will notice. It is a question of common sense and of just thinking about it. Quite clearly the Security Services have no special powers. If they had, we should be in a very dangerous position indeed. These men are experts in their field: they are men of high integrity. They do their job, as I personally can testify, in a way which should command the respect and support of all of us. They report to the head of their Department, who in turn goes to the Home Secretary or, as in this case, to the Prime Minister. If the Prime Minister, in his wisdom, then holds the view that it is a matter requiring investigation by the police, to the police he goes. Then the job of the police, as happened in this case, is to go to the Attorney General, who then passes the matter to the Director of Public Prosecutions, who initiates criminal proceedings.
In the course of what I shall say, I shall be a little critical of the Prime Minister's handling of the case, but up to this point I believe that he behaved with absolute and complete propriety. My criticism of the Prime Minister and the part of the Report which is lacking—
§ LORD BYERS
My Lords, the noble Lord has referred to the gap in the Report. I wonder whether he has read 149 the terms of reference. The Younger Committee was confined entirely to the private sector, and the members complained that they could not enter the public sector.
§ LORD WIGG
I entirely agree, my Lords. The gap here is not in the Report and I did not imply criticism of the members of the Committee as to the way in which they did their job. The gap was in the terms of reference. I am sorry if I appeared to be talking "shorthand", but I picked up the point made by the noble and learned Lord, Lord Gardiner. He used a penetrating phrase to underline it. I went on from there, and I hope that I may be forgiven for not elaborating further. I believe these points are fundamental: first, the responsibility for security should, must and does rest with each Department concerned. The Department is responsible for its own security. Therefore, the area I am going to discuss is the area of the Secretary of State for Defence.
The other point I would make is this. To my mind it is absolutely axiomatic that each incident that crops up should be regarded not only as calling for investigation in itself, as this one does, but also as a means of learning lessons for the future. This, I hope noble Lords will accept, is my reason for intervening to-day. There are lessons to be learned in this case that go back far beyond this Report, far beyond the case of Lord Lambton and the noble Earl, Lord Jellicoe—indeed, they have been the victims of an outdated, badly-thought-out White Paper. If that White Paper had been brought up to date, or if it had not been in the terms it was, the only question would have been a matter for the Prime Minister to decide whether or not in the circumstances he wished them to remain as Ministers in his Administration or whether they wished to remain Members. There would not have been any question of security involved; but unfortunately the question of security was brought in, together with the question of the competency with which this matter has been handled.
I listened not only with great interest but also with great sympathy to the broadcast interview of Lord Lambton. In the course of that broadcast he was asked whether he had been positively vetted. I remember only too well the number of 150 occasions on which I have been attacked by Members of the Conservative Party—and Mr. Harold Wilson, when he was Prime Minister, was also attacked for the same reason. I now see one or two Labour Members attacking Mr. Heath for the same reason. So I listened to what Lord Lambton had to say on this, and it is as follows:"Lord Lambton: Yes, I think you are vetted: yes, you are.Mr. Day: What do you mean, you think you are?Lord Lambton: Well, I know I was vetted, yes.Mr. Day: But what they call positively vetted?Lord Lambton: Yes.Now this was absolutely frightening, because it meant that if Lord Lambton was right Mr. Heath had changed the procedures without consulting the Leader of the Opposition, telling the House of Commons or the public. But of course Lord Lambton has not been positively vetted.
My Lords, let us see what that means. Here is the most sensitive Department in the State—the one which needs to have the security ring round it, in which the security arrangements need to be monitored all the time (and I can testify to that), in which you need to be alert 24 hours of the day, 365 days of the year, because this is the area which enemy agents will seek to penetrate—and in that Department is the Minister who is in charge of the most sensitive part, the Royal Air Force. So you have the Minister, the political head, who himself is responsible for the security of the Royal Air Force inside the Ministry of Defence—and he knows so little about it that he does not know whether or not he has been positively vetted. The political responsibility rests upon the shoulders of the Prime Minister, because it was clear from the Denning Report that the Prime Minister is ultimately responsible for security. In fact, Mr. Heath's defence is exactly the same as Macmillan's defence: "I do not know". The difference between them is the difference between 11¾d. and one shilling. Both meant that the heads of the security Department of the State, on which we spend colossal sums of money, appoint Ministers and never acquaint themselves with security procedures, and do not 151 know whether or not they have been positively vetted. So how in the name of goodness can they see that others are?
But that is not the whole of the story. Let us move on. Lord Lambton is asked:"Mr. Day: When did you get to know about it?Lord Lambton: Only on Monday.He was then asked:"Mr. Day: When did you first realise that you or your activities had been discovered by the authorities?Lord Lambton: When I saw the police.Mr. Day: This was on Monday of this week?Lord Lambton: Monday of this week.Mr. Day: And you had up to that point no inkling of any kind?Lord Lambton: None of any kind whatso-ever.Mr. Day: It suddenly burst upon you and…on Monday?Lord Lambton: Yes.Mr. Day: And did they come and see you at home or at your office?Lord Lambton: No. The Permanent Under-Secretary of the Ministry of Defence, Sir James Dunnett, came to see me, obviously very embarrassed, and said that the police wanted to see me and would I make the time. So I could not conceive why they wanted to see me so I made the quickest conceivable time it would be possible to have lunch and see them which was 2.15 and, as you know, minute quantities of stuff were found in my house which I have an explanation. It never entered my head that in the time I had which was plenty …I think they gave me any time that day to destroy these things because I had no sense of guilt whatever about them".Lord Lambton's action was the action of an innocent man. But supposing Lord Lambton had not been innocent and at that point nobody knew. The Prime Minister had called in the Security Services and they called in the police. This great Conservative Administration—and noble Lords will remember that every Tory Member of Parliament, perhaps all the honourable Members on that side of the House—
§ LORD WIGG
—will have dreamt of becoming Service Ministers and responsible for security. They handled it in a way in which, in Army terms, when there is a major security matter inside a 152 regiment and the C.O. does not handle it he hands it to the Quartermaster-Sergeant. A civil servant is sent to see a Minister on a totally political and security matter and then leaves it for him to go away and destroy any evidence if he had any.
