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Lord Lester of Herne Hill: My Lords, before the Minister sits down, perhaps I may ask him two questions. Am I right in recollecting that the noble and learned Lord, Lord Lloyd of Berwick, specifically recommended in his report against retaining this offence in relation to journalism? I do not have the report in front of me but that is my recollection.
Secondly, the Minister referred to the defence of "reasonable excuse". How does that fit with Article 10 of the European human rights convention as interpreted by the European Court of Human Rights in the Goodwin case where the court emphasised that the confidentiality of sources of journalists was fundamental to the freedom of the press? Is it the Government's view that the effect of Clause 19(3) is intended to be that, where the press has confidential sources, that confidence must be upheld and respected by the courts and therefore must constitute a reasonable excuse. If that is not the position, how are we complying with the Goodwin judgment in framing an offence of this character which puts the burden of proof not upon the state but upon the newspaper to prove a reasonable excuse?
This matter is of vital importance to the press because of the chilling effect that it will otherwise have on freedom of speech. It will certainly very much affect my view to know the answers to these questions: first in relation to the noble and learned Lord, Lord Lloyd of Berwick, and secondly, what brief the Minister has in relation to compatibility with the convention rights, especially in regard to the Goodwin case and confidentiality of sources. I am deliberately speaking slowly so that these points may be fully considered.
Lord Falconer of Thoroton: My Lords, perhaps I may deal first with the point relating to the report of the inquiry into legislation against terrorism chaired by the noble and learned Lord, Lord Lloyd. I do not think that I am in a position to agree with the noble Lord that he did recommend an exception in relation to journalists. I am told that his recommendation was in relation to Section 18 of the Prevention of Terrorism Act. We are not dealing with that section; as I understand it, it has been repealed. So I do not think the position is as the noble Lord recalls it. Perhaps I may write to him on this point.
So far as concerns "reasonable excuse" and its relationship to the Goodwin case, we believe that Clause 19 does not offend against the convention. "Reasonable excuse" is plainly one part of that. It will be one part of the way in which the section operates. I do not know what was the significance of "betting a
blood orange", but it seems to us that, looked at overall, including the "reasonable excuse" defence, the clause complies with the convention.
Lord Lester of Herne Hill: My Lords, I thank the Minister for that reply, but I am still in the dark. The offence is committed if the newspaper does not disclose to the police certain information which has come to the attention of the newspaper in the course of following its profession of journalism. The provision therefore imposes a severe criminal penalty on freedom of expression and in a way that would require the disclosure of confidential information unless there were "reasonable excuse" for not doing so. Respectfully, therefore, I repeat the question. Is it the Government's intention that the confidentiality of sources will be overridden? If so, how does that comply with the Goodwin case?
Lord Falconer of Thoroton: My Lords, one must look at the whole of Clause 19, including subsection (3). The noble Lord selects the beginning of the clause but does not look at it as a whole or its background.
Lord Goodhart: My Lords, I regret that I have not been persuaded by the response of the noble and learned Lord. He was unable to point to any real reason why the Government or police should obtain a benefit from including journalists within Clause 19. The idea that a loophole will be created by excluding journalists is wholly fanciful. Journalism does not involve itself in money-laundering. Therefore, if nominally a journalist organisation goes in for money-laundering that is not an activity that it undertakes in the course of the trade, profession or business of journalism. That means that it will not be caught anyway under Clause 19 unless a particular organisation can be regarded as carrying on some other business.
Be that as it may, we on these Benches regard Clause 19, in so far as it applies to journalists, as a serious infringement of freedom of speech and the press. That being so, we believe that it is appropriate to seek the opinion of the House.
5.11 p.m.
On Question, Whether the said amendment (No. 14) shall be agreed to?
Their Lordships divided: Contents, 65; Not-Contents, 145.
Addington, L.
Avebury, L. [Teller]
Barker, B.
Beaumont of Whitley, L.
Bradshaw, L.
Clark of Kempston, L.
Clement-Jones, L.
Cox, B.
Crickhowell, L.
Darcy de Knayth, B.
Desai, L.
Dundee, E.
Eden of Winton, L.
Ezra, L.
Ferrers, E.
Geddes, L.
Geraint, L.
Goodhart, L. [Teller]
Gray of Contin, L.
Greaves, L.
Hamwee, B.
Harris of Greenwich, L.
Holme of Cheltenham, L.
Hooper, B.
Hooson, L.
Hylton, L.
