Lord Black of Brentwood
Main Page: Lord Black of Brentwood (Conservative - Life peer)Criminal Cases Review Commission (Information) Bill
Lord Black of Brentwood Excerpts“(7) If the material being requested under subsection (1) is protected by legal professional privilege or is journalistic material or disclosure could lead to the identification of a journalistic source, the person holding the material must be—
(a) notified in advance of the hearing of the application which must be held inter partes, and
(b) permitted to make representations to the court regarding the application.
(8) Where the material is of the kind provided for under subsection (7), the court may not make an order unless it is satisfied that—
(a) the material is of substantial value and relevant to the matter under investigation;
(b) it is not possible for the Commission to obtain the information by other means;
(c) it is in the public interest for the material to be disclosed, as determined by its benefit to any investigation; and
(d) taking into account the circumstances, there is no significant reason why the information should not be disclosed.
(9) “Journalistic material” and “legal and professional privilege” shall have the same meaning as set out in sections 10 and 13 of the Police and Criminal Evidence Act 1984.”
Lord Black of Brentwood (Con)
My Lords, as this amendment relates in many ways to the question of journalistic material and journalistic sources, I declare my interest as executive director of the Telegraph Media Group and draw attention to my other media interests in the register. This Committee stage follows the very useful debate that we had on this admirable Bill at Second Reading. As I said then, this is a very important Bill and I support it wholeheartedly. During that debate, though, the noble Lord, Lord Beith, and the noble and learned Lord, Lord Falconer, raised the question of the protection of journalistic sources and of legally privileged material. I have brought forward this probing amendment for two reasons. First, it seemed to be the mood of the House that it wanted to discuss this matter further, and indeed in his concluding remarks the noble Lord, Lord Ramsbotham, said that it might well be useful to do so in Committee. Secondly, it is important that when we legislate on issues that impact on fundamental freedoms—and this is a question of freedom of expression—we do so with our eyes open, having looked at all the possibilities, particularly if significant new powers are being granted to an organisation such as the CCRC.
I am very pleased that the noble Lord, Lord Lester of Herne Hill, has added his name to the amendment. He has asked me to say that he regrets that he cannot be here as the timing does not work out today. At Second Reading my noble friend Lord Faulks set out the reasons why he believed the Bill already had adequate safeguards. I know he is sorry he cannot be here today either, but I am delighted that my noble friend Lord Gardiner is in his place to provide further reassuring balm on this matter. However, I have a problem with reassurances, no matter how strong they may be. I hope noble Lords will forgive me if I sound slightly cynical, but the media have from time to time been here before. Bills come forward, objections relating to sources and so forth are raised, the press and broadcasters are told that everything is okay and at the end of the day the ECHR will be the ultimate protection, but then problems begin to arise. The most obvious example is the Regulation of Investigatory Powers Act; when it was going through these Houses back in 1999-2000, the newspapers made it very clear that they thought it would cause a problem with access to journalistic sources. We were told that there was no way that that could happen, but now we know that dozens of police forces have successfully obtained material from local and national journalists. That proves the point that if broad powers are introduced, they can be abused. The same thing happened over the Protection from Harassment Act 1997, so there is history here. Reassurances are fine, but perhaps sometimes we need more than that.
My amendment seeks to put safeguards in the Bill for journalistic and other legally privileged material. It is important for me to underline that this amendment would not restrict the reach of the Bill, nor inhibit the commission in how it would pursue an order. The commission would still apply for an order relating to journalistic material and other material in the same way as it would make any other application. It is the process of the court, and the criteria that must be satisfied, that would provide the additional protection, ensuring that Article 10 rights of freedom of expression, including the protection of sources, were properly taken into account.
Under this amendment, when the court received an application relating to journalistic material or legally privileged material, it would be required to consider whether the material requested would be of substantial value to the investigation in question, and whether it would be possible to get the information by other means. It would also consider whether the disclosure of the material would be in the public interest, not just in the context of how it would benefit the investigation, because in many ways that is self-evident, but in the circumstances by which the material was held by the person in possession of it, including the public interest in the protection of confidential sources. To ensure that the court considered these matters fully and was in possession of all the facts, the media would have prior notice of an application and the right to be heard at that application so that, should they wish, they could make representations to the court.
I underline that this protection would not make journalism exempt from the reach of the commission. It would not even provide the same level of protection that journalism enjoys in some other areas of the law. Under the Police and Criminal Evidence Act 1984, for instance, the restrictions on material that would reveal a journalist’s source are more onerous than those protecting journalistic material more generally.
The amendment certainly is not perfect and, if my noble friend were so inclined, I would of course be very pleased to hear from her about how PACE procedures for both journalistic and excluded material could be more simply and effectively incorporated into this excellent Bill. Could she also clarify whether the Government consider that the Crown Court will operate as an effective safeguard for journalistic and legally privileged material in the manner envisaged by the amendment? Will the Government work on the assumption that the court will be likely to have regard to the criteria outlined in the amendment? What other criteria, if any, does she anticipate that the Crown Court should or would apply? I beg to move.
Lord Beith (LD)
I indicated at Second Reading that I strongly support this Bill, which implements a proposal made by the Justice Committee when I chaired it in the House of Commons. However, I have some sympathy with the points that the noble Lord, Lord Black, has raised, and I indicated that at Second Reading. It is no part of the intention of the Bill to pose a general threat to journalistic sources or indeed to professional or legal privilege. I therefore look forward, as does the noble Lord, to what he described as the “reassuring balm” that might come from the Minister, but perhaps a little more as well: some clarification of the extent to which existing law and practice, when combined with this legislation, should not pose the kind of threats that he is worried about.
I would not be entirely happy with the wording of the noble Lord’s amendment anyway. Proposed new subsection (8)(d), which would become new Section 18A(8)(d), says:
“taking into account the circumstances, there is no significant reason why the information should not be disclosed”.
Of course a significant reason might be that the disclosure of the information in this case might lead future potential sources not to have confidence in doing so. There might be the overriding reason in the commission’s mind that someone who was serving a long-term imprisonment might have their innocence proven if the necessary information was obtained.
Lord Black of Brentwood
My Lords, this has been a very useful and important short debate on an issue of great sensitivity. I am grateful to all noble Lords who have taken part, and am particularly grateful to the noble Lord, Lord Ramsbotham, who was able to give us the view from the CCRC. Its work, as we know, is extremely important, and we all want to do what we can to ensure that that continues. We must place great weight on the view that he gave us. I also thank my noble friend the Minister and welcome the Government’s commitment, which she restated, to the protection of sources. I particularly welcome the assurance that there will be prior notice to the holder of the material at an inter partes hearing, should the case arise. In an ideal world, I would obviously prefer that this was in primary legislation rather than in Criminal Procedure Rules—rules can be changed, whereas legislation cannot be without further scrutiny. None the less, this is a very important safeguard.
The Minister referred to the PACE schedule provisions and suggested that the amendment goes a little further than that. It was my intention to reflect the sentiment of those provisions rather than replicate them in an amendment. I would obviously be delighted if the Minister was to be persuaded to incorporate PACE provisions in the Bill or, more likely, recommend that their equivalent be enshrined in the Criminal Procedure Rules to achieve the balance that she quite rightly mentioned between freedom of speech and correcting miscarriages of justice. I am sure that media organisations would be very happy to discuss that in more detail with the Government or the Criminal Procedure Rules Committee. If she would find that helpful, perhaps the Minister could drop me a note about it.
On that positive and collaborative note, and with thanks for what was genuinely reassuring balm, I beg leave to withdraw the amendment.