There is a parallel: that is exactly what happened in the Lonsdale case. The news was broken that Lonsdale, Houghton and Gee had been arrested, and the "birds" flew. If this is how our security is handled, all I can say—and I know what it was like in 1964—is that we are back again to where we were before we cleared it up. This is a very frightening thing indeed. It also means that the terms of reference to the Security Commission are inadequate, because quite properly the Security Commission are going to be asked to inquire into the security arrangements in this incident in relation to Lords Lambton and Jellicoe. They will not be asked to inquire into the security arrangements, or lack of them, in the Ministry of Defence, or the security handling of the problem by the Prime Minister.
So I say once again that these matters throw up something that needs to be looked at with great care. We are spending £3,300,000 million on defence. We may not have many secrets, but the fewer secrets we have the greater the necessity to safeguard them. There is little evidence here of any serious thought about safeguarding. One could be unkind and say that the Prime Minister was not concerned and that he was more concerned about the political issues. I do not believe that; I believe that, according to his lights, the Prime Minister—and I have already had an altercation with my noble friend Lady Gaitskell—behaved perfectly properly in going to the Security Services and then going to the police and leaving the matter to the police to handle. He would have been guilty of grave impropriety if he had attempted to interfere with the police arrangements.
I repeat that it is absolutely fundamental that the functions of the security services and the police should be kept apart. Having said that, and in the light of the evidence Lord Lambton has provided in his interview, I think there is a great deal to be answered. I became interested in this subject because of my life's work and because I am interested in defence. At the time I was in the 153 House of Commons I was brought into contact with the Press. On the whole, the Press "ain't all that bad". There have been very bad influences at work at different times—the influence of Lord Beaverbrook was extremely bad. There have been other influences which have not been too good. If there are noble Lords who doubt what I say, they may recollect that it was a Conservative Prime Minister, Mr. Stanley Baldwin—one of the great Prime Ministers—who said of the Press Lords that they exercised the prerogative of the harlot: power without responsibility. In this case I think that the noble Lord who spoke before me was absolutely right; we should recollect that what has happened regarding the Press is just another mark on the dirty face of capitalism. This is capitalistic enterprise seeking profits.
You cannot expect newspapers to run at a loss; you cannot expect editors to be unmindful of the discipline of the balance sheet, and the race for circulation is so vicious and the pressures are so great that this kind of thing is the result. In other words, it is the application of Gresham's Law: the bad drives out the good. Some of those newspapers who tend to be highminded should remember that those who live in glasshouses should not throw stones. Even "Auntie" Times, for example, has to account for that little squirt Levin. All of them in their turn have something to answer for; but Bernard Levin is an awful lot to ask the noble Lord, Lord Thomson of Fleet, to answer for. I give that as an example.
I want to keep my gratitude to the noble Lord, Lord Byers, until the end. I am extremely grateful to him for inaugurating this debate. I wish he had not done it on Derby Day—but all's well that ends well. What defects there are in the Report are due to the terms of reference. But my words to the noble Viscount, Lord Colville of Culross, are these: I hope that he will go beyond the Report and go back again and study the history—the Cabinet Secretary will dig out a paper for him—of positive vetting and negative vetting.
The procedures are carried out perfectly properly. I am sure. I hope he will see how far it is necessary to go along with the same kind of terms of reference as were enshrined in that White 154 Paper in 1956. I think that those days have gone, in any case.
There are those who clamour for positive vetting—even Lord Lambton, when he says he thinks he has been positively vetted—but what is it after all? It is a negative procedure. There are a host of inquiries which are supposed to be kept secret, but inevitably your relatives will tell you that inquiries are being made about you. That is exactly the point which my noble and learned friend Lord Gardiner made. When people are being positively vetted they "get the wind up for some reason or other when they hear that inquiries are being made about them. I believe this is the kind of world in which we live. There are those who occupy positions of great responsibility and areas of great sensitivity. This is part of the price they have to pay. I do not believe—and I hope that the Prime Minister will not hesitate to throw out the idea—in the positive vetting of politicians. How could it be done? It is not practical.
Mr. Heath wins an Election; perhaps he is not surprised that he wins it, but plenty of people are. He forms an Administration, he draws up a list of Ministers and hands it over to the Security Services to check. They come back according to these terms of reference and say, "A, B and C are all right, but three do not fit the bill". What does he do? Does he sack them? Does he announce to the world that he has made a blunder in three individual cases? Of course not. Their conduct must be the personal responsibility of the Prime Minister. He can take what action he likes, but to put them through the positive vetting procedure, and for the matter to be handled by a civil servant with a power to refuse to give clearance, is just "not on". This is one of the areas at which the Government should look more closely. None of us wants to see two men of the calibre of Lord Lambton and Lord Jellicoe pilloried, not because of the prurient interests of the Press but because the terms of reference of a White Paper were phoney to start with and have been made even worse through the elapse of twenty years.
§ 5.20 p.m.
§ LORD HARVEY OF PRESTBURY
My Lords, following the noble Lord, Lord Wigg, is an experience I have had over many years, going back something 155 like 28 years in another place. I recall many of his speeches when I have always been in agreement. I recall when he advocated National Service against the trend of his Party and I agreed with him. But to-day the noble Lord—and I did not get his exact words—referred to the "glee of the Tory Party at Mr. Belcher's and Mr. Key's downfall". I was in another place at that time and there was no glee in the Conservative Party. I would say that in the other place and in this House there are no two institutions more sympathetic to a Member's problems.
§ LORD HARVEY OF PRESTBURY
My Lords, I am generalising from my memory as it goes back for 28 years. The other place and the House of Lords I say are two very sympathetic institutions. We saw that yesterday in what was said in all quarters of the House about the noble Earl, Lord Jellicoe, and Lord Lambton. On the broader aspect of security, until the Diplock Committee has reported, I think that this matter ought to be left open to be studied and then we could have a full debate on security. Perhaps it should be tidied up. I do not disagree with the noble Lord, Lord Wigg, on that, but the right time to do that is when we have the report in hand.
Looking back over the years at the so-called scandals in this country one can almost count them on one hand. Some have been more serious than others, but none has been very disastrous. But for a nation to go through a period of 30 or 40 years thus does not begin to compare with what has happened in the United States. What has happened here in the last three weeks has no comparison with what has happened in America. We want to await events and to express our sympathy to Lord Lambton and to the noble Earl, Lord Jellicoe.
