Serious Crime Bill [Lords]

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Clause 64

Offence for certain further disclosures of information
10.15 am
Mr. Hogg: I beg to move amendment No. 155, in clause 64, page 34, line 33, leave out subparagraph (ii).
First, I seek information, Mr. Bercow. At what time do you normally adjourn the Committee on a Thursday morning?
The Chairman: At 10.25 am.
Mr. Hogg: It would be convenient if we could finish this matter, so I shall be as brief as possible.
Hon. Members may ask the purpose of the amendment, but it is perhaps more important than they have spotted because it goes to the freedom of the press. I hasten to say that in my previous incarnation as a Minister I have suffered from the press, and I am no greater liker of them even though my wife was a journalist and I worked with the press for many years as a libel lawyer. Notwithstanding the fact that I do not like the press, I recognise that a free press is an essential ingredient in a democratic society and that one has to put up with an awful lot of nonsense in the recognition of that principle. Part of the safeguard that one has from the operation of a free press is the number of leaks that they receive from within Government organisations and the publication of those leaks. Those who have been or who are in government frequently dislike leaks. However, leaks sometimes serve a very important purpose.
Incidentally, let me say in parenthesis that when Departments start leaking, it normally points to low morale and, very often, poor ministerial leadership, which is something that the Home Office under the former Home Secretary might reflect upon. We will not go into that because I can see that you are getting to your feet, Mr. Bercow. I have a curious habit of irritating you; I am so sorry.
We have to recognise that leaks are important to safeguard liberty. It is against that background that one must look at clause 64(1)(b)(ii) because it makes it wholly plain that in the situation in which a journalist is in receipt of a leak from within the designated public authority and then publishes that leak, that journalist will be committing an offence. The punishments that may be visited on that journalist are not slight. Clause 65(1)(b) states that the journalist may on conviction be subject
“to imprisonment for a term not exceeding two years or to a fine or to both.”
Incidentally, the fine is unlimited. Therefore, in principle, the journalist can be exposed to an unlimited fine and sentenced to up to two years in prison.
The Minister will say that there is safeguard in clause 65(2), which states that the prosecution can only take place with the authority of the named individual, such as the Director of Revenue and Customs Prosecutions or the Director of Public Prosecutions. I personally do not find that a satisfactory safeguard, not least of all because both the DPP and the Director of Revenue and Customs Prosecutions in their collective position might well have an interest.
That then takes one to what could be the nature of the leak. Anybody who knows anything about Government can see that any type of leak is possible, but they certainly include the following: the fact that the Departments are grossly incompetent; that the systems are wholly haywire; that individuals are corrupt; and that policies are wholly mistaken or not working.
Let us look at the Child Support Agency. Its incompetence and failures might well feature in a leak. Is it really to be said that the press should not be able to report such matters from a leak? Let us stand back and say, “We have a problem here because of the confidential nature of the information.” There is a public interest here in not rendering criminal the journalist who publishes the leaked information, which may well be in the wider public interest. Where then is the protection?
I have already said that the prosecutions have to be made with the authority of the named individuals. The only defence that is provided for is in subsection(4). It states:
“It is a defence for a person charged with an offence under this section to prove that the person reasonably believed—
(a) that the disclosure was lawful; or
(b) that the information had already and lawfully been made available to the public.”
The latter does not arise in the case of leaks because leaks, by definition—or at least usually—are of unpublished material. It is very difficult to see how a leak can be described as lawful when in fact the process of leaking is said to be an offence. Therefore, the truth is, as I understand it, that there is no defence available to the journalist who publishes a leak. Is that really what the Committee wants to do? I rather question that. It is in that spirit that I have moved my amendment. I think that it is a matter of some importance.
James Brokenshire: I wish to speak briefly in support of the amendment. My right hon. and learned Friend raises an important issue on which I hope the Minister will respond and give some clarification. In particular, he highlighted the issue of whether the disclosure was lawful. I hope that the Minister might be able to give some indication of whether, for example, provisions relating to whistleblowing might be such that they make the disclosure of such information lawful pursuant to provisions in other statutes, and to give us some other background.
Clause 64 talks about protected information. In subsection (5), we discover that the definition of protected information is drawn somewhat widely and can be extended even further inasmuch as in subsection (5)(b) it includes
“any specified information disclosed by a specified public authority.”
That is further defined as meaning
“information specified or described in an order made by the Secretary of State”.
My right hon. and learned Friend makes a valid point about what that is intended to cover. If the Secretary of State can then expand it by order, we need to consider the provision carefully.
Mr. Coaker: I am afraid that I will have to resist amendment No. 155. Clause 64 introduces an offence for certain further disclosures of protected information, such as taxpayer information. Clause 64(1)(b)(ii) ensures that if a person receives information from a public authority, directly or indirectly, that information remains protected by the offence of wrongful disclosure. As the right hon. and learned Member for Sleaford and North Hykeham pointed out, there is a defence in clause 64(4) that somebody believed that it was lawful to disclose the information.
In the end, the point that I hope will reassure the right hon. and learned Gentleman is that it will be a matter for the prosecuting authorities to decide whether it would be in the public interest to prosecute somebody who has disclosed that information. Otherwise, we are saying that people can disclose information on the basis that they believe that it is good journalism and that in their opinion sensitive personal information could be disclosed and put in the public arena in an inappropriate way.
Amendment No. 155 would remove an essential part of the protection that the clause provides for information being shared. It would mean that if a person made an unlawful disclosure of the information they would not be caught by the criminal offence because they were not the original recipient of the information but instead received it indirectly. That would create a loophole in the Bill that I do not think that the Committee would wish to see, so I ask the right hon. and learned Gentleman to withdraw the amendment.
Mr. Hogg: I am not in the least bit satisfied by the reply. It is plain to me that the provision does catch leaking. The only defence for anything offered by the Minister to the potential leaker is that a person who might have an interest in preventing the leak will be the person responsible for deciding whether or not there should be a prosecution. I have never heard of a shallower defence than that. The point that my hon. Friend the Member for Hornchurch made about enlarging the class of information that could be caught is extremely sound. We shall not divide the Committee on the amendment, mainly because there are only two of us—three, if the Liberal Democrat voted with us, as I hope he would—to vote for it. I hope that the House will revisit the matter on Report and so I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 64 ordered to stand part of the Bill

Clause 65

Penalty and prosecution for offence under section 64
James Brokenshire: I beg to move amendment No. 178, in clause 65, page 36, line 6, leave out ‘two’ and insert ‘four’.
Clause 65 deals with the penalties for breach of clause 64. In that context my comments about the amendment tabled by my hon. Friend the Member for Arundel and South Downs—
It being twenty-five minutes past Ten o’clock, The Chairman adjourned the Committee without question put, pursuant to the Standing Order.
Adjourned till this day at Two o’clock.
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