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Lord Monson: My Lords, with his usual skill my noble friend Lord Bridges has taken what was already a worthwhile and desirable Committee stage amendment and made it even better. I am happy to support it. I am only sorry that more noble Lords did not add their names to it given that surely almost all of us in the Chamber must support its basic objectives. As I said in Committee, a generation or so ago those who eavesdropped, peered through keyholes or steamed open and read other people's letters were considered beyond the pale. Anyone who profited financially from such reprehensible activities was considered the lowest form of human life. Sadly the old decencies are vanishing which is why we need an amendment such as this, even though it covers only one aspect of invasion of privacy. I hope your Lordships will support it.
Lord Renton: My Lords, although we should always be reluctant to create new criminal offences I consider
that the noble Lord, Lord Bridges, made out a strong case for this one. Surely, confidentiality of telephone conversations is essential for various reasons--I put family reasons first--including various professional reasons. For example, a doctor having already examined a patient may feel it necessary to telephone him instead of visiting him. Surely that telephone conversation should be confidential. I should have thought that in the legal profession it is highly desirable that conversations between solicitor and client should be protected in this way, and sometimes--this does not often happen because barristers act through solicitors--even conversations that barristers may have either with solicitors or even occasionally with a lay client deserve confidentiality. I am not a businessman but there are eminent businessmen on your Lordships' Benches. There must be many occasions when it is in the public interest as well as the private interest that business conversations should be protected. There is no other way that I know of protecting them. Lest anyone thinks that we are going too far in applying the principle of protecting privacy, I would say that this is a limited step in that direction but a highly necessary one.
Lord Henley: My Lords, I start by welcoming the noble Lord, Lord McIntosh, to deliberations on the Crime and Disorder Bill as I gather he is to respond to this amendment. We see him for the first time on what I now reckon to be the eighth day of the passage of this Bill through the House. I hope that he enjoys the experience in part.
I did not speak on this amendment in Committee but I listened carefully to what the noble Lord, Lord Bridges, said on that occasion and I certainly studied with some care the response of the noble Lord, Lord Williams of Mostyn, for the Government. I have considerable sympathy with the ideas behind the amendment. Like my noble friend Lord Renton and the noble Lord, Lord Monson, I am totally opposed to the idea that secretly recorded telephone conversations should be published by the newspapers or other outlets. I believe that people have a right to confidentiality. I think that most people are agreed on that. I am sure that the Government will also be the first to say that they too agree that in the main such conversations should not be published.
However, as the Government explained on the third or fourth day in Committee, this matter will, I understand, be partially dealt with by, I believe, the 1995 data protection directive and also by the Data Protection Bill currently proceeding through this House. There are difficult matters here which relate on one side to questions of privacy and on the other to matters concerning both public interest and press freedom. At this stage I want to listen carefully to the Government's response on how they see these matters being dealt with by the directive and by the Data Protection Act when it finally reaches the statute book. I hope that they can give convincing reasons as to why an amendment of this kind is not the appropriate way forward. I shall listen carefully to what the Government have to say before making up my mind on how I wish to proceed, and how
those on these Benches who take advice from me wish to proceed, once the noble Lord, Lord Bridges, has decided what to do about his amendment.
Lord McIntosh of Haringey: My Lords, I start by expressing my gratitude to the noble Lord, Lord Bridges, for coming to the Home Office early on Monday morning to discuss the matter with my noble friend Lord Williams and myself, and for the care that he has taken in his revision of the amendment to take account of some of the things we pointed out to him at that time. I assure him that we listened carefully to what he had to say too. As I have already indicated to him informally that we shall not be able to accept the amendment, I hope the House will forgive me if I give my reasons in some detail.
The core of the amendment is contained in the proposed new subsection (2) and in the provisions for exceptions to the offence of publishing or causing to be published a telephone conversation. The proposed new subsection (2)(a) refers to contravention of the Interception of Communications Act 1985. This is technically deficient because there is currently no offence of recording a conversation made over a public telecommunications system provided one or more parties consents to the recordings, under Section 1(2)(b) of the Interception of Communications Act. There is no offence at all as regards recording on a private network.
