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Lord Ackner: My Lords, before my noble and learned friend sits down, can he inform the House, in the light of the advice from his advisory committee to which I referred, what action he is taking or proposes to take in order to monitor the implementation of the conditional fee system to ensure that the consumer is properly and fully protected from potential exploitation?
The Lord Chancellor: My Lords, as my noble and learned friend mentioned, I have arranged for a research project to be carried out under the authority of my advisory committee. In the light of what transpires there I shall consider what else may be required.
As I said, and as my noble and learned friend mentioned, that project was limited in scope. I shall require to take some time before a decision is made as to its effect and whether it should be extended. My
noble and learned friend said that there would be no reason in logic for not extending it. That is a question to be determined in the light of experience of its operation.
Baroness Gardner of Parkes: My Lords, before my noble and learned friend sits down, can he comment on the rights or otherwise of individuals to refuse to give evidence to inquiries and whether doctors could be subpoenaed by the National Health Service?
The Lord Chancellor: My Lords, except in so far as there is statutory authority--and in some types of inquiry there is authority for the issue of subpoenas--there would not normally be any right to issue a subpoena nor any obligation to comply with one. There are sometimes contractual conditions which require people to give evidence or information. I have no doubt that at least some of the inquiries to which my noble friend referred will have characteristics of that kind which will apply in respect of at least some of the officers involved.
In most cases it will depend entirely on the wish of the individual and what the individual thinks right. I should have thought that most of those who hold responsible positions in hospitals where something has gone wrong would wish to co-operate as fully as possible with those who are inquiring into the matter.
5.33 p.m.
Lord Cocks of Hartcliffe: My Lords, I should like to thank all colleagues who have taken part in the debate. In view of the concentration on medical matters, I should perhaps have declared an interest as a lifelong hypochondriac. I hope that those colleagues who concentrated on the medical aspect will bear in mind the problems of recruitment into the other callings that I mentioned.
With regard to the noble and learned Lord, Lord Ackner, probably the simplest thing would be for me to plead guilty as charged and throw myself on his mercy. I shall certainly try to obtain the book recommended by the noble Lord, Lord Lester. In the meantime, I beg leave to withdraw my Motion.
Motion for Papers, by leave, withdrawn.
Cheque-book Journalism
5.34 p.m.
Lord Dixon-Smith rose to call attention to the case for statutory limitation on the use of cheque-book journalism; and to move for Papers.
The noble Lord said: My Lords, in moving the Motion standing in my name on the Order Paper I look forward to what I hope will be an interesting debate on this matter. In particular, I look forward to the contribution from the noble Lord, Lord Wakeham, in what will be his first speech to the House since he stood down as its Leader. I look forward to the response to the debate by the noble and learned Lord the Lord Chancellor. Both have kindly assisted me in my
preparations. In addition, I particularly look forward to the contribution from the noble Viscount, Lord Exmouth, in what will be his maiden speech.I was hesitant about putting this Motion down for debate, but the more I thought about the trial of Rosemary West, recently completed in Winchester, where witness after witness who appeared in the trial was under contract to sell his or her story to this or that newspaper, the more convinced I became that this is a proper subject for us to discuss.
I recognise that we are walking on eggs this afternoon, not because of what the press might say about the debate--the press will say what it must say and do what it must do--and so should we. Rather, we must tread with caution and consider carefully, because it is the press itself that has recorded what is going on and informed us of it. Any action which might inhibit responsible journalism must be avoided.
I do not wish to dwell for too long on the trial of Rosemary West, but as that trial developed it seemed that it was more and more possible for defence counsel to question the veracity of witnesses because they were under contract to the press. Indeed, one witness, Janet Leach, who at first denied that she was under contract, damaged her integrity as a witness when it was shown that she had such a contractual relationship.
It is inevitable that when one researches a subject such as this one finds oneself tilling fertile soil that has already been well cultivated. In December 1974 a committee appointed to consider contempt of court under the chairmanship of Lord Justice Phillimore reported to the House. At paragraph 55 the report states:
- "Press interviews caused us some anxiety ... The real danger of such interviews is that witnesses whose evidence is vital to the matter under investigation are questioned without any of the safeguards which obtain in our Courts of Law or Tribunals of Enquiry ... Witnesses might also be tempted to give a version of the facts which they thought most newsworthy--particularly if a fee were being paid for the interview. When such a witness came to give evidence before the Tribunal they would either have to stick by what they had said, however inaccurate it might be--or reveal the true facts. In the latter event the weight of their evidence might be considerably shaken by the discrepancy between what they are telling the Tribunal and what they said previously".
