Police and Criminal Evidence Bill

HL Deb 02 July 1984 vol 454 cc95-133

House again in Committee on Clause 8.

Lord Inglewood moved Amendment No. 51: Page 10, line 32, at end insert— ("() A warrant under this section may authorise persons to accompany any constable who is executing it.,")

The noble Lord said: I think I am right in saying that this sentence, or something very similar, was included in a version of this Bill. I feel that it would be an improvement if we could put back words to this effect, if not in this clause, then at least in another place, or in more than one place in Part II. The reason is very simple: a man who is named or who is known simply as "any constable" can normally execute a warrant, but there are many occasions when there is an advantage in two men executing a warrant because even if the constable is not anticipating great trouble, he would prefer a witness. It is a great waste of police power that you should have your witness drawn from the very limited number of available police constables. There could again be an advantage in having a second person who had knowledge of the districts where they were going and, furthermore, of the technical business which lies behind the offence and the warrant: for example, where accounts are likely to be found in a house and where the man accompanying the constable would probably have much greater knowledge than the others in sorting very rapidly through accounts and deciding which ones to take away and which have no value. I hope, therefore, that the Minister will tell me that there could be advantages—not on every occasion—where an authorised person is named in order to go with a constable to execute a warrant. I beg to move.

Lord Elton

The noble Lord is entirely right about the desirability of somebody being able to accompany the constable on certain occasions. His amendment woud make that possible under Clause 8. But Clause 16(2) already contains this provision and applies to any warrant, including Clause 8 warrants. So the provision he wants is there—as he put it, elsewhere in the Bill—and the constable can be so accompanied. I hope he will find that that is a reassurance.

Lord Inglewood

I think that what the noble Lord has said meets my amendment. Clause 16(2) says: Such a warrant may authorise persons to accompany any constable who is executing it. I presume that it is the police who give the authority and that if they were not sworn-in special constables, they would be authorised by the police. Perhaps the noble Lord can help on that point.

Lord Elton

If the noble Lord will bear with me, I think that the reassurance I may give him in this case may be qualified by terms which I cannot exactly detect at the moment. The authority is given not by the police, but by the warrant. It will enable anybody to go with the police provided he is authorised by the warrant.

Lord Inglewood

It is written on the warrant and the police can ask for that person. I thank the Minister very much. In view of the circumstances, I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

[Amendment No. 52 not moved.]

On Question, Whether Clause 8 shall stand part of the Bill?

Lord Houghton of Sowerby

I wish to raise a matter on Clause 8. The noble Lord the Minister will not be surprised to know that I am going to relate it to what we did recently in regard to Clause 17 of the Video Recordings Bill, which provides for powers of entry, search and seizure. It seems to me, from what study I have been able to give to the matter, that there are two categories of entry, search and seizure. One is the more complex, difficult probe into possible fraudulent activities and so on, which appears to be covered by Clause 8. This provides for the conditions to be satisfied in the event of reasonable grounds for believing that a serious arrestable offence has been committed. The noble and learned Lord, Lord Denning, in quoting from the supplement to the report of the Royal Commission, suggested to me that the other kind of entry, search and seizure is for prohibited goods and that apparently a whole string of Acts of Parliament provide for this form of remedy in regard to offences, as in the cases of the Obscene Publications Act 1959 and the Video Recordings Bill of last week, which has not yet in fact passed its final stages in Parliament.

What we provided for in Clause 17 of the Video Recordings Bill had nothing to do with "a serious arrestable offence". It was concerned with in certain circumstances having merely trading activities in prohibited goods or outlawed goods; for example, an unclassified video tape. Clause 17 does not even provide for evidence to be given to the magistrate by a constable. It says merely: If a justice of the peace is satisfied by information on oath that there are reasonable grounds for suspecting". It does not even say from whom the evidence on oath might come, but one presumes that it is from a constable. I can quite see that some of the enormous problems, lengthy searches and ransackings of homes and offices that can take place in some cases will probably not apply to the more straightforward and simple case of going in to see whether there are prohibited articles.

But in the case of prohibited articles it does not end there. The noble Lord will remember that I wanted to include in the Video Recordings Bill, in regard to going in to search and seize, a stipulation that there should be some definition of what might be seized. I wanted to restrict it to the prohibited articles, such as unclassified video tapes; but, no, Clause 17 of the Video Recordings Bill states: 17(2) A constable entering or searching any premises in pursuance of a warrant under subsection (1) above may use reasonable force if necessary and may seize anything found there which he has reasonable grounds to believe may be required to be used in evidence in any proceedings for an offence under this Act"). In debate it emerged that they might be looking for trading records. The prohibited goods might not be on the premises at all. It may be that what they may be searching for would be evidence of transactions in video tapes which fell within the offences defined in that Bill.

It seems to me that the two types of entry and search and seizure cannot be differentiated by saying that those covered by Clause 8 of the Bill now before us are the important and complicated kind where the military operations may be mounted, and all the rest of it, and the others littered about in various statutes are the simple kind, where you just go in and smell, or look or whatever and take it out. It is not as simple as that: yet, as I understand it, the provisions of Clause 8 need not apply to seizure undertaken under Clause 17 of the Video Recordings Bill and other similar provisions in Acts which are already on the statute book.

So I now turn to Clause 8(4) which says: The power to issue a warrant conferred by this section is in addition to any such power otherwise conferred. The noble and learned Lord, Lord Denning, said a few moments ago that he was glad to see that there, because what that did was to protect all the provisions of Acts of Parliament which allowed for entry and search and seizure of prohibited articles. My noble friend Lord Elystan-Morgan said that he wanted to protect the right to go to a magistrate to get a warrant for that kind of entry but that he wanted to safeguard the more complex, difficult and sensitive kind of raid and entry by going to a circuit judge.

So we are going to have two lots of authorisations of seizure: one by a circuit judge for difficult cases, so-called, and one by a magistrate for the more simple and straightforward cases. I should imagine, as a matter of fact, that the more complex ones would be on the people of weight and power and the others would be on the simple citizen or the small businessman. I reckon that they would be divided very much into those two categories.

However, what does it mean under subsection (4) when it says: The power to issue a warrant conferred by this section is in addition to any such power otherwise conferred"? Does it mean that it is not in substitution for that? I thought that we were getting in this Bill a standardisation of practice. Complaints were made during the Second Reading of this Bill that there were too many statutes containing provisions for powers of the police and it was desirable to get them all, or as many as possible, into this comprehensive and historic Act when it reaches the statute book.

It seems to me that we are leaving a very wide range of cases of entry and seizure which are not going to be protected at all by this Bill, unless the Ministry are going to assure me that the provisions of Clauses 15 and 16, for example, are going to apply to all cases under any statute and not only under this one. It seems strange to me that we should differentiate between one type of break-in, ransacking and seizure, and another. Why should we have different conditions for them? Why should not Clause 8 apply to the lot? Why should it not replace all the provisions in all other Acts of Parliament (apart from revenue cases probably, which are of a different type altogether) certainly as regards a search for prohibited articles and some other things?

I am very confused. I think there are two standards here somewhere and I have done my best to expose what they are. I have said so many harsh things about the Video Recordings Bill that I hate to repeat any of them—my vocabulary has run out—but we are sticking this in a Bill which is before Parliament at the present time. We were debating this only last week, and it is an extraordinary thing that the speech I have heard from my own Front Bench tonight on the general question and the principle of the matter was strangely absent when we were dealing with video recordings. Oh yes: we did not hear it then. What we heard was quoted extensively by the noble Lord in reply to the amendment only a few moments ago. At least one can say that there are two sets of values, two voices on my own Front Bench and confusion all round. So I now look to the Minister to clear it all up.

Lord Elton

I am sure we shall be in stereo before we have finished; but I think the noble Lord, Lord Hooson, wants to speak.

Lord Hooson

I am most grateful to the noble and experienced parliamentarian, Lord Houghton of Sowerby, who I would guess has rescued me from an unfortunate absence. I apologise to your Lordships that I did not get back to my place in time, because your Lordships have proceeded with greater despatch than was apparent before we adjourned for dinner. I have given notice, together with my noble friend Lord Hutchinson of Lullington, that we would oppose clause stand part on Clauses 8 to 14 inclusive. I indicated during my speech on Second Reading why that was so. In a very complicated Bill, in my submission, Clauses 8 to 14 are the most complicated of all. This is the most complex and least readily intelligible part of the whole Bill.

If your Lordships will look at the construction of this part of the Bill, Clause 8 gives power to apply to a justice of the peace for a search warrant to search premises. Clause 9 provides that access can be obtained to excluded material or special procedure material by a special procedure laid down in Schedule 1, which is virtually an application under certain very strict terms to a circuit judge. Clause 10 defines "excluded material", and that is a clause of considerable complication. Clause 11 defines the meaning of "items subject to legal privilege". That again is a clause of complications. The meaning of "personal records" is defined in Clause 12. In Clause 13 we have a definition of the meaning of "journalistic material".

This is highly complex. This Bill was intended to simplify the law, to make it clear to the constable on the beat and the lay magistrates what powers there were and how they were going to be defined, and so on. It is small wonder that the Association of Chief Officers of Police, in a memorandum they have sent around to a number of your Lordships, heavily criticise this part of the Bill. Let me point out that the noble and learned Lord, Lord Denning, who is in his place, has already made the most valuable contributions to our debates, and on the last matter mentioned the evidence given by the chief officers of police to the Royal Commission. They were seeking a new power, which is the power to obtain search warrants to search for evidence. The words used—and I think the noble Lord, Lord Elystan-Morgan, quoted them in his speech—were: "the right to search for evidence." It was the confusion between the term "evidence" and material that would help in a criminal investigation that has clouded the whole issue on this part of this Bill.

In the criticisms, which I do not think have been met at all, the chiefs of police said: The power to search for evidence should be so designed as to attract solely those items which can be adduced by a police officer who has seized them". That is a very simple principle. What the chiefs of police wanted, in the evidence that they gave to the Royal Commission, was the right to search premises occupied by a third party—very often, an innocent party. For example, if I may take what I suggest would be the kind of circumstance, one could ask a friend to keep a case on his premises. The police might have information that within the case was contained a revolver which had been used in a bank robbery. That would be very important evidence, and it is a matter of common sense that, if they had that information, the police should be allowed to search those premises to look for that evidence.

The truth is that when this part of the Bill was drafted in the first Bill which came before Parliament, prior to the general election, it attracted an enormous amount of criticism, because priests, doctors and journalists were all concerned about the search of their premises and what use might be made of material which, in normal human relationships in a civilised society, has always been regarded as confidential.

