§ 8.55 p.m.
§ Mr. Peter Kirk (Gravesend)
I should hate it to be thought that there is any sort of vendetta going on against my right hon. Friend the Home Secretary tonight. This is certainly not so from my point of view and it is an unfortunate accident, as I am sure my right hon. Friend would agree, that two particular cases have, as it were, come into constellation at this time and that the case I wish to raise with him also concerns the Home Department.
The case I wish to raise concerns the imprisonment of Mr. Reginald Foster and Mr. Brendan Mulholland following their conviction for contempt of court and the sentences of three months' and six months' imprisonment respectively. In saying what I have to say, I should like to make my own personal position plain because I would not claim to be in any way unbiassed on this subject. As a professional journalist I have a considerable interest in this matter.
The two gentlemen we are discussing are not only members of my union but are members of my branch of that union. One of them is a personal friend of mine. For that reason I will not conceal to the House where my sympathies lie. On the other hand, I hope that I will be able to discuss this problem reasonably soberly and, in so doing, I want to make it plain that my object in initiating this short debate is to secure the release of these two gentlemen.
In deploying the case it will be necessary for me to trespass on somewhat wider ground, but I do not wish to go into the whole question of whether the tribunal is a suitable form of instrument for carrying out inquiries in this type of case; least of all do I wish to trespass on the matter which may come up when the Report of the Vassall Tribunal is published. The only reason I raise the subject tonight is that if we wait until that Report is published the two gentlemen concerned will have been in prison 683 for so long that there will be little point in raising the question of their release because they will be due to be released fairly soon.
As I think the whole country now knows, these two men have been imprisoned because they refused to reply to certain questions put to them by the Vassall Tribunal. Though I do not want to go into the substance of the questions put to them, I hope that I may be allowed to make one or two observations on this aspect, for it is a point on which I have, to my surprise, still an open mind. I am not sure whether or not it is right that a privilege of refusing to answer when required by a court of law is justified. I can see that there are certain areas—indeed, certain professions—where such a privilege could be claimed to be within the public interest.
An obvious example of this is the relationship between a solicitor and his client—which is, in fact, protected by law—while another example which most of us would agree is valid in this case is the relationship between a doctor and his patient or a priest and a penitent; and possibly between a journalist and his source. The difficult situation which arises now is that whereas the one case is protected by the law, in that the courts recognise a confidential relationship between a solicitor and his client, none of the other three are.
Attempts have been made occasionally, by the Church of England and the Church of Rome, to secure the same kind of statutory protection for the relationship between a priest and a penitent, but those attempts have all been abandoned long before reaching the Parliamentary stage, the reason being that it was felt that Parliament would never tolerate such a privilege being given. As far as I know, there has never been any attempt to apply a legal privilege of this kind between a doctor and his patient.
§ Mr. Charles Loughlin (Gloucestershire, West)
I am endeavouring to follow the hon. Member's argument, but I do not think that it is strictly analogous to cite the relationship of a priest and a penitent or a doctor and his patient alongside that of a journalist and his source, because in the first two cases the information is kept, strictly to the persons concerned, 684 whereas a journalist's information is blazoned to the world.
§ Mr. Kirk
I think that it is analogous in this respect—I am not riding this very fast, but only trying to sketch the general position—in that the information about the source is kept strictly confidential in the third case as well. That is the point that worries people.
As I say, I am now trying to sketch the general picture. I do not claim any particular privilege—my mind is still very much open on the point—but there is here a difficulty, and I think anyone who pretends that there is not a difficulty has a very difficult case to make—
§ Mr. Eric Fletcher (Islington, East)
But would not the hon. Gentleman agree that in all four cases the test is the same: what is required in the interest of justice? The privilege of a client giving confidential information to his solicitor is privileged because the interests of justice so require. For the same reason, there is no privilege in the case of the priest, the doctor or the journalist.
§ Mr. Kirk
If I may say so, that is not strictly fair, because it depends precisely on what one means by justice. In one case, justice lays down that justice is privileged, if one may call it that. In the other three cases it lays down that they are not quite so privileged. The same thing does not apply, and there is a danger, to which I shall refer later, in carrying this argument about justice too far. I am giving only the general picture. I do not advocate privilege one way or the other, but I do say that if there is privilege it should be for all four cases, and if there is no privilege that should apply also to all four.
The point is that the issue from which the imprisonment of these two gentlemen arose can be debated one way or the other, with a certain amount of justice on both sides. I think that the hon. Gentlemen will agree with me as far as that. If one carries it to extremes, on the one hand, in favour of privilege, one gets to the ludicrous position where nothing can be disclosed and, on the other hand, against privilege, one gets to the point of what I might call the rather remarkable obiter dicta of the Lord Chief Justice that the interests of the State must prevail. Both of those extreme positions are difficult to take up. I stress this 685 point at the moment because I wish to show that the imprisonment of these two men arises from a position that cannot be regarded in black and white by anyone, arid I hope to carry the House that far by what I shall subsequently say.
If one accepts that there is an arguable proposition, either way, about the disclosure of information to courts of law, one would hope that the argument, such as it is, could be carried on on that basis, but one of the things that has worried me very much—not only as a journalist but as a Member of this House—is that a lot of the argument has been argument against the Press as such rather than against these two men.
I do not stand here to defend the British Press—in a lot of cases it is absolutely abominable—but it is an in-justice if the entire sins of the British Press are to be visited on two journalists who happen to be in gaol at the time. That is the position we are beginning to get into: because the Press does in some cases print sensational and scandalous stuff, that is enough, in the eyes of some people—not necessarily in the eyes of hon. Members but certainly in the eyes of some of the writers of letters to The Times and the Daily Telegraph—for condemnation. That is a very dangerous argument indeed. As I say, I do not defend the Press, but, since the Shawcross Committee's Report, negotiations have been going on for the establishment of a much more effective Press Council than we now have, and if these negotiations are successful, it is before that Council that we should fight things out, and not as in this unhappy case.
I come now specifically to the case of Mr. Mulholland and Mr. Foster. The case I want to put to the Home Secretary is that in view of the difficult position, which I think we would all accept—the arguable position—about the disclosure of information, the sentences passed on these two gentlemen were out of all proportion to the offences, and should be remitted.
I say this very firmly because I believe that, whatever one may think of what they did, there can be no doubt about their motives in doing it. It was not to protect themselves. It was to protect somebody else, out of the tradition which has existed in my profession as long as that profession has itself existed. I should 686 like to think that I and any other journalist would have the courage to do what they have done. However, having said that, one must look at any comparable cases one can find. Although I have not gone very far back in my researches, there are two cases since the end of the war which may be germane to this point.
There is the case of contempt of court by the Daily Mirror in 1959 when it published a story highly prejudicial to the character of a man who was then in custody on a capital charge, John George Haigh. The editor of the Daily Mirror was actually brought before Lord Chief Justice Goddard and accused of contempt of court. Lord Goddard had this to say about the case:In the history of this class of case there has never been a case of such a scandalous and wicked character. It is of the utmost importance that this court should vindicate the common principles of justice and, in the public interest, see that condign punishment is meted our to persons guilty of such conduct.This was on 25th March, 1949. After phrases like that one would have expected that transportation for life was virtually the only punishment. Although a swingeing fine was imposed on the paper, which would please the hon. Member for Dudley (Mr. Wigg) if nobody else, the editor who was responsible for this monstrous contempt of court—and it was monstrous—was given three months' imprisonment.
§ Mr. Harold Lever (Manchester, Cheetham)
I am sure that the hon. Member would not want to confuse the House. The reason why the sentence was not greater than it was and why three months was regarded as a very severe sentence for contempt was that it was passed for the first time, in my lifetime at any rate, on an editor who was not directly and personally responsible for the publication of the contempt. He was only responsible in his capacity as editor, and the sentence was then thought to be, as the Lord Chief Justice rightly described it, condign punishment of an editor for failing in his supervisory capacity as editor and therefore being responsible for the contempt. This was quite a different matter from the personal guilt of a journalist. I am not saying that the hon. Member's argument is right or wrong. I am merely saying that he must not confuse it with a case of that kind.
§ Mr. Kirk
I think that it is a fair parallel. The editor is responsible in law for everything that goes into the paper and for this offence a three months' sentence was regarded as adequate, but for the two journalists who have committed the present contempt, as no doubt they have in law, but which I am sure the hon. Member would agree is not of the same character as the type to which I referred, three months in one case and six months in the other are regarded as the requisite sentences. I raised the point because it was the only case that I could find since the war of contempt reflecting on a newspaper where a gaol sentence had been imposed.
The only other case which seemed to bear in any way on this point was one affecting a predecessor of mine as the Member for Gravesend when two journalists refused to answer questions about their sources of information before the Committee of Privilege and they were saved from any action which the House may have taken because the sources themselves came forward.
This brings me to my second point—that this whole procedure is a kind of lottery. At the Vassall Tribunal three journalists were certified to the High Court as being in contempt. Two are in gaol and one is free not because he has gone back on his contempt in any way but because his source came forward and the sources of the others did not. This seems to me to be an absurd situation. It is not justice when the difference between a man going to gaol or not does not depend on anything that he does, because Mr. Clough, the first journalist, as far as I know, never said who his source was until his source said that be indeed was that man. It is not justice when it depends not on anything that the journalist says but on whether somebody else comes forward and gives evidence as it is his clear duty to do. This seems to me to be a matter of very real concern.
