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Lord Bach moved Amendment No. 12:
- Page 7, line 13, leave out from ("activities") to end of line 15.
On Question, amendment agreed to.
Clause 19 [Disclosure of information: duty]:
Lord Goodhart moved Amendment No. 14:
- Page 9, line 12, at end insert ("other than journalism").
The noble Lord said: My Lords, this is a very simple and brief amendment but it raises a very important issue. Clauses 15 to 18 create a number of offences. Basically, those offences are concerned with fund-raising and money laundering for terrorist purposes. Clause 19 requires that anyone who suspects someone else of committing an offence under Clauses 15 to 18 should report their suspicions to the police if those suspicions are based on information which has come to them in the course of a trade, profession, business or employment. Failure to report those suspicions to the police is a criminal offence, punishable by imprisonment of up to five years.
It is obvious that this clause is mainly directed to financial businesses or professions, such as banks and accountants, which are likely to be able to see from the audit of their books or accounts that money has been coming in in circumstances which make it likely that it is for terrorist purposes, or else the money is being laundered. We have no objection to the clause in so far as it affects banks, accountants and so on but, as drafted, this clause extends to journalists as well, and we very strongly object to that. That objection, I believe, is shared very widely by the media. Certainly I have received letters from the Society of Editors and a joint letter on behalf of the BBC, ITN, ITV and Channel 4, objecting to the restrictions on journalism.
I believe there are two reasons why extending Clause 19 to journalism is wrong. First, it inhibits freedom of speech or, as the International Covenant on Civil and Political Rights put it,
- "the right to seek and impart information".
Secondly, we believe that the extension of Clause 19 to journalism will be counterproductive. Investigative journalism can be useful. Press investigation into terrorist fund-raising can be helpful to the Government, but plainly it will be inhibited by this clause. What will happen if the clause is enacted as it stands? No journalists will be prepared to investigate terrorist fund-raising on the basis that they will have to tell the police how they got their story, who it came from and what was said by whom about whom. Journalists may either refuse to pass that information on to the police and risk prosecution under Clause 19 or, more likely perhaps, they will refuse to investigate and report on terrorist fund-raising. Either way, the police will get no useful information.
It is true that Clause 19 allows a "reasonable excuse" defence but the history of decisions in the courts of this country show that protection of sources is not likely to be regarded as a reasonable excuse. I also recognise that Clause 19 is based upon a section of the Prevention of Terrorism Act, which does not exclude journalists. However, we are now replacing that Act with permanent legislation and that gives us a chance to think again. There is no presumption that Clause 19 should be identical with a previous section of an Act.
I believe that the application of Clause 19 to journalists inhibits freedom of speech. I believe that the application of this clause to journalists will confer no benefit on the police or on the Government. They will get no information which they would not otherwise have received. I believe that the application of Clause 19 to journalists does not advance the main purpose of the clause, which is directed to obtaining financial information from banks, accountants and other similar businesses and professions. It is not necessary for the protection of a democratic society. I believe that there is an overwhelming case for excluding journalists from the operation of Clause 19. I beg to move.
Lord Lester of Herne Hill: My Lords, perhaps I may add a couple of words in support. This is, as my noble friend has said, an extremely important matter. The noble and learned Lord, Lord Falconer, may remember that during the passage of the Human Rights Bill the press made an enormous fuss about the potential threat, as they saw it, in the Human Rights Bill to freedom of speech and freedom of the press. The noble and learned Lord, Lord Falconer, and his colleagues very wisely decided collectively on including a media clause in the Human Rights Act that would give enhanced protection to freedom of speech.
At one stage in my career I acted in a case which challenged the broadcasting ban on Sinn Fein, where we had the conflicting interests of national security on the one hand and freedom of speech on the other. The Law Lords were unable to give direct effect to the free speech guarantee in Article 10 of the convention because it had not been incorporated into our domestic law.
The Government have now incorporated the convention directly into our law and, to quote my old colonel when I was in the Army, I would bet the Bank of England against a blood orange that if there were a challenge in an actual case by journalists under this clause the court would have to re-read this provision compatibly with Article 10 of the convention in the particular case. Again, it means more money for my profession, and it is quite pointless. An exception of this kind achieves legal certainty, proportionality and the freedom of the press without causing any serious harm to any facet of the public interest. Therefore, we very much hope that the Government will accept this modest but crucial amendment.
5 p.m.
Lord Desai: My Lords, I support the amendment. It is extremely important. As I have often said, I have colleagues who do similar things for the sake of knowledge. That knowledge is useful for society, and even for preventing terrorism. But if, in the course of acquiring it, journalists are to be prosecuted, that will be a great blow.
Lord Falconer of Thoroton: My Lords, as was explained in Committee, we do not support a specific
exemption for journalists from the reporting requirement in Clause 19. The clause replicates an existing provision which in effect makes it an offence not to give information about, for example, fund-raising for proscribed organisations.As was said in Committee, we fully accept the integrity and professionalism of the journalistic profession as a whole and of individual journalists. But with that integrity and professionalism must also go a degree of responsibility to society. It is a matter, as ever, of striking the right balance.
We believe it is important to retain the old Section 18A of the Prevention of Terrorism Act, and this is the provision now replicated in Clause 19 of the Bill. We regard this as an essential provision of permanent counter-terrorist legislation.
Of course, the Government recognise that the journalistic profession takes its responsibilities extremely seriously. But your Lordships will understand, I am sure, that to provide a specific exemption for journalists would leave a potential loophole in this essential provision. It would also carry a risk of making it easier to launder terrorist finance through press and media companies, a result which I am sure noble Lords would not intend.
I do not accept the accusation made in Committee that our approach shows that we do not understand how journalism works. This is not about how journalism works. It is about how terrorism works.
As has been referred to by the noble Lord, Lord Goodhart, there is the "reasonable excuse" defence in Clause 19(3). That is an important safeguard in relation to this provision. How it will work in relation to journalism is a matter to be decided in each individual case.
Perhaps I may go further in offering reassurances to the journalistic profession as to our intention in the Bill as a whole. We have had various representations from various parts of the media expressing concern that a number of provisions in the Bill will inhibit the legitimate reporting of the media on matters to do with terrorism. These concerns have been expressed not only in the area of reporting requirements, which we have just discussed, but also in relation to the "collection of information" offence in Clause 58 and to the investigatory powers in Schedule 5.
We have been asked on a number of occasions whether anything in the present wording of the Bill is intended to alter the balance between, on the one hand, the vital responsibility of a government to protect their citizens from terrorism and, on the other, the freedom of expression of the media in the reporting on, and scrutiny of, these groups.
The answer is that all the provisions in the Bill which are of particular concern to journalists are directly modelled on provisions in existing legislation. Indeed, Section 18 of the Prevention of Terrorism Act, which is also of concern, is repealed by the Bill. The provisions which are replicated by the Bill will need to be read with the new definition of terrorism in Clause 1, which, unlike that in the existing legislation, extends to all forms of terrorism.
However, I should like to emphasise that, other than ensuring that an equivalent provision is in place to deal with all forms of terrorism, it is certainly not the intention of the Government that anything in this Bill should change the current balance between the freedom of expression that the British media enjoy and the responsibility to assist in combating terrorism. With those assurances, I very much hope that the noble Lord will feel able to withdraw his amendment.
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