§ 1A Clause 2, Insert the following new clause—
§ "Anonymity of suspects and defendants in certain cases (No. 2)
The Commons disagree to the amendment proposed by the Lords in lieu of the words left out of the Bill by Commons Amendment No. 1 for the following reason—
§ 1B Because it is unnecessary to make provision for the anonymity of suspects and defendants.1912
§ Baroness Scotland of Asthal
My Lords, I beg to move that the House do not insist on their Amendment No. 1A to which the Commons have disagreed for their reason numbered 1B.
We recognise the difficulties associated with this area of law. Being accused of a sex offence often carries with it great social stigma, and the adverse publicity that often results from being linked to such an allegation can have serious consequences for a person's status and reputation.
Amendment No. 1C in the name of the noble Lord, Lord Thomas, seeks to provide anonymity to a person suspected of an offence under this Bill up to the point of charge. It also provides for circumstances whereby the reporting restrictions can be lifted either by the suspect or by a magistrates' court, including a single justice, upon application by a police officer of the rank of inspector or above or an equivalent Customs and Excise officer. It provides for a penalty of a fine not exceeding level 5 on the standard scale. There are definitions of "publication" and "relevant programme" which follow those set out in the Youth Justice and Criminal Evidence Act 1999.
There are a number of deficiencies in relation to this amendment. It limits its scope to sexual offences under the Bill. That statement is ambiguous. It is not clear whether it is intended to cover offences in Part 1 of the Bill only or to include those set out in Part 2 as well. It also does not make clear whether it includes offences of aiding, abetting and counselling, and so on. If the provision is limited to offences in Part 1 of the Bill, that means that sexual offences set out in previous Acts will not be covered by reporting restrictions and nor will offences relating to child pornography under the Protection of Children Act 1978, with no obvious reason why that is so.
There is no defence for the commission of the offence, except where a relevant programme is broadcast live. Therefore, the proprietor of a newspaper would commit an offence if one of his staff revealed a suspect's identity, even if he had no knowledge of that whatever. It might be said that the penalty is only a fine and that therefore it is justifiable to create a strict liability offence in those circumstances. Regrettably, we do not agree. It should not be forgotten that the result would be that the proprietor would have a criminal record.
Amendment No. 1C provides that anonymity can be lifted by the court only on application of the police at the rank of inspector or above or an equivalent Customs and Excise officer. That would place an undue burden and difficulty on the enforcement authority investigating the crime. It would also mean that the victim or the press would not be able to apply for the defendant's anonymity to be lifted. It would also be most unfortunate for any amendment on anonymity to be made to Clause 2. Such provisions immediately following a clause on the matter of rape would fail to show sensitivity to the victim of such a crime and would give undue prominence to this issue. The clause seems properly to belong at the beginning of Part 3 of the Bill.
1913 We have listened very carefully to the representations from those concerned about the real harm that can be caused by the reporting of defendants' details. We also recognise that much concern in such cases arises from the damaging publicity that is often generated pre-charge. We believe that informed and strengthened guidance to the police and the media is preferable to any change in legislation.
Agreement has been reached with ACPO that it will amend its media and disciplinary guidelines to all forces to give greater prominence to the rules that govern the release of information about anyone suspected of, but not yet charged with, an offence. That stronger guidance has already been put into effect, bringing the importance of the issue to the attention of police officers.
The Government have held creative and constructive discussions with the chairman of the Press Complaints Commission. As a result, the press is now looking at its code of conduct to see how it can be strengthened to ensure that those suspected of but not yet charged with offences are not named in the media. The Government have gone much further than the proposed amendment.
We have made it clear in our dealings with the police and the media that we expect them to apply such self-regulation in relation to all offences, including the heinous crime of murder. The Government have never been of the view that sexual offences should be singled out in the way proposed by the amendment.
We understand why the noble Lord, Lord Thomas of Gresford, has sought—properly, in his view—to press the amendments. We understand, too, the mischief that he wishes to see cured. We clearly wish to address that ourselves. We will address it through the regulation that will be put in place. The Government will continue to work positively with the media and ACPO to ensure that self-regulation is adhered to.
Notwithstanding the unkind analysis that I have had to make of the amendment, I assure the noble Lord that I understand why he sought to craft something that might be a little better than that brought forward before. I am so sorry that he does not appear to have succeeded.