I too should like to thank the noble Lord, Lord Byers, not only for initiating this debate but also for the hard work 156 and effort that, together with Sir Kenneth Younger and their colleagues, he has put into the Committee. This is a tremendous Report and when reading it one feels that they must have put in many long hours and days in order to come to their conclusions. It is a complex and very important subject and, as time goes on, no doubt there will be further reports on the subject.
The mass media, particularly radio and television, as we well know, have grown enormously in the last 20 years. Television is a most devastating instrument, If one looks at a friend or ever sees oneself replayed back on the screen, there are shown up things that one thought never existed. But I am concerned about computerised personal information, such as mail order lists of names and addresses. In America I am told that the average home receives something like 350 packages a year of ordinary mail from institutions, and so on. In this country the number is something like 60 envelopes a year and it is growing. We as Parliamentarians receive a lot of rubbish which goes straight into the wastepaper basket. That is beginning to apply to individual homes. There are businesses who build up a large mail order list and who sell the names at so much per 1,000. This information is marketable. That trend needs watching. Of course sophisticated electronic devices of all kinds are being marketed. That fact was referred to by the noble Lord, Lord Byers. But where is all this going to end? Science does not stop, and these devices will be improved and new ones will be invented. I believe that some standing committee has to watch what is being used in this direction with electronic devices.
The Report says:Press and broadcasting organisations see themselves as the watchdogs of the public in investigating and exposing conduct of many kinds.…This may involve the reporting of intimate details of the lives of individuals which would not normally be thought of as being in the public domain.What has impressed me in recent months is the attitude of the B.B.C. in Ulster. Frequently programmes have been slanted against the armed forces and against the Government of the day. There has not been a fair representation. I know that protests have been made to 157 the B.B.C. but a national organisation such as the B.B.C. ought not to have the power to continue misrepresenting what is happening in what is virtually a civil war.
If a newspaper gets out of step, the matter goes to the Press Council, but apart from its findings nothing much happens. The findings are sometimes printed in a rather obscure part of the paper. Some years ago I remember I was sailing around Brittany with my wife and two children with two friends in their boat. Towards the end of our holiday we put into Deauville on a Friday night and left on the Saturday morning tide for Le Havre in order to come home at the time of our choice. A national newspaper on Monday morning said that on the Saturday evening I had dined with King Farouk and all sorts of other people. I had never met the gentleman and had no desire to do so; but that information was reprinted in my constituency newspapers and I had the greatest difficulty in getting a correction in the national newspaper. I eventually got a correction, but it was in small print and tucked away at the back of the newspaper. My local papers hardly printed it at all. But a month had elapsed and the damage had been done. Of me, a politician, my constituents could say, "Here is our Member hobnobbing with those people in Deauville. We never thought he would do those sort of things." On looking back, perhaps the incident was not very important, but, somehow or other, when they have made a mistake the Press should be made to apologise or make a rectification which should be given equal prominence in the newspaper in which the original case was reported.
My Lords, we have had reference this afternoon to the constitution of the Press Council. Part of that council's membership should be drawn from outside the Press, but it must not cut across the freedom of the Press. We have probably the best Press in the world when compared with other newspapers elsewhere, in North America and on the Continent. But I should like at least 50 per cent. of those serving on the Press Council to be laymen from outside, and correctly chosen in order to see that fair play is given in all these matters.
158 Then there is the question of the credit rating agencies. Some of these organisations are questionable and the individual should have a legally enforceable right of access to the information held about him by a credit rating agency. As has already been said, electronic equipment and its performance will undoubtedly advance in the future and the public will need protecting. Also, computer users should voluntarily agree to certain principles for handling personal information on computers. I believe that the Government should legislate to provide themselves with machinery, such as a standing commission, for keeping under review the growth and techniques of gathering and handling personal information on computers.
By and large, British banks are respectable, but I should like to refer to the practice of banks giving other banks private information in response to inquiries on behalf of customers; confidential opinions as to the creditworthiness, reliability and standing of those who bank with them. The banks will say that that is confidential between one bank and another, but it is absolutely wrong for one bank to communicate with another bank about one of its customers. I heard of a case recently where such a thing was done, and I believe it to be true. The banks have to be completely ethical in dealing with these matters. We want a good code. It exists in the main and I am not being unduly critical, but it needs watching.
This has been an interesting debate. As I said earlier, we want to maintain the freedom of the Press and of television. By and large, our newspapers are absolutely first-class. I do not know of any country with better. We want to bring about the things that matter, but also to maintain the freedom of both television and the Press.
§ 5.30 p.m.
§ LORD DONALDSON OF KINGSBRIDGE
My Lords, the noble Lord, Lord Harvey of Prestbury, complained of his treatment by the Press. I do not blame him, but I think that the noble and learned Lord, Lord Pearce, gave us some reason to suppose that this will not happen again. If we can take the two main recommendations of this 159 Report—first, that 50 per cent. of the Press Council should be laymen—the noble and learned Lord told us that he had not agreed to that but that the Press Council had agreed that 50 per cent. of the Complaints Committee should be laymen. This it seems to me is what matters. Personally, I should be satisfied with that, though I agree with the general point. The other point is that in the event of the Press Council making an adjudication, what Mr. Asquith once described as the peccant journal should be forced to publish it equally openly and with the same prominence as the original item. This, it appears, the Press Council have accepted and, from what the noble and learned Lord told us, are enforcing. So I think that on the whole this goes a long way to meet what I require from the Press and what I think the noble Lord, Lord Byers, and the Kenneth Younger Committee were recommending.
I think the most important recommendation of the Committee is the new tort and the new criminal sanctions for electronic devices, et cetera. It is quite simple; I think it is very good, and I shall say no more about it. I think the House is agreed that this is something wise and important. The difficulty is that privacy is, in one way at least, like pornography, that it is not really amenable to legislation, and on the whole I think the Committee very sensibly have taken this view. I am inclined to support the view that it would be a mistake to have a legal right to privacy in spite of the fact that I very seldom disagree with what Justice recommends. I was impressed by the comment made by the noble and learned Lord, Lord Pearce, that once you start legislating in order to stop people saying what is true you are on very dangerous ground. And, of course, in the end all these questions are questions of taste and morals. You cannot forbid me by law to say what is true, but if I sit down to tea with somebody who is very ugly I do not tell him so. One must observe certain social rules and these are the rules which it seems to me are in danger of being broken.