In 1938, there was a case in which a fine was imposed on a journalist for refusing to disclose information, but the last case of this kind which appears to have come forward is that of Mr. Maxse, in 1912, at the time of the Marconi incident. Mr. Maxse had refused to give information to a Committee of this House which could have committed him 688 to contempt, and the House and the Committee decided to proceed no further against him. This case was the first, as far as I know, under the Tribunals of Inquiry (Evidence) Act and was, in a sense, a test case.
I do not believe it right that in a case of this kind there should be a sentence of imprisonment. It is perfectly fair to mark what the law is or should be on this point, but I think that if at the end of the day two men are left in gaol because two people did not come forward to give evidence and one man is not in gaol because another person did creates a situation which is unjust. The sentences were extremely harsh, and I hope that my right hon. Friend the Home Secretary, in his wisdom, will see his way of remitting some part of them.
§ 9.11 p.m.
§ Mr. Dingle Foot (Ipswich)
I should like to support the plea of the hon. Member for Gravesend (Mr. Kirk). As he said, we are concerned with a comparatively narrow issue. This is not the time to discuss the general conduct and standards of the Press, nor to consider whether any changes in the Tribunals of Inquiry (Evidence) Act are desirable. [HON. MEMBERS: "Why not?"] Because those are matters which, no doubt, we shall discuss, and, I hope, fully discuss, when we receive the Report of the Vassall Tribunal.
§ Mr. Foot
I do not think that the hon. Member and I differ. I entirely agree that the Tribunals of Inquiry (Evidence) Act should be discussed. I hope that we shall have a very searching debate, because I have always thought that there was a very strong objection to a procedure under which indivduals who are, in effect, on trial and the results of which may be very serious indeed for them, do not have the ordinary protection accorded in a court of law and do not have the right of appeal.
§ Mr. Leslie Hale (Oldham, West)
I understand that the Tribunals of Inquiry (Evidence) Act is a subject allocated by Mr. Speaker for discussion today and is No. 4 in the list posted in the Lobby.
§ Mr. Foot
I do not wish to anticipate that discussion. The discussion initiated by the hon. Member for Gravesend seems to me to raise a much narrower issue. We are concerned primarily with the two journalists who are in prison. It is true that the law extends no protection to journalists or to their informants. Whether it should do so or not is a matter which we may want to discuss later.
Although that be the state of the law, it has been recognised for many years that journalists, and, I think, more especially political journalists, do not generally disclose confidential sources and should not do so. Of course, that is true to some extent of anyone who receives confidential information under a pledge of secrecy, but we should all realise that the problem particularly arises in relation to the journalistic profession I think that the obligation of professional secrecy on journalists has been generally recognised by the House. In writing for a Sunday newspaper the other day, I ventured to refer to a case in 1887, when The Times published a series of articles under the heading "Parnellism and Crime". It was proposed in this House that there should be a Select Committee to inquire into the contents of those articles. At that time the Government was advised by Sir Edward Clarke, who was the Solicitor-General, and he persuaded his fellow Ministers and the House that it would be wrong to appoint a Select Committee because it would inevitably summon the editor of The Times to the Bar of the House.
The editor of The Times would be asked to reveal the name of his informant and, said the Solicitor-General of that day, he would certainly refuse. It was upon that ground that the Government, and, indeed, the House, did not set up a Select Committee. There was a tacit recognition at least that there was a duty of secrecy in regard to his sources imposed upon the editor of a newspaper.
The hon. Member for Gravesend referred to the case of Mr. Maxse. When Mr. Maxse appeared before a Committee of this House, he was asked why he would not reveal his sources and this is what he said:The reason is because the position of an editor depends upon his inspiring confidence in the people with whom he has confidential communications and it would be quite 690 impossible for me to carry on my business if anyone had reason to suspect the communications made to me would be repeated either before a Committee of the House of Commons or any other body.Mr. Maxse was quite clearly in contempt of the Committee and in contempt of the House. Indeed, he was reported to the House by the Chairman of the Select Committee. The House, however, took no action. It was advised by the Prime Minister, Mr. Asquith, who gave a reply which I commend to the Home Secretary as the perfect example of Ministerial stonewalling. This is what Mr. Asquith said:In the circumstances, and having regard to the stage of the Session we have reached"—this, I may say, was in March—and of the importance, as all experience shows, of proceeding in matters of this kind only after full opportunity of consideration and deliberation, I am not prepared to assume the responsibility of advising the House to take any immediate action."—[OFFICIAL REPORT, 13th February, 1913; Vol. XLVIII, c. 1224.]It was a reply which was a model of its kind. The House did not take any action in spite of Mr. Maxse's refusal to answer.
The hon. Member for Gravesend referred to the case of Mr. Lewis, which I very well remember, which came before the House during the 1930s. Mr. Lewis was interrogated by a police officer under the powers contained in the Official Secrets Act. Some of us in those days were a good deal concerned because when the powers of interrogation, which are unique in our law, had first been enacted, an assurance had been given by Sir Gordon Hewart, when Attorney-General, that those powers would not be used against the Press.
I brought in a Private Member's Bill under the Ten Minutes Rule procedure to amend the law. There were other amending Bills and eventually the law was amended in 1940. It was not amended specifically with reference to journalists, but the reason why the House, and hon. Members on both sides, were concerned and why we got the law amended was that hon. Members recognised that a particular responsibility rested upon journalists and we thought that the journalist in that case who had refused to disclose the sources of his information had behaved perfectly correctly.
691 We in this House are all conscious of the imperfections of the Press. I suppose that there is no one of us here who cannot recollect some occasion when a leader writer, a columnist, or a Parliamentary reporter has done us what we considered to be rather less than justice. After all, however, it is the business of the Press—and it is, perhaps, one of the principal functions of the Press in a democratic society—to probe, to investigate and to reveal as far as it can cases of oppression, corruption or incompetence. That is what the Press has to do.
There have been many famous cases when that function has been carried out with great benefit to the country concerned. The most famous of all was Zola's article J'Accuse, which led to the inquiry into the Dreyfus case. A very famous case of this century is that of Henry Nevinson, who went to the Congo and exposed the rule of King Leopold.
One can imagine all sorts of cases arising now when it would be entirely wrong for a journalist to reveal the source of his information. Let me give a case which might conceivably arise. Suppose that a journalist had been to an Iron Curtain country, or to South Africa, and wrote a factual account of what was going on there. Suppose that in any proceedings before a tribunal, or in a court, he were asked to give the names of his informants. If he did, it would lead to their liquidation. In such cases, the journalist would clearly be right to refuse, even though in doing so he might he in breach of the law.
§ Mr. J. A. Leavey (Heywood and Royton)
I am not seeking to make a debating point, but suppose, in that example, that the journalist did not make a factual report, that the circumstances as he reported them were open to question. Surely, if that journalist had the right for which the hon. and learned Gentleman is pleading, there would be no opportunity for any other agency to see whether the sources of his report could be checked.
§ Mr. Foot
I should have thought that that raised no difficulty at all. It is quite possible for a journalist from some other newspaper to go to the country concerned and see whether his impressions are the same.
692 At the moment, I am not asking that there should be a legal right. I am arguing that there must be cases in which journalists are justified in refusing to give their sources of information even though in doing so they may come into collision with the law. That is the proposition I put.
Mr. Foster and Mr. Mullholland did not behave differently from other journalists before the Tribunal. There was a common standard. They refused to give names, as did their colleagues. But in the other cases—particularly the one to which the hon. Member for Gravesend referred—the Tribunal had alternative means of finding out what it wanted to know. In the case of Foster and Mulholland, it was not able to do that. Their informants did not come forward and the Tribunal had no other way of finding out the answers to the questions which were put to these two newspaper men.
It is for that entirely fortuitous reason that these two men went to prison when others of their professional colleagues did not. It is not in any way for us to try over again cases which have been heard in court. That is something which I hope we shall never attempt to do. But, after all, sentences are always necessarily a matter of discretion.
We all know that sentences vary from one court or one judge to another. In dealing with one class of offence one judge will impose a heavy sentence and another judge will impose a much lighter one. If we in this House feel in any case that the sentence is unduly severe, there is no conceivable reason why we should not say so. A great many hon. Members felt that the sentence imposed on Miss Barbara Fell was unduly severe in the circumstances of her case.
When we come to the case of Mr. Foster and Mr. Mulholland, obviously they are in a very singular position. They are certainly not criminals and their purpose was not to set the law at defiance. They were acting in accordance with what they believed to be their own code of professional ethics. In those wholly exceptional circumstances, this is a case in which the right hon. Gentleman might advise Her Majesty to exercise the Royal Prerogative and, at any rate, to reduce the sentences which have been imposed.
§ 9.25 p.m.
§ Mr. Anthony Fell (Yarmouth)
On 4th December, last year, I asked the Prime Minister:Is try right hon. Friend satisfied that the Tribunal—that is to say, the Vassall Tribunal—will do nothing to upset the relationships which exist between the Lobby and Members of this House which are based on trust and mutual confidence?The Prime Minister answered:
It is perfectly clear to me that if he had answered that there had been no upset as a result of the Tribunal and as a direct result of these two journalists being sent to prison, he would have been alone in not having noticed it.
§ Mr. Fletcher
The hon. Member for Yarmouth (Mr. Fell) may not be aware that I put this precise Question to the Minister without Portfolio on Monday and that he said that in his opinion—and he ought to know—the imprisonment of these two journalists had not in any way affected the relationship between Ministers and the Lobby.
