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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 We are not dealing with that section; as I understand it, it has been repealed.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
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.
Resolved in the negative, and amendment disagreed to accordingly.