§ Moved, That the House do not insist on its Amendment No. 1A to which the Commons have disagreed for their reason 1B.— (Baroness Scotland of Asthal. )
§ Lord Thomas of Gresford rose to move, as an amendment to the Motion, That the House do not insist on its Amendment No. 1A to which the Commons have disagreed for their reason numbered 1B, at end insert "but do propose the following amendment in lieu of Lords Amendment No. 1A—
§ 1C Clause 2, Insert the following new Clause—
§ "Anonymity of suspects in certain cases
§ The noble Lord said: My Lords, the Minister referred to an unkind analysis of my amendment. Her analysis is not simply unkind, but wrong. I propose to set out why I believe that.
§ The reason given by the Commons for disagreeing to the amendment was that it was unnecessary to make provision for the anonymity of suspects and defendants. We totally disagree with that. The press codes that have applied in the past have failed to work, and it is time that Parliament took the responsibility of ensuring that people who may very well be innocent and never be charged enjoy anonymity in respect of terrible allegations made against them. The noble Baroness said that it applied only to sex cases. We say that such cases attract the most publicity, and, whether the allegation is established or a charge brought, such publicity results in considerable pain and anguish to a suspect. It can result in the ruination of his reputation and the destruction of his family life. Therefore, sexual offences are distinct for that reason.
§ They are distinct for a second reason. As we said in earlier debates on these provisions, the complainant who may well be lying, as happens in sex cases, is granted anonymity throughout, no matter the result of 1915 the case. So a person who is acquitted at the end of a trial, or who is never charged, may go through pain and anguish while the complainant herself has the cloak of anonymity.
§ I turn to the specific criticisms made of the Bill. In subsection (1) of my amendment to the Motion, we have made it clear that an allegation may refer to any sexual offence in the Bill. The noble Baroness said that we had not made it clear whether that covered Part 1 or Part 2. A sexual offence under this Bill clearly covers both Part 1 and Part 2.
§ The second criticism was that the author, publisher or programme editor, if it is a broadcast, will be punished and that they cannot be held responsible for faults of people under them. At the same time, the Government talk about introducing manslaughter against the directors and controllers of a company to make people responsible for the deaths of victims who may die as a result of negligence that has nothing to do with the management or the people who are charged. So the Government speak with one voice in that area and with another voice in this area. It is perfectly right that a publisher, an editor, or the person in control of a programme or the body that produces a television programme should be made responsible for offences of this nature, because unless the people at the very top carry that responsibility, nothing will be done to put in place the controls.
§ In our subsection (4) we have recognised that, with a live broadcast, a defence for such a person could be to show, on the balance of probabilities, that the body corporate or the editor took such steps as was reasonably practicable to ensure that no matter was included in the programme in contravention of the subsection. That provision has been put in for the reason mentioned by the noble Baroness, Lady Scotland, on the previous occasion that we discussed the matter; that in the course of a live broadcast—as happened in one very well publicised case—a guest may say something that indicates the identity of a person charged with an offence. In those circumstances it would be unfair for a television company, a radio company or an editor of a programme to carry the can.
§ We recognise that, but in relation to those within the chain of command, headed up by the editor and by the publisher, we believe that the responsibility has to lie with them. I will be interested to see whether the noble Baroness can justify in any way the Government's policy in seeking to make the heads of companies liable for manslaughter and at the same time make the argument that she has made in this case.
§ The noble Baroness also criticises this amendment for not referring to aiders and abettors. She knows that it is possible to charge anyone with aiding and abetting an offence. I considered that point. I am aware of the aiders and abettors Act; I cannot give the date of it but it is very familiar to me. It is certainly perfectly possible for a person to be charged with aiding and abetting an offence of this kind and to stand trial for that. The kind of person whom I have in mind is the police officer who leads an investigation and leaks to the press, as has happened, the details of a person who is a suspect. The 1916 noble Baroness says that they will put in place the press code although, interestingly, she said that they had not finally agreed on it. So the amendment is rejected without our knowing what will be put in its place.
§ Finally, a criticism made on the last occasion was that an application to a magistrates' court would involve some delay. For that reason, we have included subsection (6) so that an application by a police officer of the rank of at least an inspector can be made to a single justice, if necessary in his own home. It is not necessary to convene the court within the precincts of a magistrates' court for a magistrate to make an order. So the criticism of delay made the last time can no longer be made of this amendment.