§ Mr. Fell
If it had no effect on the relationship between Ministers and the Lobby, I can only think that the relationship between Ministers and the Lobby must have been pretty shocking beforehand. Nobody can seriously suggest that there has been no upset as a result of that Tribunal. Hon. Members must make up their own minds on this, but that is my view and I think that it is the view of many hon. Members.
I have the greatest sympathy with the Prime Minister in this regard for he was hoisted with the Tribunals of Inquiry (Evidence) Act, 1921, which was rushed through the House in an unseemly manner and was turned from a Measure to set up a tribunal for a specific purpose into a Measure to cover all future tribunals which might be set up by both Houses of Parliament.
694 Hon. Members complained bitterly at the time of the speed with which the Bill was pushed through the House of Commons. It was made a permanent feature of our legislation as an afterthought. I hope that those legal minds among us this evening will bear with me while I talk about this matter, which is hedged round with all sorts of legal difficulties. I apologise for having the temerity to do so.
A very few paints were raised as the Bill went through this House and it is not surprising that very few were raised in the Lords, because at that time the Lord Chancellor was none other than Lord Birkenhead. Lord Muir-Mackenzie kicked up a great fuss about certain aspects of the Bill, at any rate according to HANSARD. I looked him up in Dod's Parliamentary Companion of the year 1921 and also in the Who's Who of that time and found that he died in 1919, so apparently it was only his ghost who had gone to defend the House of Lords against the great Lord Birkenhead.
One of the points raised was the protection of witnesses. Mr. Acland said:It was desired that there shall be real protection for the witnesses who come before the body which is to be set up. That condition is also met.There were very few Members who even bothered to be present; but then the Bill was rushed through at 11 o'clock at night. Mr. Rawlinson then said:It means giving very great power to a Government Department, and I cannot believe that it was intended to give such great powers as are provided in the Bill. A Minister of the Crown, in answer to a private Member, may give an undertaking to set up a Committee to inquire into a matter of urgent public importance. The Minister has the sole discretion, without any resolution of the House"—that was later amended, but it shows how badly the Bill was drafted when originally presented—or without any discussion, to give an undertaking to set up the Tribunal, and the House would have no power to interfere. Directly that Minister of the Crown says he will set up the tribunal, he can set it up, and vest it with remarkable powers. I have had the honour of being set up as a tribunal to conduct inquiries, but I should be very surprised if I were allowed the powers that are given to a tribunal under this Bill. When the tribunal is set up it has all the powers of a High Court Judge to call for documents, and to compel witnesses to attend. A witness can be compelled to attend not upon an ordinary 695 subpoena, but upon a document to be signed by any one member of the tribunal …".—[OFFICIAL REPORT, 7th March, 1921; Vol. 139, c. 190–191.]Mr. Rawlinson tried to make as strong an indictment of the Bill as he could.
The next question was that of contempt. When this was debated in another place, Lord Muir-Mackenzie, that ghostly gentleman, said:I see that the noble and learned Lord, Lord Shandon, has an Amendment down with regard to this question of contempt. I would say, if the course which he suggests commends itself to the noble and learned Lord on the Woolsack, that in point of technical form it is right; but I confess to thinking that your Lordships might have some feeling that it ought not to be necessary for either House, or a Tribunal appointed by either House, to have to seek assistance from the Courts, and that it would be better to lay down in the Bill, not in the form in which it appears now, what the limits of those powers should be. It is quite easy to put in an Amendment which would limit the power"—I doubt this—of committing for contempt to such things as the production of documents and the enforcement of the attendance of witnesses, without running the general danger, which appears on the face of the Bill, of giving power to that unknown Tribunal to proceed against people by way of contempt and to commit them to prison."—[OFFICIAL REPORT, House of Lords, 22nd March, 1921; Vol. 44, c. 754.]I have quoted those passages because it is remarkable that in this short debate in both Houses that was one of the few occasions on which these sort of matters were discussed. The whole Bill was passed through Parliament in the most unseemly hurry. It is true that in the House of Lords the great figure of Lord Birkenhead may have made the other peers tremble, and not question too much what he said, but there was no such fear on the part of the Members of the House of Commons. It is therefore surprising that so little thought was given to a Bill which was to have such important repercussions on the future of all tribunals.
Not only was this Bill ill-discussed and rushed through the House; it was not even wanted. Even the then AttorneyGeneral—Sir Gordan Hewart—said:We did not want this Bill; we did not ask for this Bill."—[OFFICIAL REPORT, 24th March, 1921; Vol. 139, c. 2818.]That was the Attorney-General, who was rushing the Bill through for the Government. In fact, the Opposition had asked for the Bill. A member of the Opposi- 696 tion had asked for a tribunal to be set up to inquire into the munitions scandal, but he did not ask that a Bill should be introduced which would govern the sittings of tribunals for all time. There were other statements from Members on both sides of the House to the effect that this was an unwanted Bill, especially in the form in which it was presented.
I ask the Ministers concerned whether they will confer in order to see whether they cannot repeal—
§ Mr. Speaker
I have listened with great interest to what the hon. Member has been saying, and I have not yet been able to observe that it does not either invite repeal or amending legislation. Either topic would be out of order in this debate.
§ Mr. H. Lever
On a point of order, would it not be in order, Mr. Speaker, for hon. Members to invite the Government never to operate the Act of 1921, as opposed to inviting them to consider its repeal?
§ Mr. Speaker
I dare say that when we reach it the latter part of the hon. Member's suggestion will be as much out of order as it is now. At the moment I prefer not to rule on any hypothetical situation. I merely rule out of order that which I have ruled out of order.
§ Mr. Fell
I pass to my next point, and here I hope that I shall not be out of order. The Lord Chief Justice recently said, in connection with this case:The remedy of the Press, and I think they have a remedy"—697 and I thought that that was a very significant remark—is to get Parliament to grant them special privileges which they have already granted in other respects. That is the best course.I should have thought that that bears out the suggestion that the House and the Government ought to be thinking about the whole effect of the Rent Tribunals Act—
§ Mr. Speaker
I assume that that was a verbal slip on the part of the hon. Member. He referred to the Rent Tribunals Act. I do not wish to be frivolous about the matter, but his present suggestion would involve legislation. I do not see how it could be otherwise. In that case we are back in the same difficulty.
§ Mr. Fell
I am, of course, Mr. Speaker, in considerable difficulty because I am trying to put a serious argument for an alteration in the way the House conducts its affairs. I am trying to put that in suggestions which might lead the Government to believe that the only way they can carry them out would be by legislation. I am studiously trying to avoid the suggestion that there should be legislation in order to carry out what, I hope, will be the will of the Government.
I find myself somewhat circumscribed by getting into trouble with your Rulings Mr. Speaker, but may I talk about the need for a free Press? It seems to me that we are really at the beginning of democracy. Democracy is very youthful and has not had a chance to grow up. What is certainly true is that the contempt of court procedure was initiated a very long time before this country had grown up to its present form of democracy and a long time before we had a wide Press in this country at all.
This is one of the reasons I put a Motion on the Order Paper, which I dare not dare read out in view of your Ruling, Mr. Speaker. We have the situation where these two journalists were sent to prison for contempt of a tribunal or contempt of court. I claim that there is a difference between the contempt of journalists in the manner in which they commit it and normal contempt of court, which was initiated in this country some hundreds of years ago. There are those who say, "Well, the Press deserve what they get on occasion, because, after all, they are not purer than driven snow". But then democracy is 698 not perfect and never will be. The moment we take the step of forcing journalists to give sources of information, to break their confidence with their sources of information, we destroy the freedom of the Press in Britain. [HON. MEMBERS: "Rubbish."] Someone challenges me by saying "Rubbish". Let us look at this for a moment. From where is the Press to get its information once all sources are frightened that they may be ratted on at some future date? Obviously, the sources will dry up and the whole character of our free Press will change. Some hon. Members want that. Some hon. Members may think it would be a good thing if the Press were thoroughly circumscribed and were not able to get hold of all sorts of information. I believe that it would be a tragic thing for the country. There are many occasions when the Press has the effect of dampening down the enthusiasm of those who would enforce rigidity in this country and those who would build up a stronger bureaucracy.
§ Mr. George Wigg (Dudley)
Obviously the hon. Member for Yarmouth (Mr. Fell) is deeply stirred by his own words. Would he be good enough to tell the House at what point he became converted? I read with interest the debate on 14th November when I tried—but was prevented by your Ruling, Mr. Speaker—to amend the original Motion setting up the Tribunal. With other hon. Members I forced a debate, against some opposition from both Front Benches. But I do not remember hearing the hon. Member join in that protest.
§ Mr. Fell
On many occasions I have tried to speak in this House. But one is not always called, nor can every hon. Member expect to be called. I cannot remember what I was doing on that occasion. Naturally, the hon. Member remembers all about it, because he spoke in that debate. I did not, and no doubt there was a good reason.
§ Mr. Sydney Silverman (Nelson and Colne)
Does the hon. Gentleman realise that this whole difficulty arises out of the setting up of a tribunal which is, by Statute, exempt from applying the rules of evidence, and that in the ordinary case no journalist, nor anyone else, would ever be allowed to give evidence about who told him what in the absence of the accused person? The whole trouble does 699 not arise out of any privilege of journalists but out of the abnormal situation created by the Tribunal.
§ Mr. Fell
Of course I realise that, and that is why, if the hon. Gentleman will recall, earlier I got into trouble with Mr. Speaker because I was trying to raise the matter by suggesting that new legislation was needed.