The chief officers of police—and I make no apology for quoting them, because they argued this matter on paper as cogently as anybody could—said: The original proposals were designed to provide a power for the police to search for and obtain evidence, such as a murder weapon, bloodstained clothing or even a dead body which is concealed in premises or held by some third party, whether innocent or not, and including such matters held on an undertaking of confidence". They added: There has never been a suggestion that the police should have a power to examine confidential records, such as those held by doctors or priests, nor has it been proposed that police should have a power to seize such items". What happened was that having started on the wrong route the Home Office produced, with the aid of the draftsman, a Bill on certain principles which the chiefs of police did not want at all. It widened the ambit of what was proposed so that they could search—and here I am quoting Clause 8(1)(b)—for material on premises specified in the application which is likely to be of substantial value (whether by itself or together with other material) to the investigation of the offence". This is something totally different. It has never been envisaged that they would have the right to search for that kind of information.

After all, the noble and learned Lord, Lord Denning, reminded us of the judgment in the John Wilkes case in the 18th century. I cannot remember who was the learned judge who dismissed the matter and, in a very famous judgment, pronounced that there was no right under our law to search premises to look for incriminating material, with no grounds at all for that kind of investigation. The police, quite rightly, point out they should in common sense have the right to apply for a warrant and to search premises where they have reason to believe that a serious arrestable offence has been committed and that evidence is available; or where they have reasonable grounds for thinking that it is on the premises of a third person it is right that they should have the right to search the premises to find that evidence. But the whole matter has been complicated by the way in which this part of the Bill was drawn up in the first place.

I have spoken about the complication of this part to a number of police officers, and I was recently lecturing to a group of inspectors. Without exception, they were very alarmed by this part of the Bill. The noble Lord the Minister knows that the chiefs of police asked the Home Office to reconstruct the whole of this part, and the Home Office refused to do so. The reason why my noble friend Lord Hutchinson and I gave notice that we would oppose the clauses standing part of the Bill was to give the Home Office a chance to think again.

I know that it is very late in the day, but looking at this power under Clause 8, and going on to Clause 14, it is highly complicated. It is said that the ordinary constable must understand it. He has to make an application, he has to be authorised in certain instances by an inspector, and so on. But he has to know the meaning of personal records, of journalistic material and of excluded material, before he determines which way he will apply—whether to a circuit judge, a magistrate, and so on. It is my submission that, in the interests of the police as well as of the public, we all ought to know what these powers are. They ought to be drafted as simply as possible. Indeed, the chief officers of police suggested that the provisions of Clauses 8 to 14 should be deleted and that a further attempt should be made to produce a power to search for evidence, as originally envisaged in the evidence given to the Royal Commission and subsequently recommended by their report. That must be right.

Also there is an important viewpoint which I should like to express on behalf of the public. It would be quite wrong for a lay magistrate to act as a rubber stamp in these proceedings, and I am sure that the noble Lord will entirely agree with me on that. Nevertheless, what the magistrate has to consider—no doubt, approached ex parte in his or her house—are the very complication provisions of this part of the Bill. Very often, he will not have them to hand, and they will he put before him. He can no doubt be assured immediately that a serious arrestable offence has been committed, and so on; but the remaining requirements are an enormous burden to thrust upon a lay magistrate.

I know that the noble Lord told me on Second Reading that the chiefs of police are now satisfied, but I do not accept that. Of course, I accept the statement that there must have been an indication that they were no longer, as it were, pursuing their objection. But the truth is that their detailed criticisms, which I found the most cogent criticisms of the Bill that I received from anybody, have not been met and that the criticisms remain. So it is up to this Committee to do what it can to put that matter right. I know that the noble and learned Lord, Lord Elwyn-Jones, and his colleagues have tried to amend this part of the Bill to make it more acceptable, to make more sense of it, to try to simplify it, and so on. But the truth is that the whole of this part of the Bill needs to be reconstructed on the simple principle that the Minister should go back to what the police officers wanted in their evidence to the Royal Commission.

Lord Hutchinson of Lullington

I should like to support this Motion. I suggest to your Lordships that the Minister was far too blasé, too dismissive and too bland when he replied earlier this evening to the last amendment about the complexity of what the magistrates will be asked to do under this part of the Bill. They are asked to make decisions, first, in privacy, alone with a police officer in their rooms, on matters which I suggest no lay person should be asked to decide. As your Lordships have seen, over and over again they will have to make decisions on difficult matters of law. They will have to have their clerk with them. There will be a threesome in that private room. The clerk in a large number of cases will make the decision. The lay magistrate will naturally have to depend upon the clerk when it comes to questions of law.

As has already been pointed out, the majority decision of the Royal Commission was that there should be a substantial extension of the powers of search. Although the noble Lord the Minister may quote certain Acts of Parliament which to a certain degree overlap with these broad powers, these broad powers are admitted by the Royal Commission to be an extension of the powers of search. They went out of their way to suggest that these powers should be given only with the most stringent safeguards. They suggested that there should be a right of appeal and—a point which has been lost sight of—that there should be an exclusionary rule in relation to any items which were obtained in contravention of the principle under which the powers were given. That exclusionary rule, which the Government have been against from start to finish, is that an executive discretion should be given to the police to consider whether such evidence should be excluded if they find that the rules have not been followed.

The reason why the Royal Commission were so strong about this recommendation—stronger than about any other recommendation—was the very good one that here the police are being given the power to search the premises of totally innocent people—people who are not concerned in any shape or form with the offence to which the rummaging applies. I use here a word that was used by Lord Camden who, in one of his judgments, set his face hundreds of years ago against this power. "The people of this country", he said, "are not to have their homes rummaged". The power which is given here is to rummage. As my noble friend Lord Hooson pointed out, there is a distinction between evidence to support an offence and information which will assist in the inquiries into an offence.

The noble Lord the Minister said in his very smooth, if I may say so without being offensive, reply that magistrates have done this for hundreds of years and are capable of doing it; it will be no problem for magistrates to do this, that or the other. However, let us pause for one moment and look at Clause 8(1)(b). The magistrates have to decide whether. there is material on premises specified in the application which is likely to be of substantial value". Where do we find that in any of the statutes quoted by the noble Lord the Minister giving the power—

Lord Elton

Can the noble Lord tell me whether magistrates do not now consider whether it is likely that there is material which ought to qualify for a search warrant? If that is the case, why is it suddenly so much more difficult?

Lord Hutchinson of Lullington

If the noble Lord will allow me to finish, I was going to add that the qualification was if it is likely to be of substantial value, either by itself or together with other material, to the investigation of an offence. Therefore the officer says to the magistrate, "There are diaries, accounts, files in the office of this person". The magistrate has to decide whether those diaries, files and accounts are likely to be of substantial value. He will say, "They may be of value, but are they of substantial value? What will he in those diaries? Will it be of substantial value, together with other material, to the investigation of the offence?" "Well," says the officer, "I am investigating a big credit card fraud. I want to go into this office to find out who else is concerned in the fraud. If I examine the diaries of this person, I shall find material in them as to the associates of that person".

The magistrate will have to decide whether to allow the police to go through the whole of somebody's private diaries and private correspondence because the officer, perfectly genuinely, has said, "I think that this is a conspiracy and I want to discover who the business associates of this man are. If I can discover who are his business associates, it is very likely that I shall be able to connect them up in this fraud, which is concerned with a number of companies and associated companies, and that information will come from this material".

How on earth can a magistrate make up his mind on those matters? Quite apart from that, he will have to go on and deal with other matters. I shall not go through them all but, as your Lordships know, it is no good dismissing these other matters relating to excluded material, material held in confidence, journalistic material held in confidence, legal material which is privileged. The magistrate will not be able to push all that aside.

The magistrate will have to say, "This person's documents will largely consist—won't they, officer?—of correspondence with his solicitor, because this is a big takeover. There is bound to be correspondence in those files; won't some of that correspondence be privileged?" The officer will reply, "I shan't be able to tell you that until I have the material". Then the magistrate has to decide whether, after all that, the material is evidence.

The Committee will appreciate that all the material in the diary probably will not be evidence at all unless one can prove who was the person who wrote in the diary, and so on. The rules of evidence come into it. Most of it will be hearsay and it will depend on the strict rules of evidence as to whether the material in the files or in the index or in the letters is evidence or not. That will be a matter for the clerk to decide.

Speaking as a lawyer, I found this part of the Bill—and I mean it—almost incomprehensible; it is so complex and so complicated that one is constantly referring back to another phrase which is not a term of art and which is not technically a legal expression—such as "likely to be" and so on and so forth. I would submit that the only cure for this part of the Bill is to take it away and think again.

This new power of enabling the police to search for information was embarked upon in the original Bill and immediately ran into a hornets' nest because no one had appreciated that all what are called the caring professions would be up in arms, as they all were. The result is this dog's dinner of trying to get the caring professions out of the rules and surrounded by "ifs" and "buts". I would simply say to the Committee that there are people in the world other than those in the caring professions; there are caring men on the top of Clapham omnibuses. Why should they not be protected just as much as the caring professions? I suggest to your Lordships that this is a matter of the greatest possible importance, and the only answer to this part of the Bill is to take it away and have another look at it.

Lord Denning

This is virtually a re-run of the debate that we have just had. As my noble friend Lord Houghton has said, there is no doubt that in future there will be two classes of material. In the case of the first class, one will have to apply to a magistrate; in the case of the other, one will have to apply to a circuit judge. It depends on those words which say that a magistrate is not allowed to deal with matters which are subject to legal privilege, excluded material or special procedure material. There are two classes of material and the magistrates will decide whether they can deal with the matter or whether it has to go before a circuit judge. This is virtually the same question we have just been discussing; it is just a different formula.

9.12 p.m.

Lord Elton

When noble Lords and noble and learned Lords of the eminence of those to whom we have just been listening say that something is incomprehensible to them, or to magistrates, then of course I feel slightly impertinent if I pretend to understand the matter myself. I hope that I do not sound blasé, dismissive or bland if I make that clear. And if I sound conceited, it is unintentional.

I wonder whether I ought not first to set out the scheme of this part of the Bill as I see it. It would be possible to do so at length and your Lordships may challenge me, but perhaps I may offer a condensation. Under Clause 8 a magistrate has to consider whether an application made to him by a policeman—already invigilated by a senior policeman, the Committee will remember, considering the same criteria—enables him to grant a search warrant. If the premises are to be accessible in terms of a warrant granted by a magistrate, the application has to satisfy the conditions set out in Clause 8(1).

The magistrate must have reasonable grounds for believing that, a serious arrestable offence has been committed". We have discussed what that is, and it is not in doubt. The magistrate has to consider, that there is material on premises specified in the applicaion which is likely to be of substantial value (whether by itself or together with other material) to the investigation of the offence". The noble Lord, Lord Hutchinson of Lullington, made much of the difficulty of that and went on to comment that the danger in the Bill was the way in which it brought in information as opposed to evidence, and how there was reference to this by the caring professions. Perhaps I may remind the noble Lord that the material in subsection 1(b) has to satisfy also the criterion in subsection 1(c); it is not only information, it is also relevant evidence.