At paragraph 56 the report considers the specific issue of payment of witnesses. It states:
- "One particular situation with witnesses deserves special mention. It arose in connection with the Moors murder case in 1966 where two witnesses were offered sums of money by a newspaper for their stories (for publication after the Trial); but the amount to be paid was expressly made dependent upon whether or not a conviction was secured. A similar question arises with rewards (perhaps less common than they used to be) which are publicly offered for information leading to a conviction. If the information comes, as in many cases it will, from a potential witness in the case, he may be regarded as having an interest in the outcome and therefore might be under some pressure or temptation to shape his evidence in order to achieve the desired result".
At paragraph 79, the report returns to this issue:
- "Widespread and, in our view, justifiable concern was expressed at what happened in the Moors Murder case in 1966".
Further down the report states:
- "We have no evidence as to the extent to which this practice has continued since 1966".
We now know that the practice certainly continues and has occurred in regard to other notorious cases too. The report continues:
- "However, we regard the potential dangers as sufficiently grave to warrant further inquiry as to its prevalence and if found necessary legislation to restrain or wholly prohibit this practice. We recommend that such an inquiry be carried out".
That was the view expressed in 1974. I do not apologise for quoting the report extensively. As your Lordships would expect of a report to this House, it makes the point with greater elegance and precision of language than I might have been able to achieve.
Time passes, and the activities of the press have from time to time given rise to further concern. Today we have the Press Complaints Commission to monitor a code of practice that seeks to restrain unacceptable press behaviour. The code of practice was framed by the newspaper and periodical industry and subsequently ratified by the commission in 1993. The preamble states:
- "Editors are responsible for the actions of journalists employed by their publications. They should satisfy themselves as far as possible that material accepted from non-staff members was obtained in accordance with this code. While recognising that this involves a substantial element of self-restraint by editors and journalists, it is designed to be acceptable in the context of a system of self-regulation. The code applies in the spirit as well as the letter".
Paragraph 9 of the code states:
- "Payments or offers of payment for stories, pictures or information should not be made directly or through agents to witnesses in current or criminal proceedings or to people engaged in crime or to their associates--which includes family, friends, neighbours and colleagues, except where the material concerned ought to be published in the public interest and the payment is necessary for that to be done".
Paragraph 18 of the code gives three definitions of public interest, of which I mention only one:
- "Detecting or exposing a crime or serious misdemeanour".
I may be misinformed, but I am not aware that the original revelations that led to the exposure of the Wests' crimes was the result of press investigation; rather, it came as a result of a chance conversation by a local policeman and his persistence in following the matter up. As subsequent investigation revealed the enormity of what had been done behind the innocent facade of an ordinary house and in other places, it was both proper and necessary for the press to report the progress of the investigation as it was brought towards a successful conclusion.
I fully understand the necessity for detailed and complete reporting of the trial of Mrs. West, distasteful though that was. All of this is clearly in the public interest. But I am a relatively simple man and I do not understand how this proper function necessitated what I can only describe as an auction to purchase the stories of witnesses. I would prefer to see this practice banned, although I see all too well the problems of drafting such a regulation. At the very least, such arrangements with witnesses should be required to be declared to the courts before any proceedings commence.
That thought provokes a parallel point. Following the death of Mr. West and the conviction of Mrs. West, the Official Solicitor became burdened with administering
the affairs of the family in the interests of all the family. Indeed, it is his duty to maximise any value obtainable. It transpires that the greatest asset left by the West parents turns out to be their life story, and there are reports of great sums being offered for the copyright. I have the greatest sympathy with the predicament of the Wests' children, but I must confess that it leaves a very bad taste in my mouth that the Official Solicitor should have to bear such a burden--and that such a story could apparently have a value which matches a divided main lottery prize. What has our sense of values come to?To return to the main point, I do not see this as an issue that affects in any way the freedom of the press to report events properly. Nor do I wish to place any restraint on investigative journalism, which from time to time serves society as a whole very well. But there is a case to answer. Society has found it necessary to initiate statutory regulation in so many fields in recent time where it was thought impossible in earlier days. Is regulation of one of the commercial practices of the press so impossible to consider? When actions taken to further the commercial interest of a specific sector of society can put at risk an already hazardous judicial process it is time to call a halt. I beg to move for Papers.