I do not wish to get out of order or to keep the House for more than a moment or so longer. But I feel very strongly that there is a case for looking at the question of contempt, as far as it affects journalists, in a new light, and recognising that the Press depends for its freedom upon its ability to respect sources of information. The moment that confidence is broken the freedom of the Press of this country is finished. We have to come up to date about some of these things and rethink our approach to these problems.
My appeal is that the Government will think very deeply about the effects which have resulted so far from this one tribunal, let alone what may be the result of future tribunals.
§ 9.47 p.m.
§ Mr. Eric Lubbock (Orpington)
I feel a great deal of sympathy for the hon. Member for Yarmouth (Mr. Fell). To me, it appears difficult to divorce the question under discussion from the issues which the hon. Gentleman started to raise until he was proscribed by the rules of order. One could go even wider than did the hon. Gentleman. This case seems to me part of a general pattern to which The Times drew attention in a leading article on 18th March, under the heading "it is happening here". This case is part of the enfringement of the fundamental liberties of the British people, which I do not think should be treated lightly by this House.
How did this arise? It puzzles me, because I am not a lawyer but merely a humble engineer. I find it difficult to understand why these journalists have gone to prison for refusing to divulge the source of their information when, in another case, a journalist who also refused to divulge his source of information is at present free. I am not suggesting that this is not strictly in accordance with the law; I am quite certain that 700 it is. I am merely saying that it is very difficult for the outsider to understand how this situation can arise.
I understand from my reading of the newspapers that in this third case the information that was given to that journalist was subsequently verified from another source. Therefore, it seems important to look at the allegations that were made by the two journalists who have gone to prison and to see whether the Tribunal had verified from another source the information which they gave. Mr. Foster said that Mr. Vassall had bought women's Clothing. That was subsequently verified by evidence given to the tribunal by Vassall himself during the public open session of the Tribunal. That I find very difficult to understand.
As to the case of Mr. Mulholland, I understand that evidence was given to the tribunal which was not disclosed to the public, but which had been received by the Treasury Solicitors and had been considered, which tallied with the information that was given by Mr. Mulholland. So in both these cases I cannot see that there is any difference from this third case I quoted where the journalist did not go to prison. I believe my impression of this situation tallies very much with that of the general public as a whole. I say again that the law is obviously right, but it is something which ordinary laymen find very difficult to understand.
§ Mr. Lubbock
The hon. Member for Nelson and Colne (Mr. S. Silverman) says, "It is not right". He is a lawyer and knows much more about it than I do. I am, naturally, assuming, because of what everyone who is more expert in the law than I am has said, that it is so.
Before coming into the Chamber I was looking up a very interesting parallel to the case we are considering. That is the amendment made to the Official Secrets Act in 1939. I looked up the debate which took place on that occasion in another place, when the Lord Chancellor, Lord Maughan, said, when talking about the Section of the Official Secrets Act, 1920, which was then being repealed:It is in fact the only provision in English criminal law which subjects to a penalty persons who refuse to give information to the police.701 It may well be contended that this is not a parallel case with the one we are discussing, but I think that it arises from the same principle which was subsequently enunciated in the same debate by the late Lord Samuel, when he said:The power to demand from journalists who have published something which is inconvenient, the source of their information, is a most dangerous and indeed an improper power."—[OFFICIAL REPORT, House of Lords, 23rd February, 1939; Vol. 111 cc. 918, 924.]If that were true in regard to the amendment of the Official Secrets Act, 1920, the same principle must apply to the case we are discussing now. This is the basis on which I make my appeal that these two journalists should be released.
I think that everyone in the House, whatever view he takes of this case, is anxious about the principles of liberty which we hold so dear—not only everyone here, but in the country as a whole. There is great dissatisfaction with the operation of these tribunals of inquiry. I am sure we shall not rest quiet on that until we have gone into the whole question of the operation of these tribunals. Meanwhile, we should demand that Mr. Foster and Mr. Mulholland should be released.
§ 9.54 p.m.
§ Mr. Leslie Hale (Oldham, West)
I do not think that this case has very much to do with freedom of the Press. I do not agree—I do not fully agree, at any rate—with some of the observations made about this, or the suggestion that a journalist, if he likes, can make up a story and refuse to supply any source for it and claim that that is a question of freedom of the Press.
On the other hand, the more I hear this matter discussed the more I feel doubts and the more unhappy I am about the whole thing. When one looks at the particular example we are discussing tonight, the whole thing seems a deplorable mismanagement and an astonishing trial.
A fortnight or so ago we were celebrating the bicentenary of William Cobbett, the first Member for Oldham. He had many other claims to fame. In 1803, when he was publishing one of his journals, he received a series of anonymous letters from Ireland signed "Juverna", which contained serious allegations against the Government of the 702 day. It is fair to say that the Castlereagh Government had a lot of serious allegations made against them constantly and were rather inured to that sort of thing. Cobbett published them. So far as we know, he published them—one cannot say in good faith, because much of it was general and rather abusive criticism, but he published them at least feeling that the motive of the letters was a decent one.
Cobbett had already had his troubles in the courts. He had spent some time in prison. Those who care to go to the exhibition at Farnham can see letters written by him in prison to his son. Cobbett was prosecuted civilly and criminally. He was sued for damages civilly, and £500 damages was awarded, a fairly substantial sum in those days. He was prosecuted criminally for a criminal libel by Plunket. He was finally convicted.
In the end, the great William Cobbett handed over the letters, which were anonymous and were signed only with a nom de plume, but the Government had little difficulty in tracing the author, because they had, in accordance with their promises at the time of the Union, created six worthless barristers as High Court judges in Ireland. They only had to run through the six and identify the handwriting. All of the six were known to be corrupt, and their conduct had been the subject of debate in the House of Commons. They finally identified Mr. Justice Johnson as the writer of the manuscripts and his motive for writing, because he had not received judicial preferment and promotion after the first appointment which was made in reward for his vote on the Union.
Then they tried to get him over here. He was defended by Curran, who took proceedings to protect him in all three courts—or was it all four courts?—simultaneously, losing generally by a majority of one. The unhappy and rather wretched Mr. Justice Johnson was finally brought to trial in England, but he was never brought to conviction. On promising to be a good lad, he was given a pension equal to his salary and sent over to France. That was before the days of General de Gaulle. They would probably have sent him somewhere else today.
The relevance and importance of this matter is that in 1803, whatever Cobbett's 703 motives—and there were some reasonable motives about it; he had been rather deluded by the correspondence—he was heavily punished. The great Cobbett's reputation suffered lamentably, because he had broken what even then was recognised as an obligation of honour.
Professional obligations of honour often conflict with the public interest. I belong to a profession which has many rules and many forms of eitquette. When I was a young solicitor of 21, I always used to say that most of them were designed to prevent me from getting any business. Many people would argue that the consideration of professional rules by professional bodies, in the main, cannot always take the fullest account of the public interest. No one disputes for a moment that it is an established code of the journalist's profession that he shall not disclose the source of information given to him privately or secretly.
§ Mr. Loughlin
I cannot understand this reiteration of this alleged code of journalists, since not one single journalist refused to give any information which was asked of him in the Budget leak Tribunal. They all disclosed sources.
§ Mr. Hale
I beg my hon. Friend's pardon. I think that he is talking about an old alleged Budget leak, the Thomas one. I was thinking of a more recent one, when I was a member of the Select Committee in a case which involved the then Chancellor of the Exchequer. I take it that my hon. Friend must be referring to somewhat ancient history and a case which occurred in, at a guess, 1933 or 1934; in which case I cannot quite remember the facts. I cannot refresh my memory standing on my feet, although I have some doubts about that matter.
704 I believe that the allegations of leakage were to the effect that a Minister of the Crown, the late Mr. Thomas, had made a communication to a Conservative hon. Member. There was, in fact, no suggestion of any leakage to the Press or the question of information having been given to the Press.
§ Sir Lionel Heald (Chertsey)
I think that his hon. Friend was actually referring to the recent Budget leak inquiry, the Bank Rate inquiry, when the present editor of The Times and others disclosed their sources without raising any kind of objection.
§ Mr. Hale
That is simply not true, although I do not, in saying that, mean any discourtesy to the right hon. and learned Gentleman. I would never do that. This is what I was going to say I understood to be the circumstances, although I thought I saw the Attorney-General nod to indicate that I was on the wrong Budget leak. I was a member of the Select Committee. It was not a special inquiry and this is what precisely happened. At about 4 p.m. on the afternoon the then Chancellor of the Exchequer announced in what was, in fact, not a Budget statement but an amending Budget—a secondary, subsidiary Budget —a few proposals. About half an hour after making his announcement it was observed that the late news column of the Star had a fairly full report of those proposals. There was then a great deal of argument as to whether or not anyone had made any statements to the Press.
A Private Notice Question was tabled for the following day and the matter was that morning brought to the notice of the late Hugh Dalton who, I must say, behaved in a most honourable way, for he at once said, "Yes, I did. I had a word with John Carve], but I never dreamt of this. I just passed a hint as I was going into the Chamber." And after that there was no obligation of secrecy upon Carvel I am speaking from the clear memory of the evidence which I heard.
§ The Attorney-General (Sir John Hobson)
I think that my right hon. and learned Friend the Member for Chertsey (Sir L. Heald) and the hon. Member for Gloucestershire, West (Mr. Loughlin) were referring to the 1957 705 Bank Rate leakage Tribunal presided over by the Lord Chief Justice, at which Mr. Bareau, editor of the Economist, and one other editor were asked for their sources. Both asked, "Do I have to answer?" and being told that they had to, they did, in fact, disclose.