If I may skip paragraph (d) for a moment, we then come to paragraph (c). That relates to the conditions in subsection (2) which between them amount to a conclusion that no other way of proceeding to get the information is satisfactory. That leaves us with the criterion in subsection 1(d) as providing, as I said—and at the stage just before dinner the noble and learned Lord, Lord Denning, predicted that I would repeat myself—that we are looking at material which is not accessible to magistrates. It falls into three types. There is "legally privileged" material, and, as I understand it, that is a term which is fairly generally understood and which is explicitly described and defined in Clause 11. There is excluded material, to which nobody can grant access. There are three categories of that. There are personal records held in confidence. There is a definition of "personal records" in Clause 12 and a definition of "held in confidence" in Clause 10(2). There are also human tissues and tissue fluids held in confidence, as well as journalistic material held in confidence, which is going to occupy our attention a little later this evening—but not much, I hope. "Journalistic material" is defined in Clause 13. That is the batch of material to which neither the magistrates nor the judge can give access.

We are then left with the third category to which the magistrates cannot give access, and that is special procedure material to which, as its name implies, there can be access, but only by a special procedure which is set out in Schedule 1.

There, again, in Clause 14 there is a definition of "special procedure material" and a reference to journalistic material, other than excluded material. I do not think on reflection that the noble Lord would find tremendous difficulty in Clause 14. It may be that the fact that we have here six clauses intermeshing is daunting, but the way they intermesh seems to me to be slightly less difficult than noble Lords have so far suggested.

All your Lordships have addressed yourselves to the whole part of the Bill. I take it that it was a mere oversight which the noble Lord, Lord Hooson, fell into due to the haste of his arrival here—and how glad were we to see him—that led him not to speak to the Question that the other clauses shall stand part which, I understand, it was his intention to do. We can therefore dispose of this in one debate.

Lord Hooson

I agree.

Lord Elton

This clause has grown up over a period. The noble Lord, Lord Hooson, quoted a passage from the ACPO memorandum; I shall not weary your Lordships by repeating it. He will, I am sure, remember that it was actually the middle of last year when that was drafted, that the Bill has since changed, and that the Association of Chief Police Officers has said that it can operate this part of the Bill and it thinks that it is useful.

But there were others than the police whom we had to consider when the police wondered whether this game was worth the candle. They included the caring professions, members of which noble Lords see travelling about on the Clapham omnibus. For understandable reasons, they were anxious that the matter should be put beyond doubt. At the end of the day what mattered was not the adequacy of our explanation and reassurances about the need for these safeguards, but the fact that the reassurances that we proposed failed to reassure. A climate of uncertainty developed which damaged the ability of the caring professions to do their work and the only way the matter could finally be put beyond doubt was to define which material may not be the subject of an application for access under the new procedures. That is why the Bill has become complicated, though not as complicated, I submit, as some of your Lordships suggest.

I could address myself, as I say, to large tracts of explanation. It would take 10 or 15 minutes, I think, to go in detail through this part of the Bill and the way it is applied. The only reassurance I want to give your Lordships on that is that it is possible to analyse it if one gives it the time, that policemen are trained by people who will have analysed it, and that a clear path can be drawn through it. That applies to magistrates, too. I see the noble Lord, Lord Hooson, trembling on the edge of his Bench.

Lord Hooson

I am grateful to the noble Lord for giving way. If a police officer applies for a warrant and finds no evidence, but rummaging through the papers finds evidence of something else, is he entitled to use that evidence?

Lord Elton

It has always been the case, as I understand it, that if a policeman is given the power to search for one incriminating object and finds another he should not turn a blind eye to it. What the law prohibits is the policeman getting a warrant to look for a generality of things. We started with Wilkes where everything was general on the warrant. There was practically just a blank sheet of paper on which names could be filled in as well as offences and articles. We have now narrowed this down so that the policeman has to apply in very precise terms. Half of your Lordships' anxiety is that the terms are so very precise in Clause 8, is it not? The policeman has to say exactly what he wants, why he wants it, the likelihood of it being there, the fact that it is not legally privileged, excluded, or special material, and so on. He must then go on to convince the magistrate that nothing else will do and that he cannot get the person to produce the evidence by any other means. That seems to me to be a strength and a reassurance and not something to alarm your Lordships.

It is true that a great many of the powers that are on the statute book and which are available to magistrates to give search warrants to police officers will remain on the statute book, and it will still be for the magistrates to decide. Those powers will not be controlled by this part of the Bill. This part of the Bill addresses itself to those matters which are thought by those concerned to be the most delicate and the most sensitive. It seems to me that it is proper that they should be protected and that the Bill should have the effect of putting those for the judgment in whom all your Lordships have said you have great confidence—that is, the circuit judge.

Lord Hutchinson of Lullington

Taking up the point made by the noble Lord, Lord Hooson, do I understand that the Minister is saying that if a police officer obtains a warrant to search in somebody's office for incriminating documents in a fraud case, and should there find evidence of pornographic books or photographs, it would then be perfectly open to the officer to bring proceedings under the Obscene Publications Act against that individual although the officer had gone there to search for fraudulent documents?

Lord Elton

I will take advice on that. If, on the other hand, the police officer was looking for incriminating documents and found a dead body I think the noble Lord will agree that he ought to do something about it. It is a question of degree.

Lord Campbell of Alloway

Before my noble friend sits down, may I ask a procedural question? He suggested that we were speaking to a whole range of clauses between Clauses 8 and 14 on clause stand part. I was rather hoping that, on the consideration of Amendment No. 61 and the associated amendments which relate to the exclusion of journalistic material, in that context we would approach Clause 13 stand part, to which the noble Lords, Lord Hooson, Lord Hutchinson and Lord McGregor of Durris, have set their names, in a totally free vein.

Lord Elton

My noble friend makes the agreeable and comforting supposition that the clause will be there when we get to it. We are debating clause stand part and if we lose Clause 8 much that follows will have nothing to stand on. I am sure that my noble friend will be able to address himself to as wide a consideration as he wishes in the context of that debate. I am not trying to exclude him from it in any way. What I think that most of your Lordships would wish to do is to debate, as we have, the generality of Part II once rather than eight or nine times.

Lord Mishcon

I wonder whether I might be allowed to make a short contribution. I hope in a practical way. There is anxiety. It is shared by eminent lawyers and not least. I believe, by the noble and learned Lord. Lord Denning. The anxiety is that going through the whole of this paraphernalia by way of an oral application before a magistrate will not mean a strict observance of the Act, if it becomes an Act, in the way that I believe Members of your Lordships' House would want and the noble Lord the Minister would want.

I believe that it would at least be a betterment of the Bill if the application had to be made supported by an affidavit—and it is an ex parte application, so one would be giving nothing away—which would comply with the provisions of the Bill. The police officer would have to make a written application, as it were, in the sense that the grounds would be in the affidavit, in which he would deal with the various parts of this clause, say why it was that the evidence he wanted to adduce was material and in other ways—and I need not go right the way through this—comply with the provisions of this clause.

Otherwise—and this is not meant in any way to be offensive to any magistrate; I and my noble friends join in all the things that have been said by way of praise of the magistrates, lay and stipendiary alike—we would he imposing upon a magistrate the detailed provisions of this and other clauses—but we are now dealing with this clause. The learned magistrate—and I use that title on purpose to show that I meant what I said a moment ago very sincerely—would have to go through every provision here to make sure that what was orally said complied with every one of these provisions. That is asking for something that cannot be done or will not be done in many cases.

But if we had an affidavit that complied with this clause, one can envisage that care would be taken to see that its provisions had been complied with, and the magistrate, and possibly the magistrate's clerk, would be able to check that all that was demanded by this clause had been satisfied. It is the oral application, ex parte, that I believe confuses many of us and makes us apprehensive.

Lord Elton

My noble friend—and saying that is an honest slip!—the noble Lord. Lord Mishcon, has kindly reminded me that of course the procedure is not exclusively oral. I refer him to page 56 of the draft codes of practice, which is already published and which will be enforceable under the disciplinary code, and remind your Lordships that: An application for a search warrant must be supported by an information in writing, stating: (i) the enactment under which the application is made"— and of course it is any application and not just one under this clause— ii) as specifically as is reasonably practicable the premises to be searched and the object of the search; and iii) the grounds on which the application is made (including, where the purpose of the proposed search is to find evidence of an alleged offence, an indication of how the evidence relates to the "— investigation.

That is a requirement also in Clause 15(2): Where a constable applies for any such warrant, it shall be his duty … to state", and here are the statements that the noble Lord wants, but of course they may be made verbally. If he is suggesting that the code practice should be slightly more specific, that is another matter. But I do not think that that is a matter which ought to bring Part II of the Bill down in ruins.

Lord Mishcon

I merely reply quickly to the very helpful comments made by the noble Lord. Obviously, as he said, we are dealing now with a draft code of practice. Secondly, we are dealing with a code of practice that talks in only general terms about the grounds upon which the application is made. I hoped that the noble Lord the Minister would reply to the effect that what I had said seemed to be a practical suggestion. At least some Members of the Committee (I am not speaking beyond that) might be happier if the noble Lord the Minister would say that. These provisions are very complex. Because all of us want these conditions satisfied, then either the code of practice or (as I would prefer) the Bill itself should say that all these grounds, and not just the ones that are selected in the code of practice, should be either in a written information or, I would have hoped, in an affidavit which supports the application.

But presumably the noble Lord the Minister is not saying that, which puts some of us in a rather difficult position unless, of course—and I can go on talking for a moment or two while, if I may say so, the most nimble Baroness in the Committee manages to finish a journey which might be the envy of anyone who represents us at the Olympic Games!

Lord Elton

The noble Baroness's swift journeys first created for me an ambiguity and then resolved it. I understand that the noble Lord, Lord Mishcon, and I are in fact talking about the same thing. I understand that an affidavit is to the higher ranks of the Judiciary what an information in writing is to a magistrate. I am assured that that is right. Therefore I am happy to say that what the noble Lord has said will satisfy him is already in Clause 15(3): An application for such a warrant shall be made ex parte and supported by an information in writing".

Lord Mishcon

It says "supported by".

Lord Elton

I am afraid the noble Lord will have to explain further. If he does not want it to be supported by an affidavit, what is it that he wants the affidavit to do?

Lord Mishcon

Of course I want it to be in support. However, one can have an affidavit or information in support which merely says in general terms, "This is going to assist in the course of the investigation", and that supports the information. Even if the draft code of practice is carried out in full, it does not cover the whole of the provisions of this clause and all the things about which the court is supposed to be satisfied. As I said, I would have hoped that I was making a practical suggestion, but presumably it is not one that commends itself to the noble Lord.

