Clause 1: Extension of powers to obtain documents and other material
1: Clause 1, page 1, line 20, at end insert—
“(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.”
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.
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.
These are delicate judgments but a Crown Court judge is perfectly capable of making them, having regard to things such as the European Convention on Human Rights as well as other parts of the law, which have long protected both professional privilege and journalistic sources. In addition, I would not want the delicate and fragile processes of getting Private Members’ Bills through both Houses of Parliament to impede the passing of this piece of legislation. I remind your Lordships of the number of times when lack of a suitable legislative vehicle has been advanced as the reason why this widely accepted improvement in the commission’s ability to do its job should not be brought into law. We must not pass up this opportunity. Therefore, I hope that the Minister in her reply will give sufficient assurance to all of us that we should not need to pass this amendment.
I am most grateful to the noble Lord, Lord Black, for sharing the content of his amendment with me in advance, which allowed me to obtain a response from the CCRC. I am also glad that those responsible for drawing up the rules, to which I will refer in due course, will have access to our discussions in Hansard. I am also grateful to the Minister for meeting with me and discussing what the Government’s response might be.
The CCRC recognises that the amendment is drafted in similar terms to the police powers to access journalistic material contained in Schedule 1 to the PACE Act 1984. However, it points out that it operates in a very different context from the police:
“The measures in this Bill will only apply in criminal cases in which there has already been a trial, a conviction and (in most cases) an appeal. Therefore, from the outset of its investigation, the CCRC will already know a great deal more about a case in question than a detective in the early stages of an inquiry.
The CCRC is an independent public body, whose whole raison d’être is to ensure that the rights of an individual defendant/appellant are protected vis a vis the State. It is not part of the executive, is independent of the police, the prosecution and government, and exists, not to detect crime but to check for potential miscarriages of justice”.
At Second Reading I mentioned that the powers that the Bill seeks for the CCRC have only once been contested since the Scottish CCRC was established with those powers in Scotland in 1995. I will quote from the judgment given in that one case, which said that,
“the petitioners have a statutory obligation to carry out a full, independent and impartial investigation into … miscarriages of justice and the legislation under which they act was clearly designed to give the widest powers to perform that duty”.
On the amendment itself, Clause 1 of the Bill specifies that a person will be obliged to provide the CCRC with private documents or other material only if ordered to do so by a Crown Court judge, who is best placed to consider and weigh up factors such as the potential relevance of the material, confidentiality issues and the public interest in uncovering miscarriages of justice. The CCRC considers that the most appropriate way of resolving issues of concern in an inter partes oral hearing before a Crown Court judge is by Criminal Procedure Rules rather than in the Bill. The CCRC is represented on the Criminal Procedure Rule Committee and tells me that currently the committee stands ready to put appropriate rules in place as soon as the Bill becomes law. I remind the House that the CCRC always seeks voluntary disclosure first, which process could also be said to be inter partes.
As regards the understandable concern about the protection of the identity of informants expressed by the noble Lord, Lord Black, the CCRC’s already existing processes have been designed to protect such identities, which it is routinely required to do in highly sensitive cases involving police informants. Furthermore, it has many years’ experience of reviewing and storing highly sensitive material, obtained through its existing statutory powers, up to and including “top secret”. Those procedures are regarded as satisfactory by MI5, MI6 and GCHQ, and no accusation of abuse of its powers has ever been made against the CCRC.
In sum, the CCRC believes that the amendment is unnecessary because the points it contains are covered already by existing safeguards or could be covered by the rules committee. Therefore, not least to help the CCRC in its important task of investigating possible miscarriages of justice, I hope that the noble Lord will feel able to withdraw his amendment.
My Lords, obviously, this amendment raises matters of considerable interest. I should have thought that proposed new subsection (8)(a) to (c) would inevitably be either part of the new rules or considered already part of the existing system. I find difficulty with proposed new paragraph (d), because it seems that if proposed new paragraphs (a) to (c) are satisfied, that should be sufficient to allow the matter to proceed. It is also very important, as the noble Lord, Lord Ramsbotham, said, to recall that, as far as I know, no complaints about the procedures of the CCRC have been made since it was set up, when I had some responsibility in this area. So I think we can safely leave these issues to be determined in terms of the criminal rules if necessary, while realising that we appreciate the importance of these issues subject to the omission of proposed new paragraph (d) in the amendment.
My Lords, I begin by echoing the remarks of my noble and learned friend Lord Falconer in congratulating the noble Lord on bringing the Bill forward. I also congratulate the noble Lord, Lord Beith, and the Justice Select Committee on their work, which has informed this process.
At Second Reading, the noble Lord, Lord Black, touched on the concerns which are now reflected in the amendment. I do not often support policies or philosophies advanced by those closely associated with the Telegraph but on this occasion I have every sympathy with them. My initial reaction was to believe that it would be sensible to pass the amendment. However, having heard from the noble Lords who have addressed the Committee today, I am persuaded that it is unnecessary to write the rules for the commission when it is clear from its track record that it is in any event very likely to incorporate them. I am sure that the commission will look carefully at the tenor of today’s debate and the Second Reading debate before finalising its ultimate response, assuming that the Bill secures its enactment with the approval of the House of Commons.
I certainly bear in mind the time constraints and perhaps the undesirability of adding material which may in any way impede the progress of the Bill when it is considered in the Commons. In the circumstances, therefore, I certainly join others in respectfully advising the noble Lord not to press his amendment. However, I hope that the Minister will clearly put on the record support for what lies behind the amendment, as I think that will assist in securing the positive response from the commission that all of us wish to see.