§ Mr. Hale
That just goes to show the perspicacity of the Attorney-General. I did not know that my hon. Friend meant that Budget leak when he referred to the Bank Rate. Had I known that I could have confined myself to the observations I originally intended to make; that is, that the presence of scabs in a union does not invalidate the value of trade unionism.
This is so, but I have the gravest doubts when I consider the sort of confidences that sometimes pass in this House. But so long as they do pass it is not for the individual Lobby correspondent to be the judge of the propriety of the rules of his profession. Everyone understands that, whether or not he signs anything, when a Lobby correspondent comes to this House he does so with sc7upulous integrity, understanding that he should not reveal matters which come to him and which are not for publication; that he should not reveal the sources of matters which may have been given to him for publication under a seal of privacy about the source of the information. That may be a good thing or a bad thing. As I said in opening, I do not think that this is really a question of the freedom of the Press at all, but a question of the rules of an honourable profession—but they are important rules.
Let me put quite bluntly one of the main points about this matter. There is no more sacred relation of secrecy than that of the Catholic priest in the confessional. Everyone respects that relation. If there is one thing more than any other that inspires admiration for the Catholic Church it is the secrecy that is observed. It is inconceivable that if a Catholic priest were put in the witness box, and a question were addressed to him about the secrecy of the confessional—the right hon. and learned Member for Chertsey (Sir L. Heald) shakes his head. I am not sure that there is anything in it, but what does he mean? And my hon. Friend the Member for Gloucestershire. West 706 says that it is not the same thing. I did not say that it was the same thing. I am quoting an example, and an example is never the same thing.
The law gives no protection to a Catholic priest. Indeed, in some ways, the law does not recognise a Catholic priest. There were days just before the incident I quoted when, as sport, Catholic priests were hunted with dogs in Ireland. Today, the Catholic priest is a respected member of the community, ministering to a very large section of people who hold these beliefs as saored things, and the secrecy of the confessional is such that I do not believe that a member of any faith, or one of no faith, would suggest that the courts should make a priest reveal what is said to him in the confessional—
§ Mr. Wigg
I listened to the arguments that took place at the Tribunal on this point. As my hon. Friend knows, I am not a lawyer, but one of the things that impressed me was the case of a Catholic priest who was asked questions about someone stealing a watch, and the court required him to tell the truth. It seems to me that my hon. Friend cannot have taken that precedent into account, if my recollection is right.
§ Mr. Hale
Such is the respect of my hon. Friend the Member for Dudley (Mr. Wigg) for authority that he always assumes that the courts are speaking with wisdom. No court will ask a Catholic priest to violate the secrecy of the confessional. The question has arisen time after time. I have spent many years on this subject, and have been rushing round the Library today trying to find reliable authorities—I found only three books of my own—
§ Mr. Wigg
Perhaps my hon. Friend would help me, because I searched my conscience, for I opposed the setting up of the Tribunal and listened to its proceedings. My hon. Friend has said that he was a member of the Select Committee which considered the case of Mr. Dalton. I advocated that the case should have gone to a tribunal and not to a Select Committee. If my hon. Friend had been a member of such a Select Committee, and had asked the question which the Vassall Tribunal asked, and the witness had refused to answer, what would he have done?
§ Mr. Hale
I say "And then what?"—and then nothing. I say that our law of contempt of court is a disgrace, and I am on record in one of my books as saying that the judges have extended that law until now it is a method of enforcing all sorts of piffling orders. We announced that the House of Commons had abolished imprisonment for debt, but people are still put into prison for debts, whether or not they can pay, because of non-compliance with orders made by county courts. People are still being sent to prison in surprisingly large numbers, and it is time that this matter was fully considered.
I say that the law ought to consider itself impotent in a great many directions. At the moment the law demands the right to ask a medical man, "Did this man consult you because he has venereal disease?" and use that as evidence to enable his wife to get a divorce. How far does the House say that should go? This House in recent years has passed laws to force a bank manager to disclose the bank book of his customer. How much farther are we going along that road? This is the road that imperils freedom, and it is the House that imperils freedom.
The freedom of the Press is a question of the Press being free to criticise the Executive. That is the vital thing, and it is as well that the House should remember that any limitation of the freedom of the Press—and I am in favour of a good many—always has the inherent danger that once Parliament starts to legislate for the Press it may be using an Act of Parliament to suppress freedom of criticism of the Executive.
Everybody knows that, whether one is being governed by Dr. Nkrumah or Mr. Huey Long, running independent news- 708 papers is a perilous sort of process and that we ought to think very carefully before we put limitations on the Press. I have permitted myself to be diverted by the cursory information from hon. Members on both sides of the House when I wanted to come to the important case. I quote that of Mr. Clough because it has a certain significance which some of the others do not have. This was a special case in which finally the evidence was forthcoming and the sentence was not served.
It is reported in the All England Law Reports under the title "Attorney-General versus Clough". I have gone on record previously as suggesting that a more appropriate title might have been "Ex parte Hobson versus Hobson, Hobson intervening, in re Clough". I am on record as having raised more than once the position of the Attorney-General in this matter, and I certainly do not criticise him personally. I have great respect for him. The hon. and learned Gentleman is the adviser of Her Majesty's Government and may well have been consulted as to whether the powers of the Special Tribunals Act should be used.
I do not say that he was, but the hon. and learned Gentleman could well have been consulted about the membership of the Vassall Tribunal, and earlier today we said that once a Government start to nominate the judges in advance they sap public confidence a little, however excellent the nominations. I think that the Tribunal has behaved very well and that Lord Radcliffe comes out of it with great distinction. When I put down a Bill to repeal the Special Tribunals Act I did it while the Tribunal was still sitting so that it would not be taken as discussing its Report. I set the Bill down for a time after the Tribunal was expected to have reported so that the matter would not be sub judice, and I withdrew it when it was found that the Tribunal would take longer than expected to report.
I do not suppose that the House remembers any oration of mine, but I spoke on the Bank Rate Tribunal and on the Belcher Tribunal and expressed similar sentiments when the House decided to set up a special tribunal to determine whether the police had kicked a lad's bottom north of the Caledonian Canal. I said in the circumstances in which the Motion was before the House 709 that the policemen had been wantonly attacked and had no opportunity of defending themselves, and that perhaps in that trivial case we might use the procedure but I hoped that it would never be used again, and I blame the Government for not having done anything about it.
The Attorney-General can advise on the tribunal. He then appears as counsel —and, after all, some of the allegations made were about the Government. He had at least, in a sense, a certain guilt by association if nothing more, if the people concerned were guilty. He cross-examines the witnesses and decides whether or not to ask the vital question. He then raises with the court the question of whether proceedings should be taken, and I am bound to say that I found it difficult to understand—and I make no allegations here; one of the people involved is a personal friend of mine—who were the sheep, who were the goats, why some were involved and some were not and what was the precise relevance or great importance of one and not the other.
Then the Attorney-General attends before the court and prosecutes the offender for failing to answer the question which he put to him, and then the Attorney-General may well decide to appeal to a higher court if a conviction or an order is not made. It seems to me a not uncircumscribed rule, at any rate.
The Vassall Tribunal reported the matter to the Lord Chief Justice, who listened to it sympathetically. Some facts came out which were extremely relevant and important, and I confess that, although I have been a practising lawyer for some time, I did not know them. The first is that the courts have already recognised—and the Lord Chief Justice is on record as having said that he does not think it will ever be abrogated by the courts—that in interlocutory proceedings one does not ask the journalist to give his source of information. In talking about interlocutory proceedings, I refer mainly to the discovery of documents and to the notice in which one is entitled in civil proceedings to say, "We want notice of all the documents that you propose to produce at the trial". It is perfectly proper that one should have the evidence and the facts which will be relied on. The Lord Chief Justice recognised that in interlocutory proceedings it is no 710 longer the practice to order a journalist to produce a document disclosing a source of information, and that has now become an established principle.
The second important rule was decided in the case of Bardell v. Pickwick, and that is that what the soldier said is not evidence. Hearsay evidence is not normally a part of our procedure at all. Of course, there are exceptions, but no one has ever said that this is the sort of exception which has any particular validity. As my hon. Friend the Member for Nelson and Collie (Mr. S. Silverman) said, while one can always quote academic examples in any legal proceedings of unusual circumstances which produce new rules or bring unusual circumstances into play, this sort of question could never have been put, in the main, to a journalist in any of our courts.
§ Mr. H. Lever
Why does my hon. Friend say that what someone tells a witness is hearsay? Why does he say that one cannot ask a witness in court, "Who told you that so-and-so was wearing a red tie?" Is my hon. Friend seriously saying that to ask a witness who told hint a particular thing or who gave him particular information involves the question of hearsay?
§ Mr. Deputy-Speaker (Sir William Anstruther-Gray)
Order. I think that it would be better if the hon. Member for Oldham, West (Mr. Hale) were to address his remarks to the Chair.
§ Mr. Hale
I always respect the Chair and your Rulings, Mr. Deputy-Speaker, but I have never been in more fervent agreement with a Ruling before. I shall have to stop giving way.