Lord Elton

The noble Lord's suggestions usually commend themselves to me as sensible, and I am grateful for his attempt to help. I think we have perhaps gone on long enough. Of course I shall consider carefully what has been said. However, it seems to me that we have the information in writing containing in general terms a good deal of what the noble Lord wants. If the magistrate finds his case difficult, he will know what questions to ask orally. I suppose he could ask for them to be answered in writing if that was of assistance. I think we have reached as far as we can with this. I have tried to reassure the Committee. However, this part of the Bill is complex. The complexity is unavoidable. It arises from requests that have been made by those most closely affected by the provisions of the Bill.

I should add that we have closely considered whether it could not be simplified on a different basis. We have come to the conclusion that any other process would be likely to lead into other or new difficulties. In Clause 8(1) the magistrate has to be satisfied that the conditions are fulfilled. If he does not understand them, he will not be satisfied. I really think we are safe.

Lord Hooson

I should simply like to confirm what the noble Lord. Lord Elton, pointed out to me: that, of course, my noble friend and I were speaking in objection to Clauses 8 to 14, inclusive, standing part. However, we intend to divide on Clause 8 simply because we believe that this section is so complicated—complicated for the police and complicated for the magistrates—that the only way in which to deal with it is for the Home Office to take it back. Then, they could bring in a far easier and simpler construction, as they know they could have done months ago when asked to do so by chiefs of police.

9.35 p.m.

On Question, Whether Clause 8 shall stand part of the Bill?

Their Lordships divided: Contents, 64: Not-Contents, 40.

DIVISION NO. 2
CONTENTS
Abercorn, D.	Avon, E.
Atholl, D.	Belhaven and Stenton, L
Auckland, L.	Bellwin, L.

Beloff, L.	Hailsham of Saint Marylebone, L.
Belstead, L.
Boyd-Carpenter, L.	Halsbury, E.
Brabazon of Tara, L.	Harmar-Nicholls, L.
Brougham and Vaux, L.	Hood, V.
Bruce-Gardyne, L.	Hornsby-Smith, B.
Cairns, E.	Hylton-Foster, B.
Caithness, E.	Kaberry of Adel, L.
Campbell of Alloway, L.	Kilmany, L.
Cathcart, E.	Kintore, E.
Cockfield, L.	Lawrence, L.
Coleraine, L.	Long, V.
Cork and Orrery, E.	Lucas of Chilworth, L.
Craigmyle, L.	Macleod of Borve, B.
Crathorne, L.	Marshall of Leeds, L.
Cullen of Ashbourne, L.	Maude of Stratford-upon-Avon, L.
De La Warr, E.
Denham, L. [Teller.]	Molson, L.
Dilhorne, V.	Norwich, Bp.
Elliot of Harwood, B.	Plant, L.
Elton, L.	Rankeillour, L.
Faithfull, B.	Sharples, B.
Ferrier, L.	Skelmersdale, L.
Fortescue, E.	Swansea, L.
Fraser of Kilmorack, L.	Swinton, E. [Teller.]
Gardner of Parkes, B.	Trefgarne, L.
Gibson-Watt, L.	Trumpington, B.
Gisborough, L.	Vaux of Harrowden, L.
Glenarthur, L.	Whitelaw, V.
Gridley, L.	Wise, L.
NOT-CONTENTS
Airedale, L.	Kilbracken, L.
Amherst, E.	Kilmarnock, L.
Ardwick, L.	Kirkhill, L.
Attlee, E.	Lockwood, B.
Avebury, L.	McGregor of Durris, L.
Beaumont of Whitley, L.	Mishcon, L.
Birk, B.	Molloy, L.
Blease, L.	Nicol, B. [Teller.]
Brockway, L.	Pitt of Hampstead, L.
Dean of Beswick, L.	Ponsonby of Shulbrede, L.
Denning, L.	Stedman, B.
Elwyn-Jones, L.	Stewart of Alvechurch, B.
Elystan-Morgan, L.	Stewart of Fulham, L.
Gilford, L.	Stoddart of Swindon, L.
Harris of Greenwich, L.	Stone, L.
Hatch of Lusby, L.	Tordiff, L.
Hooson, L.	Underhill, L.
Houghton of Sowerby, L.	Wigoder, L. [Teller.]
Hunt, L.	Winchilsea and Nottingham E.
Hutchinson of Lullington, L.
John-Mackie, L.

Resolved in the affirmative, and Clause 8 agreed to accordingly.

9.43 p.m.

Clause 9 [Access to excluded material and special procedure material]:

[Amendments Nos. 53 and 54 not moved.]

Clause 9 agreed to.

Schedule 1 [Special procedure]:

[Amendments Nos. 55, 56 and 57 not moved.]

Lord Mishcon had given notice of his intention to move Amendment No. 58:

[Printed earlier: col. 65.]

The noble Lord said: I think that perhaps I should move this amendment formally and just leave it to the noble Lord the Minister to reply to it if he sees fit.

Lord Elton

I am not at all sure that I do see fit to reply to it because, although the noble Lord warned me that this was not part of the group, I had in fact assumed, wrongly, that it was and therefore the noble Lord must bear with me while I find my copy of the Bill.

Lord Mishcon

I want to do something much kinder than that. On further reflection I think that it is part of the group and, therefore, I shall save the noble Lord the Minister the need to look further at his papers. It must be part of the group and in those circumstances I hope that I can say, "not moved".

[Amendments Nos. 58 and 59 not moved.]

Schedule 1 agreed to.

Clause 10 [Meaning of "excluded materials"]:

Lord Elton moved Amendment No. 60: Page 11, line 15, leave out ("held by him").

The noble Lord said: If I may, I shall also speak to Amendment No. 172 in Clause 107. Amendment No. 172: Page 94, line 35, leave out ("held by him"). Both of these are drafting amendments which delete three superfluous words. A similar amendment to Clause 14(2)(a) was accepted in another place on Report and not reflected in the other parts of the Bill. I hope that your Lordships will agree that these two amendments will bring Clauses 10 and 107 into line with that amendment. I beg to move.

On Question, amendment agreed to.

Lord Campbell of Alloway moved Amendment No. 61: Page II, line 19, leave out paragraph (c)

The noble Lord said: With the leave of the Committee, I should like when speaking to this amendment to refer to Amendments Nos. 62, 63 and 67. Amendment No. 62: Page 11, line 23, leave out ("other than journalistic material"). Amendment No. 63: Page 11, line 31, leave out subsection (3). Amendment No. 67: Clause 14, page 13, line 2, leave out from ("applies") to end of line 3.

These amendments, with the notice of intention to oppose the Question, That Clause 13 stand part of the Bill, will excise the exclusion of journalistic material from the powers of entry, search and seizure under Part II of the Bill. I shall be very brief. We are concerned here with a proffered safeguard which is wholly unacceptable to those whom it is designed to protect. Apart from this, this exclusion is objectionable in principle. It raises a serious problem of definition; it creates some new status of privilege; and I beg to suggest that the history of the origins of this exclusion, when introduced during the pre-election stage of the Bill, as it stood in 1982, may be of some interest, but it is of absolutely no consequence today.

It is immaterial whether there has been some misunderstanding or some change of view, or both. What is relevant is the situation today. For this exclusion is not acceptable to the vast majority of journalists, to at least 200 editors, to the British Executive of the International Press Institute, to the Association of Journalists, or to the Newspaper Society. Therefore, with respect to my noble friend the Minister, it is not to the point for him to contend, as he did on Second Reading, at col. 478, that this exclusion, which nobody wants, can be justified as protecting sources in the interests of a free press, avoiding the possibility of a denial of access by journalists, or honouring some undertaking which nobody wishes to be honoured if it be given.

Two of the noble Lords who support this amendment have already spoken at Second Reading, giving your Lordships' House the benefit of their own knowledge and expertise in this matter, and, as I see them in their place, it is not my purpose tonight to seek to pre-empt what they may say. It appeared to me as a matter of principle that the exclusion of journalistic material from the powers of entry, seizure and search under Part II of this Bill was unsound, unworkable, open to serious objection and perhaps unwelcome to those affected by it. A new dimension to the order of debate on Second Reading was introduced by the noble Lords, Lord Ardwick and Lord Hemingford, who explained why the exclusion was unacceptable to those directly affected by it. My noble friend the Minister, with his customary grace, in reply said that he would keep an open mind upon this subject, and it is in that spirit that I beg to move.

Lord McGregor of Durris

With the leave of the Committee, I should like to speak not only to this amendment but also to the amendments to Clause 13 and Clause 14. I should like to deal with one major point in these amendments which seek to delete references to journalistic material from the Bill. What is the justification of the privileged exemption of the professions protected in the Bill? The principle seems to stand on the necessity to protect interests vital to society.

The lawyers' privilege is, in part, to enable him to protect his client; but very importantly also to further the administration of justice. The doctors' Hippocratic silence not to reveal what ought not to be noised among men stands on the requirement that if the doctor is to serve his patient, his patient must be free to disclose everything that may be relevant about himself. Without full disclosure the doctor cannot diagnose, prognose, or treat. The priest is bound to silence over all matters disclosed in formal confession. The penitent must be free to tell all in order to be forgiven all. To the circumstances of social workers they attach similar considerations.

The general justification of these privileges is that some professions cannot be practised without them. The practitioners need the privilege to do their work, and most of them assert this need vigorously. But what of journalists and broadcasters? It could be argued that they need the legal privilege in order to serve the interests of society by protecting their sources of information in the course of providing the information without which, inter alia, democratic electorates cannot make rational choices.

Is this what the Government are saying, that journalists and broadcasters—like doctors, priests and lawyers—cannot do their work without this special protection? In fact journalists and broadcasters are saying the opposite, that they cannot do their work in good conscience if they are privileged. They fear, as the first possible consequence of privilege, the registration of journalists, which is only too likely to result from a situation in which the courts have to define journalistic material and then, necessarily, journalists. Beyond registration lies licensing, and beyond that control. That this possibility is no wild nightmare thought up by opponents of the Bill is confirmed by the grounds on which the former Government and this Government have regularly and honourably opposed the attempts of UNESCO to secure a special status and protection for journalists in the course of seeking to establish a new world information and communication order.

The Minister of State at the Foreign and Commonwealth Office at the time, Mr. Peter Blaker, spoke to the general conference of UNESCO in Belgrade in 1980. I have taken a phrase or two from what he said. He said: we should fully endorse recommendation 50 of the MacBride Report, which emphasises the dangers of a special status for journalists. Recommendation 50 of that Report reads in part: The professional independence and integrity of all those involved in the collection and dissemination of news, information and views to the public should be safeguarded. However, the Commission does not propose special privileges to protect journalists in the performance of their duties, although journalism is often a dangerous profession. Far from constituting a special category, journalists are citizens of their respective countries, entitled to the same range of human rights as other citizens. … To propose additional measures would invite the dangers entailed in a licensing system since it would require some body to stipulate who should be entitled to claim such protection". This Bill confers a special status upon journalists, and other countries will discern a serious inconsistency in our domestic and our international positions on this matter. These are the foundations of anxiety about the clauses. We have never had a press law in this country, and journalists have been subject to the same law as that which applies to their readers. I know that there has been discussion about the numbers of journalists who take one view or the other. It is my opinion that on the current evidence the great majority of journalists wish these clauses to be deleted; but I do not intend to argue the detail because I believe that this will be discussed by the noble Lord, Lord Hemingford.