I thank my noble friend Lord Black for his probing amendment and all other noble Lords for their contributions to this short debate.
The amendment would stipulate that, where material is protected by legal professional privilege or if it is journalistic material or might reveal journalistic sources, there should be an inter partes hearing. Further, it says that, where such material is involved, the court must be satisfied that the material is of “substantial value” to the investigation; that it is not possible for the commission to obtain the material by other means; that it is in the public interest for the material to be disclosed; and that there is no significant reason why it should not be disclosed. Those are admirable principles with which we would not argue.
Of course, I understand the concern that the balance between freedom of speech and miscarriages of justice is a delicate one which we need to get right. However, we believe that the amendment is unnecessary and that in fact some of the terms used may go too far and would prevent the commission fully investigating cases where, we must remember, there may have been a miscarriage of justice. I was about to say a “significant or serious” miscarriage of justice, but of course all miscarriages of justice are significant and serious for those concerned.
Turning to the first point, we absolutely agree that inter partes hearings will be needed. However, it is not necessary to say so in the Bill as we intend that this will be dealt with in Criminal Procedure Rules, as the noble Lord, Lord Ramsbotham, said. I understand that the drafting of those is well advanced.
In addition, it is important to remember that the Crown Court, in deciding whether to make an order for disclosure, must act compatibly with the right to a fair trial under Article 6 of the ECHR. This means that, where a civil right or obligation is being determined, the court must ensure that the respondent has practical and effective access to the court, which includes notice of the proceedings and a reasonable opportunity to present their case. In other words, even without any Criminal Procedure Rules or anything on the face of the Bill, the Crown Court will need to ensure that there is an inter partes hearing before making an order.
There are four strands to proposed new subsection (8) in the amendment. The first requires that the material is of “substantial value” to the investigation. Of course, we may not know this until the material has been disclosed, so this could substantially hinder the court and defeat the objective of the Bill. The Bill currently stipulates that for all and any material:
“The court may make an order only if it thinks that the document or other material may assist the Commission in the exercise of any of their functions”.
That prevents the commission trying to make any fishing expeditions if it is inclined to do so. It is a clearer and more objective requirement and we believe that it is the right test.
I am further persuaded that the test proposed in the amendment is too high when I look at the wording in Schedule 1 to the Police and Criminal Evidence Act, which deals with decisions by the court to order material to be disclosed to a constable. The PACE test requires a judge to be satisfied that,
“there are reasonable grounds for believing … that the material is likely to be of substantial value … to the investigation”.
If we need any safeguard at all, I think that it should follow that model. However, as I said before, we do not believe that anything further needs to be added to the Bill.
The second requirement is that it should not be possible for the commission to obtain the material by other means. If the material were available in any other way, the commission would not be likely to pursue a court order at all, and if the material were otherwise available, the court should not make an order because the order would be unnecessary. We expect applications to the court to be rare. As the noble Lord, Lord Ramsbotham, outlined, that has been the case in Scotland, and we have no reason to believe that it will be different in England, Wales and Northern Ireland.
The third requirement is that it should be in the public interest for the material to be disclosed. There must be a substantial interest in the disclosure of any documents which may be needed in connection with decisions about a potential miscarriage of justice. Very compelling arguments would need to be made to justify material remaining confidential. Where there are such arguments, the respondent has the opportunity to put them before the court at an inter partes hearing, as I have said.
The final point is that there should be “no significant reason” why material should not be disclosed. This does not take into account the balance that the court must always make. There may be significant reasons why the material should remain confidential, but they may be outweighed by the more significant reasons in favour of disclosure. The amendment would prevent the court making that judgment. It would not be able to make an order no matter how pressing the case for disclosure, and we do not believe that that can be right.
If my noble friend is concerned that the safeguards I have mentioned so far are not enough, I can highlight a couple more. First, there is a restriction on information given to the commission being further disclosed. Section 23 of the Criminal Appeal Act 1995 prevents members or ex-members of the commission making unauthorised disclosure of information obtained by the commission in the exercise of its functions. Those disclosing information may ask that it should not be further disclosed without their consent. That provides a safeguard in the case of, for example, commercially sensitive information.
Clause 1(3) of the Bill clarifies that the restrictions on onward transmission will apply to documents obtained under the commission’s new powers in the same way that they apply to documents the commission may have obtained under its present powers. We should remember that the commission is used to dealing with confidential, sensitive and, indeed, classified material. It is in the nature of its work that its investigations uncover such information, and the necessary safeguards are already there.
The Government are committed to ensuring protection for journalists’ sources, so much so that we mentioned it in our manifesto. The final piece of the puzzle is the Human Rights Act, which provides specific recognition of the importance of freedom of expression. Where journalistic material is involved, the courts must have regard to freedom of expression, and that includes the protection of journalists’ sources. The court would make an order that interferes with the ECHR only if it were satisfied that the order was both necessary and proportionate in pursuit of a legitimate aim. Article 8 of the ECHR would be engaged where the court is considering a requirement that legally privileged material be disclosed. Article 10 would be engaged where the court is considering a requirement to reveal journalistic sources. As I said, there would need to be a strong case for withholding any information where the correction of miscarriages of justice is at stake. However, the court will need to consider these issues.
I hope my noble friend accepts that we have suitable safeguards in place and, on the basis of my response, I ask him to withdraw his amendment.
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.
Amendment 1 withdrawn.
Clause 1 agreed.
Clause 2 agreed.
Bill reported without amendment.