5.47 p.m.
Lord Dubs: My Lords, I congratulate the noble Lord on giving us the opportunity to debate a subject of significant public concern. I welcome the opportunity to contribute to that debate. I regret that the noble Lord, Lord Wakeham, will speak after me. I should have found it easier and preferable to have heard his comments first; but, alas, that is the order in which I have been asked to make a contribution.
Cheque-book journalism has been a long-standing cause of concern. Although it has had a new focus of attention through the West trial, it has been under scrutiny and criticism for many years. I could add many examples to those referred to by the noble Lord, going back to the Christine Keeler case. There are many others, all of which have given rise to anxiety lest the practice of cheque-book journalism should undermine the cause of justice in a series of cases.
Eleven years ago I had the opportunity in the other place to introduce a Private Member's Bill dealing with the subject. It was quite embarrassing to read what I said. I shall certainly not quote myself here. It was a matter of concern then. I believe that it was the Sutcliffe case which gave rise to widespread feelings on the issue.
Perhaps I may say this at the outset. I believe that a free press is absolutely vital in our society. We all have to accept many practices on the part of the press which individually we deplore because dealing with such instances might undermine a free press, and that would be the worst outcome of all. So we have to live with the press; and I am as unhappy as any other Member of this House at what the press sometimes gets up to. However, a free press is an important fundamental principle. The problem with cheque-book journalism is that it puts the press in a dilemma between commercial and journalistic interests.
Newspapers quite often bid for stories from individuals in the interests of their circulation. They believe that those stories will add to their circulation rather than that they will necessarily add a great deal to their journalistic coverage. Therefore, when we look at the freedom of the press we must also consider the circulation wars going on intensely at the present time and understand--and regret--the reasons why cheque-book journalism plays such a part in the commercial motives of keeping a newspaper's circulation up.
The noble Lord referred to the problem of payments to witnesses in court actions. I wish to give a few examples of other instances where cheque-book journalism occurs, although the most serious are those to do with payments to witnesses. It has been indicated that sometimes individual witnesses are given a bonus or offered money only if the outcome of a court hearing is that a defendant is found guilty. That is highly undesirable and it seems to me to breach the principle of a fair trial. It has been suggested that one way round the problem would be to have witnesses declare in court that they have been offered sums of money for their stories after the case has been concluded. But I must say that I am not happy about that. It might have some benefits, but I am not happy that that is the way to deal with the difficulty.
Then there is the situation where payments are offered to criminals or people closely associated with criminal activity for their stories. The difficulty there is that it would seem to me to be almost a life-long imposition. It is highly undesirable that anyone should benefit in that way from the results of criminal activity. On the other hand, are we able to say, when someone has spent 10 or 15 years in gaol, that they should still be barred from giving their story to the papers? I find that difficult. I should be unhappy if at any point a criminal were to benefit, and yet I find it equally difficult to suggest that criminals should never be allowed the freedom to sell their story when they have served their sentence, however long it may be.
There are also instances where individuals are paid money because a newspaper wishes to have a monopoly in publishing a story. That seems understandable as a commercial motive but clearly against the interests of a free press, where all papers can publish stories. However, I can see why it may happen and it may be difficult to do much about it.
Sometimes individuals who are the victims of disasters or are closely associated with disasters may be offered money to tell their stories. There I believe that the agony is for the individual to balance the offer of what may be a large sum of money against the wish to retain his privacy and not reveal the agonies he has gone through. I believe that relatives of victims of the Hillsborough tragedy, for example, were offered inducements to tell their stories after the event. That must be for the individual to decide, but it is not always a desirable activity to wave large sums of money in front of poor people to make them reveal things about their past which probably they would not wish to reveal.
Then there are instances where newspapers pay individuals to reveal sexual scandals in which they themselves may have been implicated in order that a person in public life is exposed in the headlines for whatever that person has been getting up to. There have been so many instances of that recently that I shall not bore the House by giving examples.