I simply wish to quote a sentence or two from a very remarkable document, also quoted by the noble Lord, Lord Ardwick, on Second Reading. This is a statement signed by more than 200 editors drawn from the national dailies, the Sundays, broadcasters, regional newspapers and weeklies across the whole spectrum of the British press. Never before has this number of journalists and editors contrived to agree on a form of words, let alone agree to sign a public statement about their beliefs. What they say is this: We would rather be left out of the Bill. Journalists have no rights above those of ordinary citizens because journalists are ordinary citizens. We do not want special privileges conferred upon us. What is given can always be taken away". I hope that the noble Lord who is to reply will explain what is the special principle that requires journalists to have a legal privilege conferred upon them in circumstances in which most of them adamantly reject it. They do not need it for their work, as does the doctor or the priest or the lawyer. On the contrary, what they are all saying is that the possession of such a privilege will undermine their capacity to do their work, and expose them to risks of all kinds. I simply cannot understand why, in these circumstances, the Government have continued with these clauses, and I very much hope that the noble Lord the Minister when he replies will give us some encouragement in the direction of a reconsideration of them.

10 p.m.

The Duke of Atholl

I very much hope that my noble friend the Minister will accept these amendments. I personally, would be quite unable to support the Government on this particular group of amendments. I am chairman of a group of provincial newspapers—an interest which I feel I should declare —but I assure your Lordships that I am not and never have been a journalist in any form, shape or size. Sadly, I think I would not be capable of writing sufficiently well to pursue that career.

But I feel that, in principle, journalists should not have special privileges, as has already been said, and that they do not want them. As chairman of this group, I should be most upset if I thought that our journalists were getting special privileges under this Bill which were not obtainable by other citizens of this country. I therefore hope that the Government will accept this group of amendments. I am sure that if they do not accept them tonight my noble friend will be able to say that he will consider the matter very seriously; because I know that it will be returned to at the Report stage of the Bill.

Lord Hunt

I rise briefly to support the amendment and to say that I have little, if anything, to add to what my noble friend Lord McGregor of Durris has said. But having served for three years under his distinguished chairmanship on the Royal Commission on the Press between 1974 and 1977, I am totally convinced that these amendments are right. It is greatly to the credit of the 200 or more editors mentioned by my noble friend that they have gone public in expressing their views. It is quite a relief that in relation to a Bill attracting a number of amendments purporting to provide additional protection from search and seizure—two of which I am about to move myself—there should be an amendment to seek excusal from being protected. I would say that it is not too much to claim that the freedom of our press, one of our basic liberties, depends upon this exposure to search and seizure, if necessary, as a safeguard against the abuse of the freedom of the press.

Lord Denning

May I ask to support this amendment? The law has often considered confidential information, especially that of journalists, when they have claimed to keep their sources secret. Always the law has replied, "It all depends". If it is necessary in the interests of justice for those sources to be disclosed, then they must be, as indeed the Committee will remember happened in the cases of British Steel and Granada and others. In many cases the courts have ordered the journalists to produce documents and to disclose their sources when it is necessary in the interests of justice—but only when it is necessary.

Most surely this can be carried out in this Bill. The disclosure of the journalists' material should be on the same footing as other documents, whether they are company documents or the like. The magistrates can consider whether it is really relevant evidence. Let us take the case where the newspaper buys documents which are very incriminating, as happened in the case of Vassall and in others. They often buy documents at a high price which may be most relevant evidence in the prosecution or the ascertainment of a criminal. Should they have protection from those? Should they be special material? Surely the magistrates, if it is the magistrates here, ought to be able to issue a warrant for these documents to be found. I am very glad to hear that so many journalists do not require any special consideration in their case.

Lord Hemingford

In supporting these amendments, I should like, if I may, to elaborate a little on the strength of the feeling within the ranks of journalism because, although the Government have been making signals now for many weeks—indeed, since the Committee stage in another place—indicating that they have only to be convinced that there is a consensus within the press, they have so far not apparently been convinced and therefore I feel constrained to go into the matter in rather more detail than we did on Second Reading. If I do go into a little more detail I hope that your Lordships will take it on the chin. I would rather that the noble Lord the Minister had accepted the general assurances that were given on Second Reading, most notably by the noble Lord, Lord Ardwick, but as he has not done so I feel that I must attempt some more detail.

There is never going to be absolute unanimity on any issue within the press, radio and television. It is not, thank goodness, in nature for there to be that kind of consensus. Nevertheless, on this particular proposition as noble Lords have already said, there is a quite extraordinary degree of agreement. For instance, in favour of the amendment we have the Director General of the BBC, which takes care of a huge section of broadcasting. He is joined by the editor of Independent Television News, the Managing Director of Granada Television, the Director of Programmes for London Weekend Television, and the senior commissioning editor of Channel 4 television—not much doubt, one would think, about consensus in the broadcasting world.

Turning to the national press, we have the amazing fact that the editorial directors of every national daily except for the Daily Star, the Morning Star and The Times—I put them in alphabetical order—are in support of these amendments. Those three have given no indication that they are opposed. Six editors of national Sunday papers and the editors-in-chief of Reuters and the Press Association, our two great news agencies, are also in support. Not much doubt about consensus in Fleet Street.

In the regional press, support is also strong. The editors of 13 regional morning papers, 45 regional evening papers and four regional Sunday papers support the amendments. Not much doubt about consensus in the regional daily papers. The editors-in-chief and editorial directors of two of the largest provincial newspaper groups and the two smaller ones are in support. One hundred and forty-one editors of local weekly papers have gone so far as to signify their support, too.

The National Union of Journalists is not t body with which I always agree—indeed, it once expelled me from membership—but in this particular matter we are in agreement. Disagreements stem mainly from industrial matters and in this particular case, where there are no industrial connotations, it is fair to say that far more journalists belong to the National Union of Journalists than to any other trade union, and in the absence of any evidence to the contrary, we may assume that it speaks for its members on this matter. Certainly evidence is not lacking when, as is quite often the case, it does not speak for its members.

The Newspaper Society is often at odds with the NUJ and I confess that I have myself sometimes been in disagreement with the Newspaper Society. But the society, representing hundreds of employers and newspaper owners, supports these amendments. The directors of the Periodical Publishers Association and the chairman of its editorial committee similarly support them. So there are the supporters of these amendments—a pretty formidable crew, by any standards, I should imagine.

What of those who oppose the amendments? Who are they, and what is the strength of their advocacy? First, there is the Institute of Journalists, a smallish body whose existence as an alternative to the National Union of Journalists is, in another context, of the greatest importance. I do not want to minimise them on that account; nevertheless they are not numerous. Their chief spokesman on this issue is not a journalist, and I feel this is a matter on which journalists are best able to grasp the kernel of the argument. In fact, I venture to suggest that all good journalists know in their bones that the Bill, as it stands at the moment, is wrong. At any rate, if the Government wish to tot up the number of divisions ranged on either side on this issue, they will see that the Institute of Journalists are not terribly significant.

Then there is the Press Council, a body of great importance in the field of complaints against the press. I say nothing against the Press Council in that respect. I believe its existence, its efficiency and, above all, the amount of use that is made of it is of the greatest importance: but its record in defence of press freedom is not so conspicuous. It has not done much that is bad, but it has left a great deal undone, and it has a strong lay element, which I suggest makes it less than reliable as a bellwether of press opinion. There is not much for the Government to worry about so far.

Finally, there is the Guild of British Newspaper Editors. I declare an interest as a loyal, but critical, member and as a past president of that organisation. At the last count, in September 1983, it had 323 ordinary members, 289 of them in England and Wales, where this legislation applies. Of course it does not apply to Scotland, where most of the other members are. Twenty-two editors had joined in the previous 12 months, and 50 members had resigned. I have said to the guild, and I repeat to your Lordships now, that there is a crisis in that organisation which is not at present being solved.

The guild's council has declared itself in favour of preserving the present special status provided in the Bill for, material acquired or created for the purposes of journalism". Yet, as reported in the Observer of 24th June, guild officials admit that this may not reflect the views of its members.

An analysis of the figures should put the guild's position in perspective. By no means all editors belong to the guild, but the position is that in England and Wales 222 editors—most, but not all, of them guild members—have personally expressed support for the line that we are taking tonight by signing the manifesto which noble Lords have already mentioned. On the other hand is ranged a body which could, at most, muster 289 editors, which has conducted no poll of those individual members and whose officers are reported to admit that the official line may not represent the views of the membership. On this issue, the guild is simply not credible as a mirror of opinion among editors. The Government are of course not required to take account of the views of editors and journalists in forming this legislation; but they have indicated that they will do so. In those circumstances, I believe that to rely on suggestions that the profession is divided simply will not hold water. I therefore hope that we can be given some encouragement that the enormous strength of this consensus is at last beginning to be recognised.

Lord Kilbracken

As a working journalist and a member of the NUJ—I have not yet been expelled from it—I should just like to rise for a moment to express my complete support for these amendments for reasons which have been so admirably put forward by the noble Lord, Lord McGregor. Journalists are ordinary people and do not require any special privileges. I last supported the noble Lord, Lord Campbell of Alloway, on the subject of amusement machines and I shall be very happy to do so again on this rather more important question tonight.

10.18 p.m.

Lord Hartwell

I do not want to make this discussion longer than it has to be; but perhaps, as one who has been as long in journalism as anybody else in your Lordships' House, the Committee might like to hear what I have to say. Practically all of it has been said already. What I should like to do is to tell it in a different way, because all the speakers seem to assume —if one does not know anything about it—that this Bill has just been produced, and the Government are being very pigheaded about it. It has a long history going back to the beginning of 1982, and I think that the Government have been rather goaded in this matter. I have deep sympathy with their position. They have been bombarded with advice from many quarters. Sometimes that advice has been changed, and sometimes it has seemed self-important.

This is a very wide-ranging Bill and the part about journalists and journalistic material is a very small aspect of it. I cannot help feeling that the Government wish to get on with it. In the early stages, so many people expressed a view that journalism is a caring and privileged position. The Government have said, having taken over the Bill from the previous Parliament, "If that is what they feel, let us hear them all and if they want to be caring and privileged, let them be so. Let us not put ourselves in the position of making martyrs of them." That point of view was put with some indignation by the Under-Secretary, Mr. Mellor, in another place in Committee who said: In response to the tirade—or tidal wave—of criticism, my predecessors came to a certain conclusion … we just do not want to be led up the garden path again … after which they resile from their position, and say something completely different. The kernel of the matter is: who are these people? This has already been discussed at some length, though not in perspective.

