Clause 64

Part of Serious Crime Bill – in a Public Bill Committee at 10:15 am on 5 July 2007.

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Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham 10:15, 5 July 2007

It would be convenient if we could finish this matter, so I shall be as brief as possible.

Hon. Members may ask the purpose of the amendment, but it is perhaps more important than they have spotted because it goes to the freedom of the press. I hasten to say that in my previous incarnation as a Minister I have suffered from the press, and I am no greater liker of them even though my wife was a journalist and I worked with the press for many years as a libel lawyer. Notwithstanding the fact that I do not like the press, I recognise that a free press is an essential ingredient in a democratic society and that one has to put up with an awful lot of nonsense in the recognition of that principle. Part of the safeguard that one has from the operation of a free press is the number of leaks that they receive from within Government organisations and the publication of those leaks. Those  who have been or who are in government frequently dislike leaks. However, leaks sometimes serve a very important purpose.

Incidentally, let me say in parenthesis that when Departments start leaking, it normally points to low morale and, very often, poor ministerial leadership, which is something that the Home Office under the former Home Secretary might reflect upon. We will not go into that because I can see that you are getting to your feet, Mr. Bercow. I have a curious habit of irritating you; I am so sorry.

We have to recognise that leaks are important to safeguard liberty. It is against that background that one must look at clause 64(1)(b)(ii) because it makes it wholly plain that in the situation in which a journalist is in receipt of a leak from within the designated public authority and then publishes that leak, that journalist will be committing an offence. The punishments that may be visited on that journalist are not slight. Clause 65(1)(b) states that the journalist may on conviction be subject

“to imprisonment for a term not exceeding two years or to a fine or to both.”

Incidentally, the fine is unlimited. Therefore, in principle, the journalist can be exposed to an unlimited fine and sentenced to up to two years in prison.

The Minister will say that there is safeguard in clause 65(2), which states that the prosecution can only take place with the authority of the named individual, such as the Director of Revenue and Custom Prosecutions or the Director of Public Prosecutions. I personally do not find that a satisfactory safeguard, not least of all because both the DPP and the Director of Revenue and Custom Prosecutions in their collective position might well have an interest.

That then takes one to what could be the nature of the leak. Anybody who knows anything about Government can see that any type of leak is possible, but they certainly include the following: the fact that the Departments are grossly incompetent; that the systems are wholly haywire; that individuals are corrupt; and that policies are wholly mistaken or not working.

Let us look at the Child Support Agency. Its incompetence and failures might well feature in a leak. Is it really to be said that the press should not be able to report such matters from a leak? Let us stand back and say, “We have a problem here because of the confidential nature of the information.” There is a public interest here in not rendering criminal the journalist who publishes the leaked information, which may well be in the wider public interest. Where then is the protection?

I have already said that the prosecutions have to be made with the authority of the named individuals. The only defence that is provided for is in subsection(4). It states:

“It is a defence for a person charged with an offence under this section to prove that the person reasonably believed—

(a) that the disclosure was lawful; or

(b) that the information had already and lawfully been made available to the public.”

The latter does not arise in the case of leaks because leaks, by definition—or at least usually—are of unpublished material. It is very difficult to see how a leak can be described as lawful when in fact the process of leaking is said to be an offence. Therefore, the truth is, as I understand it, that there is no defence available to the journalist who publishes a leak. Is that really what the Committee wants to do? I rather question that. It is in that spirit that I have moved my amendment. I think that it is a matter of some importance.