What happened in this case was that the journalist said that the information did come from a Whitehall source. The inference was—and the fact came out 711 later—that it had come from someone who told him that he understood—he did not know—
§ Mr. Hale
My hon. Friend and I will have to compare notes of our practical experience To the best of my understanding, knowledge and belief, that is hearsay and could not be given. One could not call a witness to say—and this is the test—"I understood from the general line of the thing and gave a statement in confidence to suggest that there was some connection between the arrival of the Russian trawlers and the Grand Fleet". Of course it is hearsay and it is also irrelevant. It is not something to be excluded.
At least, the Lord Chief Justice started by saying that everyone sympathised with the situation in which Mr. Clough was found. I have only the words of the judgment with me, but I noted down a quotation or two from the report of The Times. I hope that the House will permit me to say that I am speaking partly because of a telegram I received this morning from the National Union of Journalists in Oldham, for whom I have a very great respect. They are so kind to me generally that had they known I was speaking in Colne Valley at 10 o'clock last night and motoring back through the night, I do not believe that they would have asked me to speak. Indeed they might have been wiser not to do so.
The Lord Chief Justice certainly said in so many words, "This is a very unfortunate situation. I appreciate that he is a reputable man and is obeying what he believes to be the rules of his profession". And, of course, they are. "He does not lay them down. These are really the obligations upon which he accepts his position."
I am not saying that all journalists are models of virtue. Some of them behave in the most scandalous way and there are gross and wicked invasions of privacy. But all of us know that there are many journalists and most of them 712 whom we know associated with this place, if not all of them, are men of scrupulous integrity. They behave with scrupulous integrity and serve a noble profession with dignity, ability and zeal.
The position of the correspondent of The Times is a position of high learning and great dignity. I can well understand sometimes that he might feel that a general reference to some journals is a little derogating from his high status. The Times correspondents traditionally for 150 years have had consultations with the Prime Minister and have had information from the Government. There was a time when Lord Chancellors used to write the leading articles criticising their colleagues. It is very difficult for the editor of The Times to come forward to a tribunal and say, "I got my information from Lord Brougham", who, in fact, wrote every word of it.
The Lord Chief Justice disclosed that in interlocutory proceedings one cannot ask this question or for these documents to be produced. He then went a shade further and said that a search of all the authorities disclosed that there was no authority on the subject in this country. The point has been mentioned before and discussed in various ways. Of course, there is a whole list of cases, but the Lord Chief Justice himself said that there was really no precedent for a decision on this point in this country.
He then said that there was one in Australia, made by a very strong court. It was a case in which a special tribunal in Australia was considering whether bribes were being accepted by Members of Parliament. The only method was to demand that the journalists who published those allegations should disclose the names of the persons, presumably Members of Parliament themselves, who had given the information. The journalists refused.
We now come to the point when I can conveniently and chronologically answer the question, reiterated in all corners of the House, "So what?"
The strange thing is that the Lord Chief Justice, while expressing the utmost confidence in the Australian court, its ability, judgment and statement of the law, and describing it as a very strong court which he felt quite able to respect, does not seem to have paid much attention to its decision on the penalty. All 713 that happened in that case was that the journalist was fined £15 or £25—I have forgotten the exact sum—which was presumably paid by the proprietor, and that was the end of the affair. That is the answer to the question, "So what?". I do not know why the Lord Chief Justice, despite all the respect he paid to this Australian court, did not pay more regard to the punishment it imposed.
The object of punishment is the relevant question of this debate. Why are these two men being punished? What hope is there in punishing them unless it be to serve some curious, remote nineteenth century figment of the dignity of the courts which cannot have their will resisted for a moment by any personal rules or any personal obstinacy?
What does this punishment secure? We may get to know more about penal reform when they have served their sentence. We may be told what is happening in our prisons. We may get more knowledgeable articles about prisons, although the Guardian has been doing pretty well in the past week or two. I can think of no other purpose. Does the Attorney-General say that the punishment means that next time such a situation arises before a tribunal journalists will give information and earn the contempt of their fellows?
If the Government are trying to punish anyone who operates rules, then surely the proprietors of these newspapers are the persons who should be charged with doing something prejudicial to the security of the State—if anyone takes that view, as the Lord Chief Justice rather surprisingly did. According to The Times report, Mr. Clough's counsel, Mr. Cusack, said that Mr. Clough's attitude was that whatever advice he received from any court, he would not disclose the source of his information. The Lord Chief Justice's answer to this was:How far can I say this is a purely honest man to whom I ought to give just a nominal punishment to show he has committed an offence?Later, in passing sentence, he said that if the Tribunal were to get the requisite information from any other source, or the respondent relented, a review of the sentence would be justified—"re-consideration" is the word he used. If the respondent, within a period of 10 days, revealed the source of his information to the Tribunal the writ would not be enforced.
714 The Attorney-General has properly argued that this was a single offence which must be dealt with as a single offence. Now we get a new conception in our criminal justice. Apparently, we can say to a journalist, "We know that you are doing what you think to be honourable, but it is a breach of the law. If you do what you think is honourable we shall punish you." That sort of pronouncement was put by Pontius Pilate at a very much more sacred, more vital trial— "Will you confess? Will you withdraw? Will you say that you did not mean it?"
It seems to me that it is not the business of a court of law to say to a man, "You have committed an offence with the best motive in the world, but if you now behave like a scab 'we will let you off more lightly". That is what the attitude of the Government means.
But this matter went on to a much more remarkable and a much more interesting phase. When Mr. Clough said that he thought that to reveal his sources would be dishonourable, the Lord Chief Justice made the following observation:How can you say that there is any dishonour on you if you do what is your duty. in the ordinary way as a citizen, to put the interests of the State above everything?It is strange that, setting up a Tribunal because we had a Communist somewhere, we find him behind the ermine of the Lord Chief Justice. It is strange that the first Communist statement in this country since the days of Jeffreys or Scroggs should come from the Lord Chief Justice in a case like this. It is not perhaps remarkable, because I value the law, its traditions and its rules, and once we throw them over, as we do when we appoint these bastard tribunals, we present ourselves with the dilemma that we have to find new principles and new definitions on the spur of the moment.
How could one think it dishonourable not to put the State above every other principle, above everything? This was the question that was asked of Cardinal Mindszenty. He said, "There are two things that I put first. One is my God, and the other is His Holiness the Pope". Who will say he was wrong? This is the question that has been put through the ages. It was put to John Hampden. It has been put all the time. We start off with In re Hobson, Hobson v. Hobson, Hobson intervening, and we finish up with 715 the Lord Chief Justice of England citing the obiter dicta of Stalin, J. v. Hitler, J. I read it with bitter regret. It was said on the first day of the proceedings. I think I am right in saying that something similar was said in a later trial—"Your duty is to put the interests of the State above everything". The duty of a man is to put his conscience above everything. It may be that the State will find it necessary to impose some punishment upon a man for doing so if his conscience is such that it takes him into these curious and diverse paths. But that is his duty.
Does anyone doubt that these men are doing what they think it right to do? It may be that they are doing what their colleagues think it right for them to do. There is no doubt that they have had consultations. No doubt, their action will be supported by the Press to which they belong, and I think it is right that it should. There is nothing improper about that. They are doing what the generality of the members of this honourable profession think it right and proper to do in the circumstances. I agree with the argument that it would be extremely dangerous to impugn this rule without a great deal of careful thought and consideration.
The rule as stated is rather indefensible. It is almost impossible that the courts could say that a journalist should have absolute security whether he has faked the story or not. Certainly I would not put the journalist in the priority consideration before a Catholic priest or any other priest who takes the view that a confessional, voluntary or otherwise, is absolutely sanctified and sacramental. But having said that, what purpose is it now suggested is served by the imposition of such a punishment upon these two honourable men? In the Clough case the information came forward. There is no suggestion that a lot of it was made up. In the Clough case the evidence established the fact that Mr. Clough had really got the information from a distinguished civil servant, and he might well have thought that he would ruin the career of that civil servant had he given the information. That is the conduct of an honourable man.
716 I gather that no one has seriously suggested—and in the Mulholland case it has been virtually established—that whatever was said was not said on clear authority. There is no possible reason to impugn the integrity of the two men whose cases we are discussing tonight. If that is so, what possible useful purpose do these sentences serve?
We have had a campaign by all the people on penal reform who say that a sentence of three months is a minor brutality of a wholly useless kind which clutters up prisons with people who should never be there, which provides no room for any treatment, and is the sort of sentence which should never be imposed. Day after day we see the courts taking very lenient views of some serious crime whenever they can, and I am glad to see it. What sense can there be in sending an honourable man to a penal prison to serve in convict's uniform for six months because he has honourably carried out the duties of his profession and not ratted on a colleague whose privacy he thinks he ought to protect?
The law has been laid down, and it stands until it is altered. It has been laid down by the highest tribunal in the land on appeal, and the House of Lords has confirmed it. That law stands. What use, therefore, to perpetuate this vicious little sentence, this unnecessary sentence, this sentence which can serve no useful purpose unless it is felt that it is in defence of someone's face?
I urge the right hon. Gentleman to reconsider this matter. It may be innappropriate to say that honour is satisfied, but I urge the right hon. Gentleman to say that he has come to the conclusion that, judgment having been given, and the law having been declared with the certitude that attaches to a decision of the highest tribunal in the land, no possible useful purpose would be served by keeping these men in confinement for a moment longer, that no one's interests would suffer, that good relations would be helped and preserved, and a generous and understanding attitude taken if the rest of these sentences were remitted forthwith.
§ 10.37 p.m.