The noble Lord said on Second Reading that we are a "divided profession" but that he would be prepared to listen to "further views". Mr. Mellor had said the same thing in Committee in another place, and the Home Secretary on Report said it again. In other words, they say that if the opponents of this clause show that they are as united as journalists ever can be, then the Government will chuck it. I hope that we have nearly reached that stage.

One must admit, as nobody else has, that when the first Bill was introduced there were editorials, which Mr. Mellor quoted, in some national newspapers —The Times, the Guardian and the Daily Express—questioning that no specific protection was to be given to journalists. However, the Committee should realise that most newspapers produce three—or certainly two—leading articles every day. That, with their Sunday editions, makes a thousand leaders a year. Very often they have to be written on documents which are thrown at them between three or four o'clock in the afternoon of the day preceding publication. All the comments which were quoted in another place were made as asides, in general criticisms of the Bill as a whole.

Delane used to say that if you want to box the compass you should take four days, doing it in easy stages. Some of the national newspapers I have quoted took longer than that: but their editors have all been of one mind since the new Bill was published in the autumn of last year. There have been some statistics about who supports them and who does not, but I would stress the position about national editors who seem to me to be very much more important than anybody else.

Almost all of the national daily and Sunday newspapers have signed a letter saying that they are against this clause and in favour of the amendment. It is true that, of the 17, three did not sign, but all three of them have sister newspapers whose editors did sign. I would suggest to the Government that they should not be influenced by the fact that the national editors were among the few people who did not lobby them. National editors never lobby anybody, ever, in concert. The nationals should have great attention paid to them, because they have by far the biggest staffs and their readership is far greater—15 million every day and 18 million on Sundays. Allied to them is the editor-in-chief of the Press Association, who has far more reporters than any one newspaper.

A great deal has been said about the Guild of British Editors, which is a slight misnomer because they are all regional. I shall not go into the statistics, but the present situation is that the majority of them are in favour of this amendment.

So who is against the amendment and in favour of this clause? There are two: the Institute of Journalists and the Press Council. However, I stress that the matters which we are discussing are matters for editors and not for the rank and file. The editor is the man who, in law, is responsible for what goes into his newspaper. Whether or not this clause is passed, he will remain responsible.

The institute, which is the smaller but the older of the two journalists' trade unions, is opposed to the National Union of Journalists. I do not want to say anything against them but I do not think that either the institute or the National Union of Journalists has any standing in this matter. Trade unions are about pay and conditions. They may have their codes of practice, but editors do not recognise them. Editors have their own codes of practice according to the type of newspaper they are conducting. In any case, so far as the institute was concerned, the members were not consulted in advance. The institute's policy was set out in an article in a trade paper called UK Press Gazette. There remains the Press Council, which is naturally considered with much more awe. Its remit is that of an ombudsman as regards the press but not broadcasting. Its function is to pronounce on standards, and to see that misrepresentations are corrected—and, if necessary, reprimanded. But why it should want journalists to be privileged, I cannot imagine. In any case, again, its view on this subject was issued initially by the director, and only later ratified by the council, which for the most part consists of part-timers who by definition must have had no close connection with newspapers.

So much for the divided profession, as the Minister calls it. But I do not believe that journalism is a profession at all. We have never claimed special status. Certainly we care, and we never hold on to documents which we recognise as threatening national security or which prove criminality. But we are not in a profession which gives us rights above those of the ordinary citizen. We do not give ourselves airs, and we do not wish them thrust upon us.

It is true that politicians are occasionally excessively civil to us—especially when they are not in office. But it does not follow that Parliament should grant us the same status as clergymen. We are not a profession, because anyone with aptitude can get in—and so nobody can he thrown out. There are no other qualifications. Perhaps I may give some examples of successful journalists, not from this generation, because that would be invidious, but from the last generation.

My father, the first Lord Camrose, started in journalism as a police court reporter at the age of 14. Lord Beaverbrook started as a millionaire proprietor. In fact the first editor he appointed—the late Sir Beverley Baxter—used to say that he had been told. "Bax—I'm making you editor because you're the only man on the paper who knows less about journalism than I do".

If we need no qualifications, there is no justification for singling us out as privileged persons. We are not a profession and we are not divided—or not much. Please may we be allowed to take pot luck with the rest of the citizenry?

Lord Ardwick

I spoke at length on Second Reading. Everything I said then was relevant to these amendments, and I do not propose to redeploy those arguments at any length tonight. In fact, the noble Lords who are co-signatories to these amendments have already said all there is to say with great cogency and force.

We who work on newspapers fear that the provisions of this Bill will lead to the emergence of a legal definition of a journalist. This would simplify the task of any government in the future which wished to regulate or license journalism, with all the dangers that that would carry for our democracy.

This is not one of those amendments which seek to torment, tease or even embarrass the Government. On the contrary, the Government are offering us journalists a gift, and it is we who are embarrassed. Most of us know what it is to be offered a gift by a generous person who has nothing but the best motives, and then to have to reject it, for some gifts compromise the recipient. They change the relationship between he who gives and he who receives. That is our position today. We are offered special protection, and this would change our relationship with Government and would change our status in society. These are undesirable things. We should become a privileged class. We should no longer be able to plead that the freedom of the press is not just the freedom of writers and of printers, but is to be protected because it is a freedom for all citizens to exercise and enjoy.

I urge the Government to allow us to reject their gift while expressing to them our grateful thanks for their goodwill in offering it to us.

Lord Elton

There seems to be a certain consensus in the Chamber this evening. I do not know whether or not your Lordships have noticed it. It did catch my eye, and I wondered how many lions there were in the den when Daniel went there!

These amendments seek to delete all references to journalistic material from Part II of the Bill. Those references serve as a protection to material created or held for journalistic purposes. My noble friend Lord Campbell of Alloway and his allies—his numerous, noble, widely dispersed and always distinguished and sometimes even learned allies—wish them out of the Bill because they wish to remove from journalists a special privilege which others do not have. That, I think, is clear, and if I have it wrong then they must stop me. I hope your Lordships will listen very carefully to what I have to say, because what matters is not really the number of those supporting this amendment at the moment in your Lordships' Committee or outside it but whether they have got it right. I believe that what they fear does not now exist in the Bill as drafted, and that what they now propose would actually put the danger that they seek to avoid into the Bill.

I shall come to that in a moment. I think I must first say what is in the Bill, and why it is there, before I say what would happen if we took it out of it. The Bill as drafted works like this. Throughout, the Bill addresses itself not to journalists but to journalistic material. There is no question of whether or not journalists belong to a profession. Whether they were appointed to run important newspapers because they knew nothing about the business or whether they were born and bred in the compositors' room and worked as cub reporters at the age of 16 is irrelevant. The Bill deals with journalistic material.

What is more, journalistic material held in confidence and consisting either of documents or of other records is wholly excluded from an application by the police for access to it unless there are existing statutory provisions which would allow the issue of a search warrant in respect of it. If there are such provisions, there is a special procedure set out in Schedule I to deal with it. All other types of journalistic material will constitute special procedure material. So far as that is concerned, the provisions of Schedule I will again replace provisions already on the statute book which empower magistrates to issue search warrants. They will also provide a means for the police to obtain access to material not covered by existing search warrant powers which constitute evidence of serious crime. In both cases this will be on the authority of a circuit judge rather than a magistrate.

The effect of the amendments proposed by my noble friend would be that journalistic material enjoyed no special protection as such. If the particular item concerned fell within the definition of excluded material in Clause 10, then it would be excluded material; if it fell within the definition of special procedure material in Clause 14, then it would be special procedure material; if it satisfied neither definition but still constituted substantial evidence of serious crime then it would be subject to the provisions of Clause 8. That is what these amendments seek to achieve.

Your Lordships will be aware of the irony of the fact that these provisions are in the Bill only following the very strenuous representations of the journalistic professions in the last Parliament. Your Lordships will also be aware that my noble friend seeks to take out of the Bill what was not at first in it at all; we put it in only on their recommendation. The Government saw great force in the argument that journalists should not have what amounted to a specially privileged position. This is what my noble friend now wants to establish; it is the argument that a protection that was appropriate to social workers and priests was not appropriate to reporters and editors.

I also remember that we were eventually over-persuaded not just by the apparent unanimity of the profession—and I understand that it is always "apparent", at best—which was important, but also by the force of their arguments, which were very persuasive. The clear message we received was, first, that the freedom of the media depended crucially upon the provision of special protection for confidential journalistic material in order to safeguard the identity of sources; and, secondly, that the provisions of Clause 8 did not provide sufficient protection for evidence of crime which might not be subject to considerations of confidentiality, such as untransmitted film, but which, nevertheless, raised special issues concerning the balance of public interest.

The last Government responded to these concerns and undertook to meet them, and when my right honourable friend reviewed the provisions of the Bill before reintroducing it he, too, was persuaded by the merits of the argument that there was a genuine need for special treatment. However, he made clear that he would reconsider the matter in the light of further representations from those most directly concerned. I shall return to those representations in a moment.

First, I must make it clear that we continue to believe that, the question of consensus aside, there are sound arguments for conferring special protection not on journalists, but on journalistic material, thereby protecting the free and uninhibited flow to the press and the rest of the media of information on which they depend.

In the first place, it is only by making it clear that confidential journalistic material is excluded material that it is possible to be sure that confidential sources will not be disclosed on the order of a court. Those working in the press and broadcasting media have always argued, in the strongest terms, that the confidentiality of their sources should be respected; and I have not heard anyone retreat from that position tonight. The position of those who now criticise the Bill seems to be that journalists, therefore, should not be compelled to identify their sources, but they should be entitled to run the risk of arguing unsuccessfully for confidentiality in the courts and to be punished for contempt of court if the court holds against them. Since both journalists and the Government agree that the Bill should confer no new powers to compel the identification of their sources, it is surprising that some journalists should be so keen to open up exactly this possibility.

The Bill prevents the issue from coming before the courts in the first place. This will save unnecessary court proceedings. But my noble friend and his distinguished and numerous allies are prepared to face the courts. This is the price they are prepared to pay. So we must then ask ourselves: what are they paying it for? Their purpose is to avoid there being a necessity, or even an inclination, on the part of the courts to define what is a journalist. The concept "journalist", they feel, should remain undefined and thus act as a first defence against the establishment of lists of journalists and, at some remote stage, the development of regulations on both journalists and the press. The noble Lord, Lord Ardwick, concentrated that point in a few pungent sentences.

The results which they fear may follow from the Bill as drafted are results that the Press Council regard as remote and hypothetical, and I think the description is accurate. However, the freedom of the press is a concept close to the hearts of constitutionalists and to this House. It has connections with the more absolute concepts of political freedom and democracy itself. I readily accept that. We must not, therefore, put this danger lightly aside. We must, instead, ask ourselves whether removal of the protection now in the Bill makes it more or less likely that the courts would have to ask themselves what is a journalist and, by providing an answer, set journalists for ever apart as a marked and, therefore, it is suggested, a regulatable body.