My Lords, in regard to the Press, I should like to go a little further. I believe—and here I follow the noble Baroness, Lady Emmet of Amberley— 160 that by far the most sensitive and tender corner of privacy is private grief. I think the behaviour of television in this respect is time and again inexcusable. I do not think this can be corrected by legislation, but I hope that the strongest words I can think of to go out from this House, echoing other noble Lords who have spoken, will have some effect. It is by far the most shameful part. The curious thing is that it is not even the excuse of the salacious investigation of sexual affairs which, whatever my noble friend Lord Longford may think, the public simply loves—and there is an excuse for a newspaper doing this. It started many years ago. Going back 200 years your Lordships will remember Dom Basilio saying, "Oh! how delightful" when the Count pulled the rug off the chair and Cherubino is found out in the first Act of Figaro. There has always been a joy in this kind of salacious situation and it is perhaps asking too much of people who are making money out of it not to pursue it. But there is no joy, my Lords, in seeing widows crying, in seeing bereaved mothers being cross-questioned. I cannot speak too strongly about it, and I hope that taste and morals, in which this House to some extent should be leading, will have their effect.
However, what I have really come to talk about is something which has been touched on several times but has not been dealt with in detail—that is, the credit rating situation. There are two sorts of inquiry which can be made if you are trying to sell something to somebody. The first is a negative inquiry, which generally speaking in this country is dealt with by the credit rating bureaux. They record public factors. They record judgment summonses and that kind of thing against names; and any salesman who does not avail himself of this negative information is very foolish. At the moment, I think the positive information is almost entirely confined, with one or two exceptions, to the banks. Of course the information they give is absolutely useless because it is so very guarded, yet in doing this they are, as the noble Lord, Lord Harvey of Prestbury, said, committing a clear breach of confidence. It is one of the most foolish situations there has ever been and it is the result, of course, of the intense complacency of 161 the very successful life that bankers have led for the last 200 years. But that is by the way.
There are two recommendations which the Committee make and I think they apply to both these sources of credit information. The first is that anybody who is recorded in a credit bureau or anywhere else should have the right of access to what is written about him. This of course implies—though the Report does not say so—that he would have the chance to correct this information. I think we may take it that most false things said about people in this way could be corrected like that. Secondly, he should be told when a question is asked about him and given a copy of the answer. This is not a recommendation and in my opinion it should be. I think that both with the credit bureaux and with the banks, whenever a question comes in, a 2½p stamp should be spent on sending a copy of the reply to the person about whom the question is asked. This is all perfectly all right if one can change a little the attitude of people towards credit transactions. It is, I suppose, reasonable to want to protect one's private affairs in so far as one's earnings are concerned. I do not think one can grumble at that, but one must remember that civil servants, for example, are paid according to grades—you can look it up in a book. The Armed Services salaries are all published and can be found out by anybody. The trade unions mostly negotiate publicly their rates. It is really only the higher executive in business who seems so fearfully sensitive about this point, and I must confess that recent events suggest that he may be wisely sensitive about it.
But one should realise that the minute a person enters into a transaction the situation is entirely changed. If I want to buy a house for £350,000, surely the man who is selling it to me is justified in asking what I am going to use to pay for it. In fact, there is in my opinion a duty on the seller to inquire as to the creditworthiness of the buyer, and in the higher echelons of transactions this does not matter a bit. The duty is from the agent to the man who is instructing him. But as you go down the scale you run into great difficulties. For example, with the doorstep salesman, the high-pressure salesman, you find that on the one hand 162 you are legislating to protect the privacy of a man's income and to make it more difficult for people to find out what his income is. On the other hand, you find that it is probably necessary to legislate that anybody who is going to force a sale on an unwilling buyer must find out what he is worth. This point, of course, was raised by the Payne Committee, raised fully and admirably discussed by the Crowther Committee; and sooner or later it is going to require legislation.
There are two points which I think are worth making. The Crowther Committee say that it is a matter for repeated comment in the courts that credit is extended without inquiry to those who should never have received it, and a witness before the Payne Committee said, "Sometimes the same creditor is issuing judgment summonses against a debtor while he is persuading that debtor to accept further credit". It is the other side of the penny. It is not strictly within the terms of this debate, because it is not a question of privacy. But one cannot discuss privacy without discussing credit inquiries, and one cannot discuss credit inquiries without discussing the sort of forced salesmanshp I am talking about. We have talked about aggressive Pressmen, and they have come in for some bad words. I think we must reserve the same criticism for aggressive salesmen. But if there were to be a machinery by which creditworthiness could be easily ascertained, and if people were not so extremely sensitive, expecting their appearance and accent to entitle them to credit wherever they go, instead of saying, "Of course inquire at once about me, so long as you tell me what you get", we could change the general attitude. Firms doing business, of course, above all things, want to do business with people who will pay. There is something to look into here.
In conclusion, there is one point which it seems to me the Committee did not cover, which is a point of growing importance, and that is the question of opinion polls. I have some connection with people who run opinion polls, and these people are very concerned that they should have a proper code which does not involve interference of an offensive kind with people's home life, which probably gives the people asked for information the right to hear what the results of the 163 poll are and so on. This is a matter which is missed out of the Report and I think it would be helpful to remember it.
In regard to credit status, credit bureaux, banks and computer data banks, in my opinion, in this particular element of credit the rules are perfectly simple. There must be legislation, first of all that there must be licensing—otherwise it is impossible to control. Secondly, you have to have access, as recommended by the Committee, for the person reported on. Thirdly, a copy must go to the person on whom the report is made each time a report is made. These are perfectly simple things to bring into the law, and I hope that this will be done. I hope very much that we shall hear from the Government that this is the kind of thing they are going to accept from the Report. My last point is that in yesterday's Second Reading debate Lord Airedale, Lord Jacques and others asked, rather sadly, how soon we were going to hear something about the Crowther Report. Some of the recommendations in the Younger Report depend on the appointment of a Crowther Commissioner of Credit. I do not know whether the noble Lord thinks that the new Director of Fair Trading will be the same, or could be the same, or whether there will be another body; but I think the existence of such a Commissioner is absolutely essential to the kind of field I have been talking about. I congratulate the noble Lord, Lord Byers, on his very clear exposition of an extremely thorough report, and I hope that we shall see some action before very long.
§ 5.43 p.m.
