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6.30 p.m.
Lord Mackay of Drumadoon: I am grateful to the noble and learned Lord for his full and clear explanation. He chose his words carefully when dealing with what this new offence would allow to be prosecuted. I hope I did not misunderstand him but my impression was that he accepts my position that it will not allow the Crown to prosecute people for behaviour for which it cannot prosecute at the moment. Therefore, I do not accept that there is anything wrong with the law, although I fully accept the point he made regarding the Commission for Racial Equality that it may be perceived that there is something wrong with our law.
But there it is. I have pointed out the difficulties. I am not alone in doing so. I hope the concerns expressed by those who practise in the field do not bear fruit. However, in the light of what has been said, I do not insist on my opposition to Clause 26.
Lord Bridges moved Amendment No. 171:
After Clause 26, insert the following new clause--
("Publication of telephone conversations
.--(1) Subject to subsection (2) below, a person who publishes, or causes to be published, a telephone conversation made by means of a public telecommunication system shall be guilty of an offence.
(2) Subsection (1) shall not apply in a case where--
(a) the recording of the conversation did not contravene the provisions of the Interception of Communications Act 1985, and all parties to the telephone conversation in question have given their consent to publication;
(b) one of the parties to the conversation is a journalist, the conversation was undertaken as part of his professional investigations and the journalist made it clear to the other party or parties to the conversation that the conversation was being either--
(i) recorded, or
(ii) conducted with a view to publication;
(c) the conversation was recorded by the employer of one of the parties to the conversation ("the employee") as part of a routine procedure for recording telephone conversations within the workplace provided that--
(i) the employee has been made aware in writing of this procedure, and
(ii) publication is necessary for or in connection with the conduct of disciplinary proceedings; or
(d) the recording of the conversation has been authorised by the issue of a warrant by the Secretary of State under section 2 of the Interception of Communications Act 1985, and publication has been authorised by the Director of Public Prosecutions for use in legal proceedings.
(3) A person found guilty of an offence under subsection (1) shall be liable--
(a) on summary conviction, to imprisonment for a term not exceeding three months or to a fine not exceeding level 5 on the standard scale, or to both;
(b) on conviction on indictment, to imprisonment for a term not exceeding six months, or to a fine, or to both.").
The noble Lord said: In speaking to this amendment I should first explain the intention, which is to create a new criminal offence; namely, the publication of the text of a clandestinely recorded telephone conversation. It is already illegal to make such a recording, under the Interception of Communications Act 1985, when the communication passes from the wires of the public telephone system, which must, I think, cover the large majority of such telephone calls.
I have for long been of the opinion that a legal provision in this sense would be in the public interest, and the possibility came freshly to mind when listening to the debate in this House on the Motion of the noble Baroness, Lady Turner of Camden, on 14th January. I listened with particular attention to the earnest and carefully argued plea of the noble Lord, Lord Wakeham, that the only way to regulate the press is by a voluntary code and that any statutory system is bound to fail. I must explain that I, too, do not favour wholesale statutory control of the press, and that I value the best traditions of the free press very highly. That is an essential part of our democratic freedom. But that is not to say that an occasional statutory milestone would not be helpful. That is what the amendment is designed to do--to indicate a no-go area.
What I hope the amendment would do would be to reduce to some extent the commercial pressures which weigh so heavily on the editors of newspapers. The area is surely over-populated today and keeping a newspaper alive must be a tricky business, requiring constant endeavour. I would suppose, as an outsider to this world, that when the editor of a newspaper is offered the transcript of a sensational, perhaps salacious, conversation involving persons of interest to the public, he may conduct his own private cost-benefit analysis. On the debit side, he would calculate the damages he might have to pay in the case of publication and the heavy cost of litigation and legal advice; while on the positive side of the balance he would estimate the increased circulation of his paper and the extra profit he might hope to win. He might also be swayed by arguments of the "publish and be damned" variety and the extra prestige and security in his job which he might gain in the eyes of his proprietor, always a significant matter for the editor of a newspaper.
I do not believe that the decision to publish sensitive material should be examined in this way at all. No, it should be clear to the editor that he is in possession of what is almost certainly an illegal document and that publication would be a further illegality for which he would be held personally responsible. If it is a seriously incriminating document and he wishes to expose evil
I would myself suppose that sufficient could be said in such indications to indicate the nature of the allegation so as to permit the public authorities to conduct their own investigation without using the text of the transcript. The editor could also consider an approach to the Home Secretary or to the Permanent Secretary at the Home Office, a person always chosen for his extensive experience, good sense and discretion. My hope is that the editor's help would in due course receive public acknowledgment and thanks in the event of a successful prosecution or the unveiling of some sordid practice. That would be the best way to increase public esteem for the newspaper and its editor.
I turn briefly to the text of Amendment No. 171, which stands in my name and that of my noble friend Lord Monson. Subsection (1) creates the new offence. Subsection (2)(a) exempts a legitimately recorded telephone conversation when the parties have agreed to its publication. Subsection (2)(b) is intended to cover the situation, quite common, I believe, when a journalist telephones a politician or a person in public life and both parties are aware that the conversation is likely to lead to the publication of an account of it. The journalist may wish to record the conversation to ensure the greater accuracy of his report. The amendment seeks to make it clear that this is a permissible practice but that the journalist should inform, and preferably obtain the prior consent of, the person being interviewed before the recording starts.
Subsection (2)(c) covers another common situation, typically in the dealing room of a bank or financial institution, where the telephone conversations of the dealers are routinely recorded to protect both parties in the event of a misunderstanding or a failure to complete a deal. Should such problems arise, the regulatory body may play back the tape to ascertain what was said. The words in this subsection enable the regulator to use the transcript for this purpose and as the basis for discipline, if necessary, provided that the employee has been given written notice of this procedure in advance. Normally, I believe the employee is informed of this practice at the time of his engagement, but the effect of the amendment would make this a requirement.
Subsection (2)(d) enables the Director of Public Prosecutions to make use of transcripts, which have been properly authorised by the Secretary of State, as supporting evidence in a public prosecution.
Subsection (3) determines the penalties for infraction; namely, a term of imprisonment not exceeding three months or a fine at Level 5, that is £5,000 at present. I suggest that, given the financial muscle of the press,
I venture to hope that this amendment will attract support from the Committee. I must make it explicit that it is not aimed at any particular person or class, whether newspaper editor or proprietor. Rather, it seeks to mark the limits of acceptable behaviour in an area where I believe it is increasingly needed. The technical means of recording telephone conversations have grown rapidly in recent years and are still increasing. If we are to maintain the privacy of private, personal conversations and communication, which we rightly prize and cherish in this country, I believe that an amendment on these lines is required.
I am not myself a lawyer and I have relied much on the expert advice and skills of some of my noble and learned friends and on the staff of the Public Bill Office, which I am glad to acknowledge. If others in the House and, of course, the Government Front Bench, have improvements to suggest, I shall be glad to consider them. I am not wedded to this precise form of words, but do earnestly seek to improve the current situation with a passage on these lines.
I may be asked whether this Bill is the appropriate vehicle to add this amendment. I should explain that I did take advice on this point from the Public Bill Office. I asked whether the Bill ratifying and incorporating the European Convention on Human Rights might be more appropriate. The office said that this Bill was a better vehicle. That explains my intention. I beg to move.
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