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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