§ LORD HANKEY
My Lords, the noble Lord, Lord Donaldson of Kingsbridge, in a very interesting and instructive speech, if I may say so with all respect, said that he was stating the other side of the coin; and he certainly did that very effectively. The noble and learned Lord. Lord Pearce, drew our attention earlier to how very difficult many of these questions are, particularly where it is a question of the extent to which we are prepared to suppress the truth. I want to state the other side of the coin in another respect, but in doing so I have necessarily, like the noble Lord. Lord Wigg, to bypass the fact that this Report does not deal with the public sector.
164 Frankly, we have been talking to-day in our debate about the dangers to individual freedom and privacy. The point that strikes me is the danger which we are in from the spread of terrorism and subversion, kidnappings and hijackings. Your Lordships may say, "Well, this does not happen much in our country." My Lords, Northern Ireland is part of this country, and we have a state of affairs in Belfast about which I think British opinion has been inexcusably complacent. These people have murdered each other and shot each other, with the support of civilians, for years now. When the troops approach, the ladies in the area beat their dustbin lids with great vigour, but if there is a gunman in the top of the house they do not dream of beating any dustbin; they just keep quiet about it. There must be hundreds of families who have lent themselves to this.
I do not want to have a debate about Northern Ireland. I earnestly hope that the Government's White Paper and the current elections are going to lead to a better result, and I think the Government deserve every credit for the line they have taken. But what I do want to say is that as a matter of history I think we have been very wrong to use troops. The reason I say this is because, when we break up the I.R.A. and drive them out of Northern Ireland, as we infallibly shall, where are they going to go? They are not going to be welcome in Canada or the United States. Not even Senator Edward Kennedy is going to welcome those guys. I think they will come to the United Kingdom, and it seems to me that we shall have to look out for trouble in Liverpool and Glasgow, and no doubt in London. Are we then going to use the Army? Are we going to have rubber bullets hitting women in the head in the streets of Liverpool? Are we going to have our troops hiding behind shields and having brickbats thrown at them in the streets of Islington and Glasgow? Because if this happens I think it will be entirely wrong.
The answer to this sort of subversion is not the use of troops. It is the use of effective police, and the police intelligence, and the intelligence authorities in general have to have the use of many of the techniques and devices which we have been condemning to-day. I do 165 not like these devices any more than anybody else does. But when we have murders all over the place and shootings in the streets of Belfast, I think we have to consider which is worse, to have disorder or to have effective means of combating it.
You may ask why I think that these methods are better than using the Army. I have had a strange career. I have had a good deal to do with Palestine; I have served twice in Egypt; I have served in Hungary and Poland and Spain and various places. I assure your Lordships that the effectiveness of a police force varies directly with the proportion of it which is in plain clothes and with the means which they are enabled to use. I have been very concerned lest the result of the Watergate affair, scandalous as it is, and the affairs of this country in the last few weeks, and indeed our very important investigations into privacy, should have the effect of making it harder, even perhaps illegal, for our security intelligence and police authorities to use the methods which I believe are necessary to protect this country against events which may otherwise spread from Belfast to the United Kingdom. I do not like saying this. It is a beastly subject. But I believe it is necessary in order to correct the general line of this debate, with all of which I have previously agreed.
Your Lordships may ask: do I then favour a Police State? The answer is that emphatically I do not. I have lived in too many Police States abroad. But I do believe that a modern State has to have the power to protect law and order and the private security of the citizen. And if that is not a breach of privacy, I really do not know what is.
§ 5.50 p.m.
THE MINISTER OF STATE, HOME OFFICE (VISCOUNT COLVILLE OF CULROSS)
My Lords, I hope that the noble Lord, Lord Byers, and Sir Kenneth Younger and their colleagues on the Committee will feel that this afternoon's debate has done their Report justice. My respectful opinion would be that this is so, and that the noble Lord will have been well pleased, not only with the tributes paid to the work of the Committee, but also with the thoroughness with which the House has discussed practically all the issues, I think, that were raised in the 166 Report. Certainly the Government are extremely grateful for the work of the Committee, and indeed for the views that have been put forward in debate this afternoon. Perhaps I could deal very briefly with three speeches which seemed to me to be a little out of the main stream of the discussion this afternoon.
First of all, a part of what my noble friend Lord Bethell said about definition, which of course we will consider, might perhaps be better reconsidered at such time as we can see exactly what is recommended in the Faulks Committee Report. However, I take the points the noble Lord has made. Then there is the speech of the noble Lord, Lord Wigg, who I am sorry to see is not at the moment in his place. I am sure my right honourable friend the Prime Minister will be very glad to have received the approbation he did from the noble Lord, and I must leave it to my right honourable friend to analyse and assess the validity of the noble Lord's criticisms, and also the criticisms or suggestions about the terms of reference of the Security Commission—if, indeed, there is still time for further changes of that.
The noble Lord, Lord Hankey, was really making an appeal, I think, to my right honourable friend the Home Secretary not to relax vigilance in certain areas, and this is something I feel is very close to the mind of my right honourable friend and to his intentions. I will certainly see that if we have to deal specifically with members of the I.R.A., what the noble Lord suggested will be considered very carefully.
My Lords, that apart, we have had a very full discussion on the Report of the Committee under the chairmanship of Sir Kenneth Younger. I am glad that the right reverend Prelate made the point that there is this human need for privacy—indeed, the whole of Chapter 6 of the Report is about this. But the Report, of course, is not a single package which the Government can accept or reject as a whole, and it is not really a blueprint for comprehensive legislation either. About half of the recommendations are not addressed to Government at all, certainly not in legislative terms; and, of course, we have heard a great many remarks about some of the other bodies addressed, such as the Press. There I am very glad that I egged on the noble and 167 learned Lord, Lord Pearce, because I think his exposition of what has happened since the recommendations were made comes so much more authoritatively and so much more clearly from him than it could have come, second hand, from me. I am very grateful to him for explaining what has been done.
Then there is the position of the broadcasting authorities mentioned by the noble Lord, Lord Byers. There has been a certain amount about the banks and I note that the noble and learned Lord, Lord Gardiner, with his memories of Hedley Byrne v. Hillier is still not satisfied on this; and neither was the noble Lord, Lord Byers. There were also comments on the universities. The trouble is that if I attempt to comment on all these things I shall never succeed in saying anything at all unless I keep the House until half-past seven. So I am wondering whether it would not be better, although I appreciate that these are very important affairs, if I did not try to report progress on them, but were to attempt to deal with some of the points directly addressed to Government and to do what the noble Lord, Lord Byers, very much wants me to do—that is, to see whether I can say a little about how things are progressing.