§ I do not know why the Government take the attitude they do. It may be that they are in thrall to the tabloid press and simply dare not take a lead on such an issue. They simply fear the fact that there are newspaper proprietors who are making money from leaks, and they cannot face it. That is typical of how the Government have acted regarding the tabloid press. I think that we shall probably hear a little more about that issue before we finally finish the Session.
§ So, my Lords, I strongly support the amendment put down in the name of the Liberal Democrats. It is a very liberal point we make. It is met with hostility by the Government. That just indicates that any credentials they ever had for a liberal approach to matters of this kind have been lost and were lost years ago. I shall wait to hear the Minister's response before I decide what to do. I beg to move.
§ Moved, as an amendment to the Motion that the House do not insist on its Amendment No. 1A to which the Commons have disagreed for their reason numbered 1B, but do propose Amendment No. 1C in lieu of Lords Amendment No. 1A.— (Lord Thomas of Gresford. )
§ 7 p.m.
§ Baroness Noakes
My Lords, the noble Lord, Lord Thomas of Gresford, said that the Minister's analysis was unkind. I shall not accuse the noble Baroness of being unkind, but I have noticed, both today and last week, that she has taken an undue pleasure in criticising the very earnest attempts from these and the Liberal Democrat Benches, both in this House and in another place, to find a solution to what I thought was a common cause on a very real problem.
There have been many attempts to find a good legislative solution to the problem. All attempts have been comprehensively rejected by the Government. We continue to believe that these issues are important. Defendant anonymity is important, especially in cases of sexual offences. We are genuinely disappointed that the Government have failed to find a solution with us to those very real issues. If the Government had wanted to find a technically competent solution one could have been found, but they did not.
We on these Benches have throughout supported defendant anonymity on a pre-charge basis. We were minded to continue to support that this evening. However, the Minister in another place made it very 1917 clear earlier today that the Government will not change their mind if the Bill returns. That threat raises the prospect of the Bill being lost for the sake of defendant anonymity. We on these Benches are not prepared to let all the good things in the Bill be lost. So it is with very great regret that we find ourselves unable to support the amendment of the noble Lord, Lord Thomas of Gresford.
The Government have made it plain—and the Minister again made it plain this evening—that their hopes are pinned on a self-regulatory solution. We believe that effective self-regulation would be ideal. But if self-regulation does not work, more innocent lives will be ruined. I hope the Minister will at least make a clear commitment to using one of the very many legislative opportunities that I am sure her department will have at its disposal to act decisively if a regulatory regime is not agreed or, if having been agreed, proves to be unsatisfactory.
§ Lord Monson
My Lords, I previously rose to support the amendment of the noble Lord, Lord Thomas of Gresford, in principle although, even as a mere layman, I felt that as drafted it contained imperfections, omissions and ambiguities. The noble Lord has now vastly improved his proposed new clause. Although, as the Minister argues, it may still not be 100 per cent perfect, it is still preferable to leaving the law as it is. Therefore, if the noble Lord decides to press the amendment to a Division, I shall certainly support him.
§ Lord Wedderburn of Charlton
My Lords, it is necessary that some voice be raised from these Benches. There have been many claims for originality in the defence of the anonymity of persons who have not even been charged. It is traditional to our party to take up such a stance; it is not for want of belief that many in our party would support such a position. As I have heard the criticisms of the amendment, they have been answered point by point. The fact that this is populist stuff and a genuflection—with a liberal face— to the tabloid press is obvious. My party had better get used to the fact that, with the co-operation of the Official Opposition, the next election will be fought on a competition on who can "bang 'em up" most and who can make heavy petting at 15 illegal—which is what the Bill does and why, the Opposition seem to think, it cannot be lost.
It is incredible to many members of my party—few of whom are in the Chamber; a dozen people will have heard the argument but many will be brought to troop, lemming-like, through the Lobby—who know well that without the defence by way of mutual anonymity in highly sensitive cases, the tabloid press and even television will put them to a malign use, to the disadvantage of people who, as the noble Lord, Lord Thomas, said, may well be innocent. Codes of conduct; practice directions from the Government; or suggestions? What guarantee does the noble Baroness give us that that will produce any change of character in the media? None.