What would happen if the protection were removed? What if the police were able to apply to a court for access to evidence of serious crime, even though it had been acquired or created for the purpose of journalism? The first question that would arise on such an application would be this: should the police apply under Clause 8 or Schedule 1? The answer would depend on whether the material was or was not special procedure material as defined in Clause 14.

I know that your Lordships want to get into the Division Lobbies. I assume my noble friend wants to get into the Division Lobby quickly, so I do not want to follow the process in detail. I would only say that under Clause 14 material is special procedure material if it is held in confidence and has been acquired or created in the course of trade, business, profession or other occupation. These are crucial words, as your Lordships will see in a moment. As my right honourable friend pointed out in another place, the police would have to apply under Schedule 1 in the case of material held by someone who was a professional journalist, but they would have to apply under Clause 8 in the case of material held by somebody who was not a professional journalist. So the effect of removing all references to journalism in the Bill would be that professional journalists enjoyed a protection greater than that afforded to other occasional contributors to press or broadcasting material.

Whether the application should be under Clause 8 or Schedule 1 would depend entirely on whether or not the person who held the evidence was or was not a professional journalist. A definition would be essential, but that is precisely what the noble Lords have with such persuasive oratory told your Lordships that they wish to avoid. So it seems that the argument must fail on those terms. I ask noble Lords to consider, even if the whole of the rest of their case is valid, whether they really want to press this amendment in order to put themselves in the peril which they are so vigorously trying to escape.

There are other matters. There is the question of unanimity. The noble Lord, Lord Hemingford, who described himself as a loyal ex-member of the Guild of British Newspaper Editors, and revealed to us the—

Lord Hemingford

I am sorry. I am still a member, loyal but critical.

10.42 p.m.

Lord Elton

The loyal but critical member revealed to us that it was riven by disagreement. But it appears that what the disagreement has yielded is the preponderance of a view which favours the Bill and not the amendment. The guild wrote to us on 7th February to say—and I quote from these letters only the relevant passages— We continue to believe that the position could be improved by a phrase based on publication rather than journalistic material. However, if that is not an option, the majority view of the Guild"— it recognises the divisions— remains as outlined to you when we met last July to accept the substance of the clauses giving protection". The Independent Television Companies Association wrote on 23rd February: The majority of companies feel that if our original submission in favour of material acquired or created for purposes of publication is not included in the Bill, then it would be better to retain journalistic material rather than have no protection at all". The Press Council—again the noble Lord sought to belittle its importance—said on 4th May: The considered and reconsidered view of the Press Council is that on balance the provisions relating to journalistic material now in the Bill should be retained. The Council arrived at this view by a very substantial majority. It hopes the Government will retain the provisions on Report stage in the House of Lords". There are other points.

But I think that the point one has to come back to is this. I understand the desire of the journalists not to fall into a category in which some grey-suited, jackbooted future Government could force them to adhere to repressive rules, interference from Government and censorship. I understand that, but the fact is that the amendment that my noble friend and his distinguished allies are pressing on your Lordships would have exactly the effect of exposing them to that danger, if that danger arose, as they claim it does, from their being described or defined as a category in the courts. I take leave to think that that is rather a remote danger. I think that their fears are excessive. But I do not want to go on longer, because it seems that what I have said appears to me, on profound reflection, to be irrefutable. I do not think my noble friend will want to put himself in that position by pressing this amendment. We are at one in what we want to achieve. It seems it would be ironic if he were to do that.

Lord Avebury

May I briefly intervene in this debate in order to point out that the noble Lord the Minister on occasions seeks to distinguish at the moment between people who are journalists and people who are not.

He will probably recall the case which I am going to mention. It is that of Mr. Ian Cameron, about whom he had some correspondence. Mr. Cameron sought to visit a prisoner, Mr. Frank Marritt, in Long Lartin. He was denied permission to do so on the grounds that he refused to sign an undertaking that he would not publish any of the material derived from his discussions as a journalist, with the prisoner. The prison authorities and the Minister at first insisted that Mr. Cameron was a journalist because of articles which had been published by him in national newspapers, until it was pointed out that the only material of which Mr. Cameron was the author which had ever appeared in any newspaper was a letter to the Daily Telegraph. In the end, the Minister and the governor of the prison climbed down and apologised to Mr. Cameron.

However, the point remained that if it had been established that he was a journalist, he would have then been forced to sign this undertaking and in default of his willingness to do so he would have been prevented from visiting the prisoner with whom he had a very long-standing relationship, extending over many years.

This problem arises from the definition in Clause 13, that; 'journalistic material' means material acquired or created for the purposes of journalism. So the courts are going to have to decide what were the motives of the person who held this material: did he keep it for the purposes of publication or was he, as in the case of Mr. Cameron, obtaining it for another purpose? In the case of Mr. Cameron, he was obtaining the material simply in order to assist the prisoner in that case to make his representations to the authorities concerning his sentence and matters connected with it.

I think that this forces the courts into deciding whether this person has embarked on a career of journalism or whether he is collecting this material for some other and completely separate purposes. So the question at which we are looking and which the Minister says is already resolved under the Bill for the satisfaction of those who moved the amendment is, in my respectful submission, brought into plain view by one's first consideration of the definition in Clause 13(1).

The problem has not been resolved. While I was listening very closely to the Minister, it has not been resolved to my own satisfaction. I was a member of the National Union of Journalists. Having heard the whole of this debate, I am still convinced that amendments are necessary. I should not like to undertake to say whether or not the form of them is precisely right. However, I think that as an expression of opinion of the Committee it would be right for these amendments to be put into the Bill so that there would be an opportunity for further reflection by the Minister on everything that has been said so far.

Lord Elton

I shall be very brief because it is getting late. The noble Lord referred to a case which I well recall. The case turned on the interpretation of the prison rules. However, a fortiori, if he is right, if governments do seek to define journalism, the Committee will be all the more anxious not to force the courts to do this.

On the noble Lord's second point on the definition of Clause 13, I hoped that I had made it clear that all that is required is to decide whether or not the material has been acquired or created for the purposes of journalism; not what sort of person has dealt with it. There is no requirement to define a journalist. Obviously if something in particular is written as an article to go into a newspaper, that is journalistic material. If it is a letter to the editor, then it is clearly of a different character. I cannot make the point more clearly than I have sought to make it. If I have failed, I apologise. At least I can claim that I have been overborne by numbers. However, it seems to me as plain as a pikestaff that if you put this amendment in the Bill, you will force the courts to define what is a journalist.

Lord Hemingford

May I congratulate the noble Lord on the ingenuity of that argument. However, I can assure him that I would much rather be in court arguing about material acquired or created in the course of any trade, business, profession or other occupation or for the purpose of any paid or unpaid office.

Lord Elton

Would the noble Lord give way because he has just made what I regard as an interesting admission. He wants to be specially treated. He wants to be treated like a doctor or a priest.

Lord Hemingford

No. On the contrary, I was going on to say that I would much rather be in that situation than arguing about material acquired or created for the purposes of journalism. It has nothing to do with being in a special position. We want to be treated just like anyone else. That is the essence of the thing. Obviously, I would rather not be caught at all, but I would rather he there on that basis than arguing about material acquired or created for the purposes of journalism.

Lord Thomas of Swynnerton

May I ask the Minister a question? What would be the position, in his view, of someone who looked upon himself as a writer and not as a journalist?

Lord Elton

The position would be the same for writers, dustmen, acrobats, priests, prostitutes—anyone. It does not matter what they do. What matters is w hat they produce. If a dustman writes something for journalistic purposes, it is caught. If he writes it for other purposes, it is not. So the noble Lord, who may have an interest in this—something which had not occurred to me as I sprang nimbly to my feet—need not feel that this would put authors into a special category.

Lord Campbell of Alloway

I had not realised that this could become such an emotive subject and cause so much confusion, especially on my own Front Bench. Before dealing with the speech that has been made from my Front Bench—I cannot take long about it at this hour—I should like to thank all noble Lords who have spoken from all corners of the Committee, from the depth of their expertise and their own knowledge, in support of the amendment. My noble friend the Minister read his Home Office brief at great speed and, by a stroke of ingenuity—

Lord Trefgarne

Order!

Lord Elton

I am tempted to my feet because I feel that the noble Lord might like to know that I wrote the speech myself. Since it is plainly, judged by the strength of feeling against me, going to fail, I should not like it to be laid at the door of anyone else.

Lord Campbell of Alloway

I am grateful to my noble friend for the information that he wrote the speech himself. I was about to suggest that it was for many of us, very difficult to understand—that it did, in fact, stand the whole problem on its head, and that the suggestion that by accepting the amendment you create the peril that it is designed to avoid is wholly unsubstantiated. If noble Lords who have a practical interest in these matters have spoken in favour of the amendment—it is fair to assume that they have sought legal advice—for the reasons that they have given, if the noble and learned Lord, Lord Denning, supports the amendment, and if other noble Lords who have legal expertise support the amendment, it really is not the right time, at this hour of night, to bandy with my noble friend the Minister the point of legal construction that he raised, save to say, with the utmost respect, I do not accept it.

Here, there is a serious problem. If there is a serious problem, I would beg my noble friend the Minister to implement his undertaking that he will keep an open mind. He has heard what has been said on all sides of the Committee. I would ask him in the circumstances if he can give some indication that he will keep an open mind between now and Report stage so that this matter may be further considered.

Lord Elton

I really wonder whether there is anybody else here to say anything more. We have discussed this matter since the Bill was first introduced in a previous Parliament. Your Lordships have done your best, and I have done mine. I am quite resigned to defeat, if it is necessary, but would it not be useful to get the matter out of the way now?

Lord Harris of Greenwich

May I briefly say a few words as somebody who has not spoken before in this debate? This is the first time that your Lordships have discussed this issue. The noble Lord suggests that it has been discussed time and again; it has not. I suggest to the noble Lord, with great respect, that apart from himself, every single person who has spoken has done so in favour of the amendment. In those circumstances, would he not agree to go no further than to say that he will report this matter to the Home Secretary and will consider it before the Report stage of the Bill? That does not seem unreasonable, and it is in accordance with the general traditions of this Chamber.

Lord Campbell of Alloway

If my noble friend the Minister could give some form of undertaking merely to consider the matter, it would surely satisfy the mood of the Committee as it has been expressed this evening.

Lord Elton

I am sorry, but I could not quite hear the beginning of what my noble friend said. I thought that he was moving the amendment.

Lord Campbell of Alloway

No, I was not moving the amendment. I am seeking to avoid dividing the Committee. I am asking, I am begging, my noble friend the Minister to pay heed to the views and the worries expressed by the Committee and at least to say, without commitment, that he will consider this matter further. That is all that I am asking. I cannot do more.