§ Mr. J. A. Leavey (Heywood and Roy-ton)
My lion. Friend the Member for Gravesend (Mr. Kirk), in opening the debate, was at pains to suggest to the House that he felt that he should confine his case to considering the question of the remission of the sentences being served by the two journalists. The hon. and learned Member for Ipswich (Mr. D. Foot) echoed what my hon. Friend said in general terms. He was followed by my hon. Friend the Member for Yarmouth (Mr. Fell), and then we heard the speech of the hon. Member for Oldham, West (Mr. Hale). I hope that I need not apologise to the House if I do not seek to follow the hon. Member for Oldham, West, nor indeed my hon. Friend the Member for Yarmouth, for if I followed him accurately I suspect that I should be largely out of order.
I should like to limit myself to the narrow point on which my hon. Friend opened the debate. As the burden of the view expressed so far would seem to be that the two men in question should have their sentences remitted, I feel that it would be inappropriate if we concluded this debate without another point of view being heard. I am conscious that anyone who takes a contrary view throws himself open to the criticism that he is insensitive, that he is vindictive, and that he is unconscious of what must be endured by these two men in these circumstances. I am aware of that danger, but I do not think that that releases me from the responsibility of expressing my point of view.
I want to ask myself and the House the question which I believe is being asked by the general public. Would the cause of freedom be better served if this unique release from responsibility were granted to journalists? Would the freedom of individuals, the freedom of the Press, the freedom which we tend to take for granted, be damaged if we continued to take the view which has been represented by the sentences upon these two men?
I do not see that this has affected the freedoms to which I have referred and the immensely valuable freedom of the Press. I should have thought that we had long ago accepted that while there 718 are certain disagreeable features which come with the freedom which the Press enjoys, and which we have for so long taken for granted, it is a hundred times better than the other thing. Over many centuries we have come to accept that the Press, in criticising everything and everybody and bringing attention to a wide range of subjects which would otherwise pass unnoticed, is performing a service which, overall, brings great benefits to society. What has disturbed me very much in the last few weeks, however, is the avalanche of propaganda which has suggested that by this decision some fundamental damage has been done to those freedoms.
At Question Time recently my hon. and learned Friend pointed out that there had been six or seven such cases in the last 80 years. It seems to me that, however one looks at this issue, the occasions when a man may be required to disclose the sources of his information will be so rare and so remote as not materially to affect in any way the general freedom which the Press must enjoy, and which undoubtedly is reflected in the freedom which the public requires.
Surely, in the overwhelming majority of cases the source of information used by journalists never conies into question at all; it arises only in those unique cases where it is considered that it is necessary in the interests of the State that the source shall be disclosed—and the very fact that such wide interest has arisen concerning this case is wholly due to the rarity with which these circumstances arise.
I am sure that many of us who are not lawyers—and I am somewhat overawed by the presence of so many legal Members, both among my hon. Friends and among hon. Members opposite are asking whether it is right that journalists should have a special privilege in this sense. We cannot honestly confront this problem without also asking ourselves whether, on balance, the nation would be better served, the community would continue to be properly informed, and the rights of individuals would be better respected, by granting journalists this unique privilege or by withholding it from them.
719 There is another aspect, which again I hesitate to mention but which ought to be mentioned. Although it is the duty of journalists to make disclosures—and while it is in the interests of the community as a whole that there shall be disclosures—we must also recognise that journalists, no more and no less than other individuals, are not wholly and exclusively activated by a sense of duty. Therefore, in pleading a special case for journalists it is not right that their sense of duty to the community should be assumed to be greater than that exercised and felt by other people.
One reason, at least, why a journalist will not disclose the source of his information, is that, should he so do, that source will not be open to him again. Clearly, if an undertaking has been given not to do so, it is a breach of faith if the source is revealed, but this is understood, presumably, by the source and the journalist. The source requires the journalist to give an undertaking of secrecy only because the source is unwilling to become known. I should have thought it was an insecure structure to build a case on the principle, which I think is generally despised amongst ordinary people, of "All right, I would like you to publish this, but don't tell anybody I told you". I find it unacceptable that the Press, who rely upon disclosure and serve the community in an invaluable way in many cases by disclosure, should take up the position that all should be disclosed, that hole and corner methods should be despised, and that it is their job to ferret out what may be embarrassing to the Executive and so on, and that this applies to everything and everybody but not—exclusively not—to the source of their information.
If it is followed by a claim that this is done primarily out of a sense of duty, I find myself tempted to ask is there not also an element of self-interest? Is it not perhaps reasonable to suggest an element of hypocrisy when the claim of duty is somewhat over-stressed? I feel that in the course of the last week or two in which a great deal of consideration has been given to this issue, the self-interest element in this matter has been somewhat overlooked.
Therefore. I hope that when my hon. and learned Friend speaks he will take 720 the view that while it is clearly unpleasant that two men—in cold blood, so to speak—should be taken into custody, those two men were nevertheless guilty of contempt of court in special circumstances and that some sentence was at any rate appropriate. I feel that, however unpopular that point of view may be in the context of the discussion we have had this evening, it at least should be expressed.
§ 10.48 p.m.
§ Mr. George Wigg (Dudley)
I need not remind the House that I am not a lawyer. My approach to this problem is that of a plain man. I look upon this debate not as an academic exercise, but as a discussion of reality.
How did this Tribunal come to be set up? It goes back to events about two years ago. Following the Lonsdale trial and the conviction of that man and Miss Gee and Mr. Houghton, there was a debate in this House. Anyone who had taken the trouble, not to rely on the Press, but to go to the trial at the Old Bailey, could not but be conscious that it was crystal clear that there was someone else operating besides Mr. Houghton and Miss Gee. Mr. Lonsdale was a Russian officer, a man of great courage serving causes to which I am in opposition, but doing his duty.
§ Mr. H. Lever
I wonder whether it could be argued that he ought not to have gone to prison if he was a man of integrity, doing his duty, and obeying the code of his country.
§ Mr. Wigg
It may well be. I am just giving the account of how he struck me. There were two other people. There was evidence to show that the antiquarian bookshop in Ruislip was not operating for the sake of Mr. Houghton and Miss Gee. Any charge that I have against Lord Carrington, which I hope to deploy later, is not the charge that he knew. My charge against him is that he is incompetent because he did not know. I said to the House two years ago that in fact there was somebody operating in this situation.
Then we had all the rumour, all the stories, and the build-up about blondes and gigolos and all the sensationalism. Let us be clear about this. It did not start with the Press. We had pretty hefty 721 contributions from the Civil Lord of the Admiralty. Then the Tribunal was set up. The Motion was tabled overnight. My right hon. Friend the Member for Easington (Mr. Shinwell), my hon. Friend the Member for Coventry, East (Mr. Crossman) and I tried to amend the Motion. We wanted the House to be in a position to do its job. It cannot do its job unless it can establish the facts. It is clearly impossible for 630 people to establish the facts in such cases. Therefore, the House cannot do the job itself. It must authorise somebody else to do the job for it. I tabled an Amendment to the Motion which, for some reason which I do not understand, the Chair refused to accept, although it admitted that it was in order. I wanted a Select Committee meeting behind closed doors, doing the job the House had delegated it to do, asking all the questions which needed to be asked, and returning to the House with a report so that the House could take action.
We are not now dealing with any academic question. We are dealing with the security of the State, I think that my hon. Friend the Member for Oldham, West (Mr. Hale), who has now left us, was a little unfair in placing the emphasis he did on the words of the Lord Chief Justice. Of course, taken out of their context and taken away from the particular problems being dealt with, they are totalitarian in character. My hon. Friend said that the problem we are dealing with went back to Pilate. I would not go back as far as that. I am not an authority upon biblical studies, It is enough for me that I have read what went on in the seventeenth century between Cromwell and the King, that I have read with great interest the Putney debates, and that I have seen the arguments that Cromwell employed. He was an earnest, God-fearing man according to his lights. He was trying to establish the authority of the State against the powers of chaos. That is why I recognise that what my hon. Friend was advocating—I have a great affection for him—was basically the powers of anarchy.
Of course, I want to preserve those things, but not too many of them, because one could not run a tripe shop on the basis of my hon. Friend's philosophy. It just would not work. He is the avant-garde of ideas, and people like me come 722 along behind him and tidy it up so that the weak can be defended against the strong.
In this the beneficent State also has to have an established position. It must be able to do its job, otherwise there is anarchy. There is a partnership in the functioning of democracy between the House of Commons, on the one hand, and a free Press on the other. However, I hold the view that neither the House of Commons nor the Press can function satisfactorily unless there is present in both a respect for factual integrity, and that is my charge against a section of the Press.
I am told that I must defend the freedom of the Press—the freedom of the Press to buy Mr. Vassall's memoirs for £7,000'? Am I asked to defend that, because I will not? The Press has here gone over to sensationalism; not that sensationalism has not got its place, but it must have regard to the millions of people who at General Elections and the like have to take their democratic decisions on very limited evidence. The only source of evidence open to them is the B.B.C., the I.T.V., or the popular Press. What chance have they got if all three sources are polluted? In one's desire here to make a case for the Press, we must not forget the E.B.C. and the I.T.V. In the course of the defence debates I gave several instances of gross distortion of the facts by the B.B.C.
There was another case last Sunday night and I must confess that I am surprised that the Attorney-General has not done something about it. Four young soldiers had been arrested and charges had been preferred against them under the Army Act. Despite this, they were allowed to appear on television and to be questioned in such terms as for the interview to be denigratory of the Army and their regiments. Not a word was said about their records or the fact that they were waiting to face serious civil charges and charges under the Army Act.