The proposed new subsection (2)(b) refers to a situation where one of the parties is a journalist and the conversation is part of his investigations. The noble Lord reminded us that his Committee stage version of the amendment would have required the journalist to make clear to his interlocutor that the conversation was being recorded or conducted with a view to publication. We pointed out that that would make investigative journalism virtually impossible. The noble Lord recognised that point. This version is a step towards protecting investigative journalism but it does not protect a journalist who is listening in to a conversation between two other parties without their knowledge or consent and who would not be caught by the industry code of practice provided he could show that he was acting in the public interest.
The proposed new subsection (2)(c) refers to conversations recorded by an employer of one of the parties,
- "as part of a routine procedure for recording telephone conversations within the workplace".
Anyone who listens to commercial radio and the advertising of financial services on it will know that it is a common occurrence for someone to say that conversations may be recorded for the protection of the public. The provision in this subsection goes further than the EC telecoms data protection directive which allows legally authorised recording of communications in the course of lawful business practice for the purpose of providing evidence of a commercial transaction or of any other business communication. The amendment would prohibit an employer using recorded material as evidence of a commercial transaction. I remind the House that court proceedings would constitute publication.
The fourth part of subsection (2) refers to when the conversation is between a firm and its clients and the recording is made to provide evidence of a commercial transaction. It replaces paragraph (d) which was contrary to Section 9 of the Interception of Communications Act which expressly prohibits the use of any intercept evidence gathered under an IOCA warrant in any court. No exception is made for the Director of Public Prosecutions or anyone else. The new subsection attempts to accommodate acceptable practices in the financial services sector. But since we do not have a legal framework for recording, that is undesirable.
Paragraphs (c) and (d) would not amount to implementation of the Telecoms Data Protection Directive. We would therefore have to legislate again by October 2000. We would need to establish a legal framework for the recording and publication of communications on public and private networks. This requires time for careful consideration and consultation. The proposed amendment would outlaw acceptable recording and publication practices by omission rather than intent.
I recognise, as the noble Lord, Lord Henley, recognised, that the amendment of the noble Lord, Lord Bridges, raises complex issues of privacy, public interest and press freedom. The noble Lord made it clear that his principal objective is to mark limits of acceptable press behaviour. We believe in a free press. We need to be very careful to balance properly the right to privacy with the right of freedom of expression. As we have said many times, we prefer effective self-regulation of the press to any statutory control or a law of privacy. As the noble Lord, Lord Bridges, acknowledged, his proposed amendment would be one step towards statutory control.
The newspaper industry code of practice, on the basis of which the Press Complaints Commission resolves complaints, already requires that,
- "Journalists must not obtain or publish material obtained using clandestine listening devices or by intercepting private telephone conversations unless it can be demonstrated that this is in the public interest".
The Government are committed to self-regulation and expect the press to keep to both the letter and the spirit of the code.
As I have said, another difficulty is that the amendment cuts across our implementation of Article 5 of the EC Telecoms Data Protection Directive. As my noble friend Lord Williams said in Committee, we must implement this article by October 2000. The article requires member states to ensure via national regulation the confidentiality of communications and in particular to prohibit the listening, tapping, storage and other kinds of interception or surveillance of communications by people other than the users without the consent of the users except when legally authorised.
Accepted recording practices are not explicitly covered by UK law at present. There is no UK legislation for recording on private telephone networks. It will be necessary, as part of implementing Article 5 of the directive, to establish a framework for recording tapping of communications whether on
the private or public network. So we need to consult widely and to work closely with the relevant industries to ensure that we get the legislative framework right.
I believe that our approach to this is properly expressed in the light of the Data Protection Bill and the Human Rights Bill. We have to be very clear about the precise policy intended. Our fundamental objection to the amendment is that it would undermine our support for press self-regulation. I am rather sorry that the noble Lord, Lord Bridges, sought to impute motives to the Government in supporting press regulation. We are not doing so in fear of the disapproval of Fleet Street or Wapping, or in search of their support. We are doing so because we believe that that is right in a free society. The amendment would be a statutory milestone too far. I do not dismiss the concerns of the noble Lord. The Government take the matter very seriously but we do not feel that the amendment is the right way to tackle the problem. I hope that the noble Lord will not press the amendment.
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