Lord Elton

My noble friend places me in a difficult position. I cannot see that there is room to give on this matter. We have spent 70 minutes on it this evening. If I undertake to ask my right honourable friend to read this debate with great care tomorrow, I can do it in the wake of either a Division or an undertaking that he will read it tomorrow. Either way he will read it tomorrow. I do not think that your Lordships will want to spend an equivalent amount of time on this matter at the Report stage. I do not know whether my noble friend will be satisfied with that undertaking and whether we can agree to dispose of the matter in 10 minutes the next time round. I am not sure whether my noble friend can deliver the second half of the argument.

Lord Campbell of Alloway

I was only seeking to produce what appeared, with respect, to be a sane way in which to deal with a serious problem. I cannot understand how one can undertake to spend 10 minutes here or 10 minutes there on this matter. What I wanted was a form of genuine assurance that fair consideration would be given to the concern expressed from all sides of your Lordships' Committee. If that cannot be done, I shall have no alternative but to take the opinion of the Committee, which I do not want to do.

Lord Elton

I do not want to delay the proceedings further. I do not want your Lordships to think that your concern is not a matter of importance to my right honourable friend. If your Lordships read the Second Reading debate, you will find that the list of outside supporters and every other point that has been made was then raised in some form or another. Many more points have been raised outside this Chamber. With the greatest respect, if your Lordships wish to tell the Government that they are wrong, this is the time to do it. If your Lordships wish to say that the Government are right, this is a very good time to do it.

Lord Elwyn-Jones

The hour is very late. It has been a very long day. This is a matter of great controversy and of very considerable importance. Would not the Government Front Bench feel well advised to consider returning to this matter, thus enabling it to be brought before your Lordships again? I should have thought, with great respect, that that would be the more seemly course to take. I must say that myself I take a somewhat objective view about the issues, but I should have thought that on the whole, in the interests of the Committee, the better course might be to say, "Yes, very well, let us think about it again and fight, if necessary, the battle another day". I may be making a thoroughly unhelpful observation, but for what it is worth, that is my personal view.

Lord Elton

I really do not think that I have anything more to say.

Lord Campbell of Alloway

Then I am left to take the opinion of the Committee.

11 p.m.

On Question, Whether the said amendment (No. 61) shall be agreed to?

Their Lordships divided: Contents, 41; Not-Contents. 46.

DIVISION NO. 3
CONTENTS
Airedale, L.	Kilmarnock, L.
Amherst, E.	Kintore, E.
Ardwick. L. [Teller.]	Kirkhill, L.
Atholl, D.	Lawrence, L.
Avebury, L.	McGregor of Durris, L.
Beaumont of Whitley, L.	Maude of Stratford-upon-Avon, L.
Birk, B.
Blease, L.	Mishcon, L.
Campbell of Alloway, L. [Teller.]	Nicol, B.
	Pitt of Hampstead, L.
Dean of Beswick, L.	Ponsonby of Shulbrede, L.
Denning, L.	St. Aldwyn, E.
Elwyn-Jones, L.	Stedman, B.
Elystan-Morgan, L.	Stewart of Alvechurch, B.
Harris of Greenwich, L,	Stewart of Fulham, L.
Hartwell, L.	Stoddart of Swindon, L.
Hatch of Lusby, L.	Thomas of Swynnerton, L.
Hemingford, L.	Tordoff, L.
Hooson, L.	Underhill, L.
Hunt, L.	Wigoder, L.
Hutchinson of Lullington, L.	Winchilsea and Nottingham E.
Kilbracken, L.

NOT-CONTENTS
Abercorn, D.	Hailsham of Saint Marylebone, L.
Attlee, E,
Avon, E.	Halsbury, E.
Belhaven and Stenton, L.	Hood, V.
Bellwin, L.	Hornsby-Smith, B.
Beloff, L.	Kaberry of Adel, L.
Belstead, L.	Kilmany, L.
Brabazon of Tara, L.	Kinnoull, E.
Brougham and Vaux, L.	Long, V.
Bruce-Gardyne, L.	Lucas of Chilworth, L.
Cairns, E.	Macleod of Borve, B.
Caithness, E.	Marshall of Leeds, L.
Cathcart, E.	Molson, L.
Coleraine, L.	Mottistone, L.
Crathorne, L.	Norwich, Bp.
Cullen of Ashbourne, L.	Rankeillour, L.
De La Warr, E.	Skelmersdale, L.
Denham, L. [Teller.]	Swansea, L.
Elliot of Harwood, B.	Swinton, E. [Teller.]
Elton, L.	Trefgarne, L.
Gardner of Parkes, B.	Trumpington, B.
Gibson-Watt, L.	Vaux of Harrowden, L.
Glenarthur, L.	Whitelaw, V.
	Wise, L.

Resolved in the negative, and amendment disagreed to accordingly.

11.7 p.m.

[Amendments Nos. 62 and 63 not moved.]

Clause 10, as amended, agreed to.

Clause 11 [Meaning of "items subject to legal privilege"]:

Lord Hunt rose to move, on behalf of Lord Donaldson of Kingsbridge, Amendment No. 64: Page 12. line 17, at end insert— ("; and () documentary or other records concerning a client who can be identified from them and which are made in connection with the giving of legal advice to the client.")

The noble Lord said: On behalf of my noble friend Lord Donaldson I rise to move Amendment No. 64—

Lord Elwyn-Jones

Will the noble Lord allow me to intervene? It is now seven-and-a-half minutes past 11, and we have been engaged upon this exercise all day, or most of the day. It has been a tiring and difficult Bill to deal with. I notice that the noble Lord, who has handled it with great valour and ability right through, is not asking for help, but it is intolerable to resume this matter now, at this hour, when there is no requirement in any reasonable calendar of legislation to make that a necessity. It is too late in the day to deal with important matters affecting the liberty of the subject, and affecting, too, the police and criminal justice. I hope that the Chief Whip will see the wisdom, fairness, and sense of what is proposed.

Lord Denham

I am, of course, in the hands of the Committee over this matter, but I must remind the noble and learned Lord, Lord Elwyn-Jones, that in this Chamber we have no selection of amendments, and every noble Lord has the right to put down any amendment to any Bill that he wishes. We have no closure. We have no guillotine. This, I think your Lordships feel, is very right and proper for a revising Chamber.

Any noble Lord may spend any amount of time he wishes discussing these matters. The corollary must be that we must get the business of the Government of the day through, and if your Lordships wish to spend rather longer on certain amendments than on others, and if the day is taken in considering a certain Bill proliferately, it may mean asking your Lordships to sit later and later into August, and that your Lordships would not want. There has to be a certain amount of forbearance exercised by this House if it is to get Government business through—any Government, the Government of the day—and to ask to speak at great length on any amendment, and then to rise at ten past eleven does not add up.

Lord Elwyn-Jones

If I may revert to my submission, there has been no filibustering from any part of the Committee this day. If I may say so without impertinence to the Chief Whip, he has not honoured us with his presence in this debate; obviously he cannot. That is the position, and any imputation that there has been a deliberate filibuster and delay is quite unmerited. It has not happened. The noble Lords who have spoken have exercised reasonable economy without, I think surprisingly, an exception during the course of the day.

Lord Denham

I do not accuse any noble Lord of filibustering on this, but there is in this House freedom to speak without any form of limit. The programme is such that this House has to get every Bill through that another place gets through. This happens with every Parliament. We have agreed, through the usual channels, that there shall be a number of days for this Bill and if we rise before we have reached the generally agreed place in a Bill it just means sitting that much later on another day. I am afraid this is the sheer mathematics of the occasion. If we rise now—which, if the Committee wishes, it may be right to do—we may have to sit until two or three in the morning another day.

Lord Harris of Greenwich

The noble Lord the Government Chief Whip does not seem to have a very long memory. He will recall from his experience as Opposition Chief Whip the protest made by the noble and learned Lord, Lord Hailsham of Saint Marylebone, speaking from the Opposition Front Bench, when the then Labour Government wanted to sit beyond half past nine in the evening on the Criminal Law Bill.

The fact is, of course, that the noble Lord, Lord Denham, is right that we have an obligation to consider Government legislation, but a number of us drew the Government's attention to this business of sitting late at night on this particular type of legislation which affects the liberties of the subject. It is inappropriate, in my view—and I am quite sure in the view of a number of my noble friends—to sit at this time of night. We have not even been told by the noble Lord, Lord Denham, what part of the Bill we should reach before he is prepared to adjourn consideration of this Bill. I am bound to say that the explanation he has given for sitting beyond this time in the evening is, so far, not very persuasive.

Lord Denham

The noble Lord, Lord Harris of Greenwich, may say that, but the noble Lord, Lord Harris, will remember that, when he was speaking from this Dispatch Box when he was in charge of a Government Bill, he had to get his Bill through and he had a certain number of days to get that Bill through in.

If we do not reach a stage in the Bill for a particular day, we have to sit rather longer on it the next day or speak that much shorter on it. We should not argue these things over the Floor of the House. They are much better agreed through the usual channels. If I can have a word later through the usual channels we can come to some accommodation. But I must tell the Committee that, if they rise now on this day, to get the Bill through in the reasonable number of days allotted for it we shall have to have one very late sitting indeed. The noble and learned Lord must appreciate that we cannot rise at a reasonable time for the Summer Recess if we are to be limited as to the number of amendments we can get through in a day so that the number of days of a particular stage of the Bill proliferate.

Lord Wigoder

May I make two observations? First, the noble Lord the Government Chief Whip will not want it to be suggested that any sort of delaying tactics were used over the last amendment particularly having regard to the fact that a number of noble Lords who spoke in that debate are probably making their only substantial contribution throughout the whole of this Bill. Secondly, if the noble Lord the Government Chief Whip wishes to consult through the usual channels, will he bear in mind that there are usual channels in all the political parties in this House?

Lord Ponsonby of Shulbrede

I think that there is another point which should be made clear. The noble Lord the Chief Whip said that the number of Committee days to be allocated to this Bill had been agreed. In fact, I had expressed the view, and I know that the view had been expressed by other parties, that four days for the Committee stage of this Bill is inadequate and that there should be a fifth Committee day for this particular Bill.

Lord Denham

Yes. Of course I will agree to what the noble Lord, Lord Ponsonby, says, and of course I take very great note of what the noble Lord, Lord Wigoder, says. But I think that probably it will not be very advantageous to continue with this particular argument at this particular time. Perhaps if we adjourn the Bill at this stage we can then get the usual channels functioning. But I think that we should consider that this Bill should be got through in five days.

I want to make it absolutely clear to noble Lords who spoke on this particular amendment that I am not suggesting in any way that they filibustered. The difficulty over a Bill of this type, where there are a number of different matters bringing in a number of different Peers, some of whom are interested in one part and some in another, is that it makes the getting through of the business that much more complicated unless there can be general goodwill. I think that, after this exchange, possibly we can achieve something along these lines. I beg to move that this House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

House adjourned at seventeen minutes past eleven o'clock.