The first matter is the general right of privacy. The noble and learned, Lord, Lord Gardiner, and the right reverend Prelate, I think, came out frankly in support of this, but the noble and learned Lord, Lord Gardiner, will remember that the Government in early 1970 found that the Bill which was introduced by Mr. Brian Walden, with its general right, had certain fundamental objections. In the Preface of the Report we are discussing, the speech by the then Home Secretary explains what those objections are. At that time the noble and learned Lord was Lord Chancellor, and I imagine that in those days he agreed that what Mr. Callaghan said was right; the Government found it difficult to accept the general right of privacy, and that was why the whole matter fell to be discussed, in the first place, in the forum of this particular Committee. The question whether or not to make such a fundamental innovation in our law is undoubtedly a major issue; and it would be a fundamental innovation, too, because 168 the creation of general rights of this sort is not really the way in which the English law has ever, over all the centuries in which it has developed, sought to protect the rights, or perhaps the freedoms, of individuals. And since we are not operating under a written Constitution, we do not find, for instance, that freedom of speech, freedom of conscience or freedom of the right of free assembly is guaranteed by any statutory provision. Yet it does not appear that these freedoms are any less secure for that.
As a small divergence at this point, Lord Gardiner's references to the Universal Declaration of Human Rights and the European Convention are not necessarily to be complied with only by enacting a general right. This may be suitable where there is a Written Constitution, but I do not think it necessarily follows from that that the British way of doing it, by attacking it perhaps piecemeal, is in any way flouting those two important documents. Of course, the majority of the Committee agreed with the previous Government, and they found first of all that there was no evidence that there was a substantial mischief which justified the introduction of a general remedy. They recognised that there were some forms of intrusion on privacy in respect of which, even if the other recommendations were implemented, an individual would still have no specific remedy, but they concluded that the dangers here were not sufficient to outweigh the disadvantages which they thought would accompany the introduction of a general right. They thought it might put at risk—and other noble Lords have echoed this—some of the other freedoms of speech and communication which are at any rate just as important. They spoke, too, of the dangerous uncertainty in law if the courts had this wide jurisdiction to adjudicate between individuals' rights of privacy—which would be very difficult to define in Statute—and the almost inevitable claim of public interest which would be raised by someone who had intruded on it and was then having the matter adjudicated in front of the courts. They thought that the courts would have an almost impossible choice of judgment to make which they would find, without clear legislative guidance, very difficult indeed.
There were the two dissenting members of the Committee, and I think their case 169 has been strongly supported this afternoon, certainly by the noble and learned Lord, Lord Gardiner, and the right reverend Prelate. I hardly need remind the House what their case was, although again I do not wish to minimise the importance of what they had to say. The arguments on both sides are inevitably speculative and the Government, like the Committee itself, must take their own decision in the light of their assessment of the probabilities rather than any known facts. At the moment we are still looking closely at the arguments on both sides, and we wanted to hear what was said this afternoon. We will pay particular attention to what has been said by those, like the noble and learned Lord. Lord Gardiner, and the right reverend Prelate, who spoke in favour of a general right of privacy and the fairly strong views of the noble and learned. Lord. Lord Pearce. and the noble Lord, Lord Byers, himself against any such innovation in the law.
Closely allied to this, however, is the question of the law on breach of confidence. Certainly for a full legal appreciation of this matter, so far as it can be taken at the moment, one has to look at this extremely interesting Appendix I of the Report, which sets out as much as is known on the subject at the moment. Indeed, it sets out all the law, so far as I can make out, both North and South of the Border, which applies to privacy in any way. What the Committee said was that the Government should refer the law on breach of confidence to the two Law Commissions for their views on clarification and for a statement on a legislative form. The Committee said this because they thought, first of all, that action on breach of confidence offers, or has the potential to offer, greater protection of privacy than is generally recognised. Indeed, one looks at some of the things in Appendix I and one can see the potential there. They told us secondly—again if one looks at Appendix I one can easily see why—that it would not be satisfactory to allow this branch of the law simply to continue to develop in haphazard form through the judgments of the courts in the particular cases and on the particular sets of facts that happen to come before them. The Government believe that it is a most useful 170 recommendation to refer this matter to the two Law Commissions, and I am glad to be able to tell the House that both the English and the Scottish Law Commissions have been asked to consider this recommendation and the related one that there should be a new tort of disclosure, or use of information unlawfully obtained. We shall all await—and I hope we shall not have to wait too long—with great interest the outcome of their work.
I have already said a word about the speech of the noble Lord, Lord Wigg, and I did mention that I would see that his suggestions about the terms of reference of the Security Commission were passed on, and I was just seeing whether the note that has been passed to me indicates that those have been announced. I do not think that it says any such thing. It may be that there is still time. I am sorry that the noble Lord was not here, but I told the House that what he said to the House was really a matter for my right honourable friend the Prime Minister, and I hope that he will read the OFFICIAL REPORT to-morrow.
VISCOUNT COLVILLE OF CULROSS
My Lords, among other of the topics that have been richly dealt with this afternoon is that of credit-rating agencies. The noble and learned Lord, Lord Gardiner, touched on this subject too, and was perfectly accurate in identifying the announcement that my right honourable friend the Minister for Consumer Affairs made on May 11 last. He told the House what it was, and I need not repeat it. That being so, we are due to have legislation on this matter. I note that my noble friend Lord Harvey of Prestbury had some points on this matter, and certainly the noble Lord, Lord Donaldson of Kings-bridge, on things which partly touched on this aspect of the Younger recommendations and partly went wider. It seems to me that I cannot at the moment go beyond what my right honourable friend announced last month, but as there is going to be legislation on this matter there will be plenty of opportunity for noble Lords who have taken great interest in this subject to see whether the various aspects they have in mind are properly covered by the draft of the Bill 171 as it comes forward. There, at any rate, some progress is being made along lines that have been universally welcomed this afternoon.