There is one further aspect of cheque-book journalism which bothers me as regards the individuals who are offered money. It is close to the example that I gave earlier of individuals who have been the victims of a disaster but it is not identical. People may be offered money at a time when they are under emotional stress and when they have to make a quick decision, often without legal or other advice as to how they should conduct themselves. The result may be that they sell their story far too cheaply, simply because they do not realise its value and the benefit to them of retaining the copyright rather than letting the newspaper have it.
Those are all examples, some of which I fear we can do little about. However, they all affect the practice of journalism and offering money to individuals. I welcome the fact that the Government are considering taking action following the West trial. I have read articles suggesting that the noble and learned Lord the Lord Chancellor, the Attorney-General and the Home Secretary are all involved in discussions on how to proceed. I notice that the Association of Chief Police Officers also issued a statement last month. Mr. Sharples, the Chief Constable of Merseyside and president of the association said:
- "This type of activity has the potential at best to cast doubt on the credibility of witnesses and at worst to pervert the course of justice".
That is a fairly clear statement from the police.
I have looked with interest at the various codes that exist. The National Union of Journalists has a code of conduct which covers cheque-book journalism and so has the Press Complaints Commission. One has already been read out, but both codes refer to consideration of the public interest. I very much support a public interest defence in many instances. On the other hand, it seems to me to have become a bit of an excuse for some newspapers, when there could not be a public interest in some of the witnesses' stories; for example, in the West case, where much of it came out in open court anyway. So I am not totally clear how public interest comes into it in instances where we are dealing with witnesses in current or criminal proceedings or dealing with people who have been engaged in crime or their associates. It is difficult to see a public interest defence. There may be one on occasions, but not often.
I welcome the fact that the Daily Mail came out clearly at the end of November on the subject. I quote from a leading article of 24th November 1995:
- "But as the West trial shows, the rules can be bent. What is needed is firm, clear guidance from the Press Complaints Commission and, if all else fails, our legislators too".
I have to confess that we are in difficulty. When I spoke about this in the other place 11 years ago I was fairly clear about the way ahead, but the passage of years has made me less certain that there are clear ways
ahead. We could make it an offence possibly under contempt of court legislation or other legislation so that no one, no witness should be offered any payment connected with any court proceedings. That could be clear and absolute and I do not see why we should not move that way. Although it is highly desirable that criminals should not benefit from their crimes through being given money by newspapers for telling their stories, I find it difficult to see how we could give force to that, except through codes enforced by the Press Complaints Commission.There is one other suggestion which I wish to make. To my mind it would be desirable and helpful if newspapers had to indicate that a particular story had been the subject of cheque-book journalism. They need not necessarily give the amount, although that would be interesting and illuminating. Perhaps newspapers should be compelled, through codes or through the Press Complaints Commission code, to indicate that a particular story had been the subject of cheque-book journalism--it could be described more elegantly--rather than that it was by a journalist or by a regular contributor. That would enable us to judge the strength and force of any story or contribution.
I believe that there is a way ahead, but it is limited. I am bound to say that there are many examples of cheque-book journalism where I fear we shall do very little except rely on the self-restraint of the press.
5.59 p.m.
Lord Wakeham: My Lords, first, I wish to congratulate my noble friend Lord Dixon-Smith on bringing forward this most important Motion for us to discuss this evening. The whole House will share with the noble Viscount, Lord Exmouth, the experience of making a maiden speech. I wish him well and would like to hear him many more times in the future.
I feel slightly strange. It is the first time that I have spoken in either House, other than from the Government Front Bench, since the day when my noble friend Lady Thatcher formed her first Administration. It seems an absolute lifetime ago.
This debate raises many important and serious issues with which I, as the chairman of the Press Complaints Commission, have a significant concern. The issues are complicated, in which many bodies and institutions as well as the press, and those who seek to regulate it, have a legitimate interest.
My task is to seek to make press self-regulation more effective. However, it may not be right to expect a self-regulatory body to seek to enforce procedures designed to protect the legal system. Some may well conclude that these are matters for the courts, the Attorney-General or ultimately, if the law is failing, for Parliament.
I shall not--and I hope the House will understand--refer to any particular recent case, both because the legal process may not yet be complete and also because the Press Complaints Commission may yet receive a complaint. It would be quite wrong of me to discuss a case upon which I may be called to adjudicate.