Jenkins of Hillhead, L.
Lester of Herne Hill, L.
Lucas, L.
Lyell, L.
McConnell, L.
Mackie of Benshie, L.
McNally, L.
Marlesford, L.
Methuen, L.
Miller of Chilthorne Domer, B.
Monson, L.
Montrose, D.
Moynihan, L.
Newby, L.
Newton of Braintree, L.
Northover, B.
Oakeshott of Seagrove Bay, L.
Phillips of Sudbury, L.
Razzall, L.
Redesdale, L.
Rennard, L.
Roberts of Conwy, L.
Rodgers of Quarry Bank, L.
Roper, L.
Russell, E.
Ryder of Wensum, L.
Sandwich, E.
Scott of Needham Market, B.
Shutt of Greetland, L.
Smith of Clifton, L.
Taverne, L.
Taylor of Warwick, L.
Thomas of Walliswood, B.
Thomson of Monifieth, L.
Tope, L.
Tordoff, L.
Tugendhat, L.
Walmsley, B.
Wigoder, L.
Acton, L.
Ahmed, L.
Alli, L.
Amos, B.
Andrews, B.
Archer of Sandwell, L.
Ashley of Stoke, L.
Ashton of Upholland, B.
Bach, L.
Barnett, L.
Bernstein of Craigweil, L.
Billingham, B.
Blackstone, B.
Blease, L.
Bledisloe, V.
Blood, B.
Borrie, L.
Bragg, L.
Brennan, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookeborough, V.
Brooks of Tremorfa, L.
Burlison, L.
Carter, L. [Teller]
Chandos, V.
Christopher, L.
Clarke of Hampstead, L.
Cledwyn of Penrhos, L.
Clinton-Davis, L.
Cohen of Pimlico, B.
Colville of Culross, V.
Crawley, B.
David, B.
Davies of Coity, L.
Davies of Oldham, L.
Dixon, L.
Dormand of Easington, L.
Dubs, L.
Elder, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Evans of Watford, L.
Falconer of Thoroton, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Fyfe of Fairfield, L.
Gale, B.
Gavron, L.
Gibson of Market Rasen, B.
Gladwin of Clee, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Greengross, B.
Grenfell, L.
Hardy of Wath, L.
Harris of Haringey, L.
Harrison, L.
Haskel, L.
Haskins, L.
Hayman, B.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Howells of St. Davids, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Chesterton, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L. (Lord Chancellor)
Islwyn, L.
Janner of Braunstone, L.
Jay of Paddington, B. (Lord Privy Seal)
Jeger, B.
Judd, L.
Kirkhill, L.
Layard, L.
Lea of Crondall, L.
Lipsey, L.
Lockwood, B.
Lofthouse of Pontefract, L.
Longford, E.
Lovell-Davis, L.
McCarthy, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L. [Teller]
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
Marsh, L.
Mason of Barnsley, L.
Massey of Darwen, B.
Merlyn-Rees, L.
Milner of Leeds, L.
Mitchell, L.
Molloy, L.
Molyneaux of Killead, L.
Morris of Castle Morris, L.
Morris of Manchester, L.
Murray of Epping Forest, L.
Nicol, B.
Palmer, L.
Patel of Blackburn, L.
Paul, L.
Peston, L.
Pitkeathley, B.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Prys-Davies, L.
Puttnam, L.
Ramsay of Cartvale, B.
Randall of St. Budeaux, L.
Rea, L.
Rendell of Babergh, B.
Richard, L.
Roll of Ipsden, L.
Sewel, L.
Shepherd, L.
Shore of Stepney, L.
Simon, V.
Smith of Gilmorehill, B.
Smith of Leigh, L.
Stewartby, L.
Stoddart of Swindon, L.
Stone of Blackheath, L.
Strabolgi, L.
Taylor of Blackburn, L.
Tenby, V.
Thornton, B.
Tomlinson, L.
Turnberg, L.
Turner of Camden, B.
Warner, L.
Warwick of Undercliffe, B.
Wedderburn of Charlton, L.
Whitaker, B.
Wilkins, B.
Williams of Elvel, L.
Williams of Mostyn, L.
Williamson of Horton, L.
Winston, L.
Woolmer of Leeds, L.
Resolved in the negative, and amendment disagreed to accordingly.
5.21 p.m.
[Amendments Nos. 15 and 16 not moved.]
Clause 40 [Terrorist: interpretation]:
[Amendments Nos. 17 to 19 not moved.]
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