I might say one word about private detectives, because the noble Lord, Lord Byers, wanted to know a little about that aspect. I understand that he was really saying again this afternoon what is in the Report, and that is natural. The object is to keep out those who are—I think he put it—the "small dubious minority". The difficulties about this are in fact dealt with in the Committee's Report iself. The last part of Chapter 16 touches upon two or three fairly substantial difficulties. While we have a good deal of sympathy with the objects that the noble Lord has repeated to-day, we are a little doubtful whether their scheme is the best way of achieving those objects, and so we are having to give rather careful attention to this problem to see whether what is recommended in that Report is the right way to go about it. Consequently I am afraid that this is taking a little time.
We have had a large number of speeches on computers, some of them directly on points in the Report and others which dealt with what is becoming increasingly a computerised society. I think that the noble Viscount, Lord Samuel, when he was talking about a number of aspects of the print-outs from computers and the right that people might be given or, in his opinion, in some cases might not be given, to see what the computer had in it, was touching on a substantial area. Let there be no doubt about it, the Government fully recognise—it was not our fault that the Committee had their terms of reference confined to the private sector—that the public sector is here just as fully, and perhaps more fully, involved. I am sure that this is the point that the noble and learned Lord, Lord Gardiner, was making in this section of his speech, and my noble friend, Lord Harvey also touched on this subject.
The Committee, dealing as it inevitably did simply with the private side, made various positive suggestions, and these are in Chapter 20. I need not rehearse them because those who have spoken on this subject have done so already, or have plainly read everything in that chap- 172 ter. When the Report was published my right honourable friend the then Home Secretary, the Member for Barnet, announced that the Government intended to publish an account in which it would announce its own conclusions both on the Younger proposals for the private sector and on our own review of the privacy of personal information held in Government computers. That is really the answer to the noble and learned Lord, Lord Gardiner, on this point. This material is now in the course of preparation, and there is one other thing I have to tell him in a moment. In it we want to take account of what has been said to-day, but we have taken account of the reaction so far to what the Younger Committee have had to say on the private sector.
We have been considering the implications of what is said in this Report about privacy in relation to personal information where the information is held in the public sector computers. We have to give our views on the need for further safeguards to protect privacy in both areas. Consideration of these issues has involved consultation with outside bodies as well as a good deal of departmental discussion, and it is proving a substantial task. No date has yet been fixed for publication, but the work is urgently being pursued with a keen awareness of the importance of the issues, and it is certainly the intention to publish the document later this year. I hope that this will go some way to correct the balance which the noble Lord, Lord Byers, drew attention to, whereby the public sector has simply not been dealt with at all in the course of the Committee's consideration.
The noble and learned Lord, Lord Gardiner, also referred to the question of what information there is. In the same announcement that Mr. Maudling gave last year he said that the inter-departmental review of the categories of personal information held in Government computers, and the rules governing its storage and use, is complete. Therefore we have that information, and a report has been submitted. What we have to do is to blend together that information with the policy which will then be applied to it, and one would expect similar policy to the private sector as well. That is the current situation, and I think that is the 173 answer which the noble and learned Lord, Lord Gardiner, may have missed in the announcement that was made last year.
A good deal has been said—and not surprisingly—about bugging and surveillance. I am extremely sorry that the practical demonstration which the noble Lord, Lord Byers, was given should happen in the Home Office. It always seems to happen there, does it not? But perhaps no great harm was done on that occasion.
VISCOUNT COLVILLE OF CULROSS
Then in that case, my Lords, we are only too glad to offer that sort of hospitality. But the noble Lord, Lord Byers, if he did not actually say it to-day, was reported as suggesting to the Press yesterday that had the recommendations of the Committee been implemented in this field, then we might have avoided some of the surreptitious instances of surveillance which have so troubled us lately. He may be right, though I am sure he will be as aware as I am that merely passing a law making something a crime does not necessarily ensure its observance, either by the Levy's or by anyone else. But I cannot really accept this point, because while the general objective of the Committee in this respect must command widespread sympathy and support—and I think the noble Baroness, Lady Gaitskell, supported it very strongly herself—I make no apology for the length of time that we have taken to consider the detailed proposals. As those who have tried to draft difficult legislation of this sort will, I am sure, be aware, it is one thing to identify an area of concern, but it is quite another to ensure that any law relating to a criminal offence —not that it is a criminal offence which always needs particularly careful definition—that is put upon the Statute Book or offered to Parliament is appropriately tailored to deal with the mischief that we wish to stop.
I ask your Lordships to take one of the central elements of the offences as proposed in the Report—for instance, that there should be a set of circumstances in which a person would be justified in believing that he had protected himself or his possessions from surveillance, whether by hearing or by observation, which is one of the criteria. Granted, on 174 the one hand, that there is a need for the criminal law to be certain, and, on the other hand, the vast range of circumstances in which, perhaps, binoculars or cameras—or cameras with a lens such as the noble Lords, Lord Byers, mentioned—might be used covertly, would it be enough to leave the criminality of an action to a court's or to a jury's finding as to whether or not this element was satisfied; whether a person was justified in believing in any particular instance that he had protected himself from surveillance? This is one of the difficulties that one gets into. I can foresee juries having fascinating but perplexed disputes and arguments behind closed doors on how far a person would have been justified, in any given circumstances, in thinking that he was safe from observation. I do not want to offer a view on the answers to these questions, and I want only to indicate that we have thought these points through, or have attempted to think them through, and have found that they need a good deal of anxious thought and some ingenuity on the part of the draftsman if they are to be enacted.
I must also make the point that, in considering legislation of this sort, one has to remember that there are circumstances which would definitely come within the ambit of the proposed offence as defined in the Report, and, indeed, the related tort to any civil law; for instance, the action properly taken by police in the prevention or detection of crime. I cannot believe that any Parliament would wish us to outlaw, for example, the use of binoculars or night vision devices by the police keeping observation on the scene of an expected crime. Again, one cannot blame the Committee for not having dealt with that matter, because that is the public sector and they were debarred from doing so. But it would be wholly irresponsible of Government for us, looking art the matter overall, to fail to take account of that sort of issue and not make sure that any conclusions that we came to covered this whole range of difficulties, both on the definition and on the inevitable number of exceptions that would be necessary.