The code of practice which the PCC seeks to administer is a code that has been fully and freely endorsed by members of the press. They drew up the code, and it is in a very real sense their code, not mine. The PCC deals with some 3,000 complaints a year, overwhelmingly from ordinary members of the public. The vast majority of complaints are resolved to the satisfaction of the complainant. But in the five years of its existence, the Press Complaints Commission has not received one single complaint on the subject of payments to witnesses.
My noble friend referred to paragraph 9 of the code which states (I paraphrase) that payments should not be made to witnesses or potential witnesses except where the material ought to be published in the public interest. He quoted one of the three cases of public interest; namely, "detecting or exposing of crime or a serious misdemeanour". The second is: "protecting public health and safety"; and the third: "preventing the public from being misled by some statements or actions of an individual or organisation".
I have to say to my noble friend that I am pretty certain that a great many newspapers would seek to defend their actions, were they to be challenged, on a wider basis than just the first case, as mentioned by my noble friend.
The code itself seems on the face of it clear. But I am aware that it is considered ambiguous, because of the uncertainty of knowing what a "potential" witness is in the initial period after arrests are made. It is often inevitably impossible at that stage of judicial proceeding to foretell how the prosecution and defence cases are likely to develop. I do not think there is an easy way round that difficulty.
There is also the problem of knowing how the public interest--which certainly does not mean whatever interests the public--is applied. There have been instances where people who ultimately became witnesses have spoken to a reporter without a full appreciation of the importance of their evidence. As a result, reporters informed the prosecuting authorities, who may otherwise not have known about a witness's existence. We have examples of that.
There is also a clear flaw in the argument that we can solve the problem by having rules that forbid payments or offers of payments to witnesses or potential witnesses prior to the conclusion of the proceedings so as to ensure that their evidence is not tainted.
It is not, I think, suggested that the making of all payments after proceedings have been concluded should be outlawed, whether in respect of books, the serialisation of books in newspapers, newspaper reports or television documentaries. It must follow that if there is a risk that a witness may slant his evidence in the light of payment or offers of payment made prior to the conclusion of proceedings, that risk would still exist if the witness knew that offers of payment might be forthcoming once the proceedings had been concluded. As my noble friend reminded us, this is not a new matter. The cases of the Moors murderers, Jeremy Thorpe and Peter Sutcliffe come to mind.
Other media may have to consider this issue as well as the press. But one way in which I believe it might be possible for press self-regulation to move forward is for there to be a new protocol to the code of practice for the press to ensure that where newspapers or magazines, having given proper consideration to the public interest, have financial dealings with potential witnesses, they must take every possible step, first, to demonstrate that there is a legitimate public interest at stake involving matters that the public have a right to know; secondly, to ensure that no dealings have influence on the evidence that those witnesses may give; and, thirdly, that the payment or offer of payment to any witness who is actually called in proceedings should be disclosable to the prosecution and the defence.
It is clear to me that some witnesses in criminal cases do have a story to tell, and demand money for telling it. The public may have a right to hear stories about, for example, failings in the conduct of a police force in helping bring particular criminals to account, or the failings of a social services department. Because of the legitimate commercial pressures within and between different parts of the media and the desire to ensure exclusivity, there is inevitably competition between newspapers, between newspapers and book publishers and with broadcasters. However, if there are to be payments, there must be a clear public interest in that transaction which must be transparent and open to scrutiny. The protocol that I propose will have to set out those principles.
My job is to encourage newspapers and magazines to develop their own effective rules, which must be clear, consistent and based on the increasing success of the PCC's own code of practice in other areas, and be supported by the entire press. I have therefore begun discussions with editors and proprietors of newspapers and magazines to help facilitate a solution to this serious issue based on the protocol that I have outlined today. Proprietors have an especially important role to play, as it is their money that is being spent; and it is to them that editors must account, given their contractual duty to observe the code. The intention of the new protocol must not contain any doubt. And the industry's commitment to voluntary control in this area, as in all others, must be fulfilled in deed as well as in word.
I do not guarantee that I will be able to negotiate a satisfactory protocol, but I will have a determined attempt. A free press is an integral part of a free and democratic society. I for one will do all I can to avoid any form of statutory controls. But a free press also needs to be a responsible press--and its response in this area may prove to be another touchstone of that responsibility.
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