1918 I am driven to say that if the amendment is pressed to a vote, I shall be bound in conscience to vote for it.
§ Baroness Scotland of Asthal
My Lords, with the greatest clarity at my disposal, I say that this is not a populist move; neither are we genuflecting towards the tabloid press. Of course I hear what the noble Lord, Lord Thomas of Gresford, said about that. I also heard his exhortation to liberality, but that sits ill when we consider the amendment, because one tenet of our democracy is freedom of the press. That is something that we have always honoured; I had always believed that was dear to the hearts of Liberal Democrats as well. I am sure that it remains so.
The Government's stance represents a proportioned and reasoned response. We have been clear and robust with both ACPO and the media through the complaints council. We have made clear that we have identified a mischief that needs to be cured. The noble Baroness, Lady Noakes, was right when she said that if self-regulation can work well, efficiently and properly, that is the better course. We agree. We have also made it clear that the Government wish the police and the media to adhere to self-regulation, and that self-regulation is a privilege, not a right. If that privilege is abused, the Government will have to think about what alternative measures may be necessary to bring about compliance with what all sides of the House believe is proper. That is a moderate, proper approach, but it does not lack rigour.
My noble friend Lord Wedderburn—he remains my noble friend—could not be more wrong when he casts aspersions on the honour of this party and the Government. Having had the privilege and joy to deal with this Bill, the Criminal Justice Bill, the Anti-social Behaviour Bill and the Extradition Bill, I can reassure my noble friend that I have seen no lemmings yet, certainly not on our Benches. Our Benches have demonstrated their usual robust independence, as doubtless the Whips will demonstrate, and as my noble friend has demonstrated on occasions too numerous to particularise.
This is a proportionate response—the noble Baroness, Lady Noakes, is right. I commend the noble Lord, Lord Thomas of Gresford, on his tenacity, but, on this occasion, tenacity to press the amendment is not necessary. In response to the noble Baroness, the flaws that I have identified are real. 1 try to do that as gently as I can, but the flaws are patent. During the previous debate, I gave every opportunity to take guidance on how to address the matter, but it has not borne the fruit that others seek. I invite the noble Lord, Lord Thomas, not to press his amendment.
§ Lord Thomas of Gresford
My Lords, as I listened to the noble Baroness, the explanation by Sir John Falstaff in Verdi's opera "Falstaff", "L'onore!", flashed across my mind. I wish that I could play it over loudspeakers to the Cabinet room at full volume, so that the Cabinet could have some comprehension of what honour really is.
1919 As the noble Baroness recognised, the Liberal Democrat Benches, in co-operation with the noble Baroness, Lady Noakes, have worked very hard on the Bill. I pay tribute to her efforts. We have fashioned, in many parts of the Bill, a workable solution to what started off as something totally unworkable and that would have caused huge problems in the criminal justice system where sexual offences were involved. We have improved the Bill, and we have done it in this House.
So, when the Official Opposition are threatened by the Government that the whole Bill, which we have worked so hard to improve, will be lost on this amendment, I understand why they hold their current position. I do not blame them. As I have told noble Lords many times, my family motto is "Ar Bwy Mae'r Bae?"—"Who can we blame?". In this instance, the blame rests with the Government.
§ Baroness Scotland of Asthal
My Lords, no such threat has been made. It is for the noble Baroness and her party to decide whether they wish to have the Bill. We have made no threat about the Bill, and it is wrong to suggest that we put it at risk. Each party must choose how it wishes to deal with the matter. We have made plain our policy. The choice has been exercised; please do not blame us.
§ Baroness Noakes
My Lords, will the Minister agree that her honourable friend in another place made it clear that, if this House sent the Bill back amended again, the amendment would be comprehensively rejected, thereby imperilling the passage of the Bill.
§ Baroness Scotland of Asthal
My Lords, I have made it absolutely clear. We have stated our position and we have said that that position is not going to change. We do not imperil the Bill thereby. We have set and adhered to government policy and it is for Her Majesty's loyal Opposition to decide what they wish to do in response. That is not a matter for us. It is a privilege and joy for the Opposition to decide whether they wish to put the interests of the country first, or other matters.
§ Lord Thomas of Gresford
My Lords, I always admire the way that the noble Baroness, Lady Scotland, presents her case. She does it extremely well. However, we know and the people of this country will know when a threat is a threat and a positive threat was made in this place that the Bill would be lost if this amendment went back to the Commons. I have that in mind. I also have in mind that I cannot, because it has happened so often in these past few weeks, again watch the lemmings go over the cliff. The sight is too sad, so I will spare the Government in this case. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ On Question, Motion agreed to.