Perhaps hanging over all of this debate is the matter which has been referred to by many noble Lords, and by noble Baronesses, too—my noble friend Lady Emmet, the noble Baroness, Lady 175 Gaitskell, and my noble friend Lord Bethell, to quote some who have not perhaps had their speeches mentioned by me quite so often as they should have been. We have the topicality for this debate, which has been mentioned, but in a way that makes it particularly difficult to debate at all at this juncture. When we have the memory of the recent unhappy events which led to the resignation of Ministers, the part played in those events by certain newspapers and the things that have happened since, we must beware. It is hardly necessary for me to say that the concern which noble Lords have expressed is a concern which the Government share. But I think the House will understand if I do not on this occasion offer any more detailed comments on those events, or seek to draw conclusions from them.
We now know that the Press Council, enriched as the noble and learned Lord, Lord Pearce, has told us, is to investigate the allegations which have been made about the conduct of the two newspapers. Also, the question whether security has been in danger is going to the Security Commission and the terms of reference, subject to the additions of the noble Lord, Lord Wigg, are probably already being worked out between my right honourable friend and the Leader of the Opposition, and I have no doubt that they will be announced fairly soon. So I suspect that the House would wish to reserve judgment on many of the ramifications of these recent actions and events until the results of these investigations are known; and we have to bear in mind what one noble Lord reminded us, that, unhappily, there is also a criminal charge against one of the persons involved still waiting to be heard. But that does not mean to say that we cannot learn lessons from these events, as the noble Lord, Lord Wigg, suggested, and, certainly, the use of surreptitious surveillance in this affair may have supplied us with some examples. which I think the noble Lord, Lord Byers, and his colleagues on the Committee, found were somewhat difficult to come by. Therefore, it may be that there are valuable lessons to be learned from what has happened.
I hope that I have been able to touch on all the public issues which have been raised this afternoon. I am sorry not to 176 be able to go through the university side, the British Medical Association, the banks and some of the other private sides, but progress is being made in all these fields. Certainly, so far as the Government are concerned, the necessary Departments, where they are involved, have taken an interest in these matters. The situation at the moment may not be immensely satisfactory in terms of results, but I hope that what I have been able to say this afternoon shows that we have certainly not been failing to think about these matters, or to attempt to analyse the problems that have been so lucidly put before us as a result of this most valuable Committee's Report. That is the progress that I can report so far.
§ 6.19 p.m.
§ LORD BYERS
My Lords, it only remains for me to express my very sincere gratitude to those noble Lords and Ladies who have taken part in this debate. I think there was perhaps an outbreak of reticence on the part of the Press Lords. I did not observe that any of them took part, and I did not see many working journalists in the House. Nevertheless, I am grateful to those noble Lords who came along and contributed and I know that their contributions will be marked by the Government when they give their full consideration to the Report. I agree with the noble Viscount, Lord Colville, that this Report was not meant to be a package or a comprehensive pattern for legislation. That is one of our difficulties. We had to take all these different areas in which privacy might be at risk. I certainly do not want to argue in detail again at this stage with the noble and learned Lord, Lord Gardiner, the question of the general right. Far be it from me to say that he is wrong: I merely say that at the moment I am not persuaded that the general right is the correct course, although it may well come. I am very glad that the Government have decided to refer the question of breach of confidence and the unlawful disclosure problems to the Law Commissions. I think this is good. We could not tackle these matters, but it is right and proper that they should.
As to credit rating, I assume there will be legislation, presumably in the next Session, rather than in this. With regard to private detectives, I must say quite openly that we did sense some 177 resistance in the Home Office to the whole question of licensing private detectives. We were not convinced that this was right, but we believe that the licensing system will have to come. I am not saying this critically; it may be that the Home Office have information which we did not get. But I feel that this is an area in which the Home Office, if the attitude they took when they gave evidence is the same now, are not really on the right route here. My Lords, on the question of computers and the work which is being done in the public sector, I quite understand the situation, although I think there is a case for urgency, and I look forward to the reports being published some time this year. Regarding surveillance, we realise the difficulties. One can always find problems for solution. We had arguments, discussions and debates about what the right answer here was, but we were convinced that a criminal offence should be created, and we leave it to the draftsman to try to find the right wording for it. I hope very much that something will be done in this field.
My Lords, I was very grateful to the noble and learned Lord, Lord Pearce, for being "egged on" at both ends—both by myself and by Lord Colville—and I think the debate was a great deal richer for what he had to say. I would make only one correction, and it may have been a slip on his part. We did not recommend a majority of laymen on the Press Council; we recommended an equality. But, as I say, I think the noble and learned Lord made out a strong case for his own concept of the Press Council. The noble Lord, Lord Gardiner, referred to the injustice which had been done to Sir John Foster in paragraph 642 of the Report. This was unfortunate. It was spotted, just after the Report was completed and printed, by Sir Kenneth Younger himself, and he wrote to Sir John Foster apologising profusely. It actually arose from a misinterpretation of a procedural vote in which he voted for the closure in order to get his own business through. Unfortunately, it was a technical misinterpretation.
As to the noble Lord, Lord Wigg, now that he has come back from picking up his winnings on the Derby, I must say that I found his speech absolutely fascinating; but when he describes what has 178 happened in the last few weeks as "the unacceptable face of capitalism and the search by the newspapers for profits", I must say I think that is a bit cool, coming from a noble Lord who, having invested £40 this afternoon, got £1,250 for doing nothing. If that is not "the unacceptable face of capitalism", I do not know what is. My Lords, I take it that the Labour Party is now going to add the newspapers to the top 25 candidates for nationalisation. Perhaps the noble Lord, Lord Wigg, will have a word with his friends, for I do not think he would want a nationalised Press.
Finally, while we have been debating in your Lordships' House I have had a message that a Mr. Dons, who is a very respectable citizen and is very angry and annoyed at having been stopped by the B.B.C. while crossing Hanover Square just after lunch to-day. He had a microphone thrust into his face, and a woman reporter asked him if he had ever been convicted of drunkenness in the street. She said there had been more convictions in cases of people being drunk on pavements in the street than drunken driving. Mr. Dons is a member of the Kew Liberal Group, and is known to a number of us. I have checked that this was in fact B.B.C. Radio London, who were doing it for a news programme. I am not saying that this was an intrusion into privacy; I am only saying that Mr. Dons feels that it was. I hope that, if he sees fit to complain to the B.B.C., he will be given satisfaction.
My Lords, I think we have had a useful debate. Certainly we have got the question of privacy across to certain sectors—certainly to Mr. Dons. My Lords, with that, and with repeated thanks, I beg leave to withdraw my Motion.
§ Motion for Papers, by leave, withdrawn.