I just do not understand this. It may be that this medium of communication has outgrown our Parliamentary institutions and even the law itself. Unless we can bring this into line, what will perish? It will not be a matter of the inconvenience of the rights of two journalists 723 but a question of the whole of democracy and the way of life in this country which all hon. Members have come to regard as the highest and most civilised form the world has seen. Democracy cannot possibly continue to operate unless some method can be found by which the ordinary man and woman can be given basic information which is free from deliberate pollution on the part of those who merely seek to make money out of it.
§ Mr. Leavey
I echo what the hon. Member is saying. Would he not go further and agree that this constitutes a veritable blind spot in our society? The Press and, to a certain extent, television—as he has pointed out—are quite right in performing the task of criticising everything and everyone. but the one thing one cannot get is effective criticism of the Press itself? This is a specific blind spot in our society because everything is open to criticism, except the Press—partly, I suppose, because dog will not eat dog and one newspaper will not criticise another. And, of course, we cannot get any effective criticism except in the newspapers.
§ Mr. Wigg
I believe that among the great body of journalists the overwhelming majority of them share the views I am expressing tonight. I believe that to be true, and in the last few days I have talked to a good many journalists about the Motion I have tabled which demands the end of adventurous sensationalism and the emergence of a Press which pays regard to factual integrity and the public good.
I do not want to make wholesale charges against the Press. I believe that it is a job for a Press Council, for the wisdom of both sides of the House and the members of that great profession to find the solution. I am trying to make it clear that the Press can exercise freedom over its criticism of the Executive, the Opposition and hon. Members—but it should do it in such a way that it should have regard to the public good.
What I am always concerned about is not the fault that lies in the other fellow, but the fault that lies in ourselves. Had the House of Commons done its job in relation to security from the time of the Lonsdale trial we should not have found it necessary to set up the Vassall Tribunal. When Mr. Lonsdale, Mr. Houghton and 724 Miss Gee were arrested the arrests were announced on the B.B.C. I am making no new charges, for I said it all two years ago. As I said then, it was as plain as a pikestaff that there was someone in the warrant office in Bow Street, or somewhere else, when the warrants were issued who tipped off the Press. The announcement was made and within a matter of hours a number of birds had flown. I asked for an inquiry at that time. There was not one. It was brushed off.
In the course of the later debate one asked questions, but nothing happened. So we come to the Tribunal itself, and what happened? Both Front Benches, after the most cursory debate, had agreed to the setting up of the Tribunal.
Again, I am grateful to my right hon. Friend the Member for Easington and to my hon. Friend the Member for Coventry, East. With their support, we at least forced a debate. We had a memo-able speech from the hon. Member for Ebbw Vale (Mr. M. Foot)—a moving speech. He did infinitely better than I could—I could only do some of his homework for him. He pointed out that in every major inquiry held under the Tribunals of Inquiry (Evidence) Act, 1921, there had been a major injustice because this was—as people had foreseen 40 years earlier—the Court of Star Chamber all over again. Charges were being made in such a way as to make injustice inevitable.
I went to the Vassall Tribunal with some prejudice, for I was in favour of a Select Committee as against this particular form of inquiry. I listened to the proceedings, and I must say that the fact that the Tribunal did the job it did was due to a peculiarly English set of circumstances. In my opinion, the instrument was a bad one, but Lord Radcliffe and his two colleagues are wise and good men. They leant over backwards in their treatment of men who were in a very difficult position. They treated those men as kindly as was possible—and, of course, it goes without saying that they treated them courteously. But they had a job to do. They were not there in order to bring the mailed fist of totalitarianism into it, but to do a job that the House of Commons had by unanimous Resolution authorised them to do. If hon. Members now grumble about the results, I ask them where they were on 14th November, when we were raising 725 our voices against this particular form of tribunal.
So far, so good. Here was a set of rumours that gained and gained in strength, consumed men's reputations—might, in fact, have destroyed them—and which here infringed on the security of the State. But are we quite sure that the same thing is not happening again? There is not an hon. Member in the House, nor a journalist in the Press Gallery, nor do I believe there is a person in the Public Gallery who, in the last few days has not heard rumour upon rumour involving a member of the Government Front Bench. The Press has got as near as it could—it has shown itself willing to wound but afraid to strike. This all comes about because of the Vassall Tribunal. In actual fact, these great Press lords, these men who control great instruments of public opinion and of power, do not have the guts to discharge the duty that they are now claiming for themselves.
That being the case, I rightly use the Privilege of the House of Commons—that is what it is given to me for—to ask the Home Secretary, who is the senior member of the Government on the Treasury Bench now, to go to the Dispatch Box—he knows that the rumour to which I refer relates to Miss Christine Keeler and Miss Davies and a shooting by a West Indian—and, on behalf of the Government, categorically deny the truth of these rumours. On the other hand, if there is anything in them, I urge him to ask the Prime Minister to do what was not done in the Vassall case—set up a Select Committee so that these things can be dissipated, and the honour of the Minister concerned freed from the imputations and innuendoes that are being spread at the present time.
It is no good for a democratic State that rumours of this kind should spread and be inflated, and go on. Everyone knows what I am referring to, but up to now nobody has brought the matter into the open. I believe that the Vassall Tribunal need never have been set up had the nettle been firmly grasped much earlier on. We have lost some time, and I plead with the Home Secretary to use that Dispatch Box to clear up all the mystery and speculation over this particular case.
§ 11.5 p.m.
§ Mr. R. H. S. Crossman (Coventry, East)
I should like to support very much what my hon. Friend the Member for Dudley (Mr. Wigg) has been saying about the Vassall Tribunal and also about the machinery of the 1921 Act. I can express my feeling on this in two principles. Firstly, I do not think that freedom of the Press in any way requires special protection for journalists to be passed by law. The more I have reflected on this the more I think, as a journalist, that no case has been made that as a result of the present case there is any evidence that extra protection for journalists is needed.
On the other hand, what has come out of the present case is that the freedom of everyone in the country is endangered by the 1921 Act. The issue was not that the men were journalists. It did not matter whether they were or not. Sometimes it is a Belcher and sometimes an Alfred Butt, but every single time that machinery is used it outrageously treats some innocent individual. It is not a question of journalists but of citizens hauled before a tribunal and being outrageously treated.
§ Mr. Crossman
These two men were outrageously treated, and they ought not to be in gaol. I do not blame the judges who put these men in gaol. The reason for the injustice is the nature of the Tribunal.
My hon. Friend the Member for Dudley said quite rightly that the Press in a society of our sort must have standards of integrity. But if our society is to work, the Executive must have standards of honesty too. The real problem is that we are faced with a Press corrupted by trivialities and an Executive corrupted by power into suppressing truth on a scale unrivalled in any country. Hon. Members have pointed out on the Estimates debates time after time that we are the least well-informed assembly in the world, so we have a systematic conspiracy by the Executive to deny and suppress the truth, and suppress it purely to its own political advantage if necessary, and on the other hand we have a tradition of journalism which has ceased to investigate 727 thoroughly. That is why the freedom of the country is in jeopardy.
What was wrong with the Tribunal was that it was very blatantly employed by the Government for their own political purposes. They introduced it quite blatantly because they wanted to cover up certain activities which they did not want to come into the open. To introduce a tribunal for semi-judicial proceedings purely for party political reasons is a gross infringement of liberty.
Now we seem to be movng into another situation of a similar kind. By this evening a Paris newspaper may have published in full the rumours which have run round this House and the country and are touched upon day by day in the Press. I agree with my hon. Friend the Member for Dudley that it would have been infinitely wiser if we had established a Select Committee 10 days ago to go into the rumours and that if we have a 1921 tribunal again we shall not have what we want.
§ Mr. R. T. Paget (Northampton)
My hon. Friend keeps on referring to rumours of this sort and rather deploring what the Press is doing. I should have thought that this was using a privileged occasion greatly to enlarge those rumours. What do the rumours amount to? They amount to the fact that a Minister is said to be acquainted with an extremely pretty girl. As far as I am concerned, I should have thought that that was a matter for congratulation rather than inquiry.
§ Mr. Crossman
That is a very interesting way of spreading a rumour, but I will continue my argument, which is about the effect of the Tribunal proceedings and of the Executive trying to suppress information. When there are dangerous things happening, we need a free Press to expose them. We are considering how to get a decent Press attitude and a decent Government attitude to news. We must admit that on neither side have we had much success in the last six months.
The danger to the freedom of the Press does not arise from the imprisonment of journalists nor does it arise only from the nature of the Tribunal. Above all it arises from the hostility to the Press which has been revealed in 728 letters written as a result of the Tribunal. The Press ought to take this hostility extremely seriously, because it reveals a resentment and a suspicion which to some extent is justified. But it also prevents ordinary citizens from seeing the necessity for the Press to protect its sources. I have been horrified to find in the correspondence in The Times, the Daily Telegraph and the Guardian the ignorance of ordinary people of the serious problems of a responsible Press.
I thought that there was a certain hypocrisy when the hon. Member for Heywood and Royton (Mr. Leavey) solemnly said that he could not understand why sources had to be protected. How is it that any hon. Member who talks to the Lobby cannot understand the responsibilities of a journalist to his source? Every one of us makes himself a source of this kind to the Lobby correspondent. Every one of us trusts the Lobby correspondent not to reveal his source if we wish it not to be revealed. /n those circumstances it seems to me hypocritical in the extreme for hon. Members not to feel it their duty to expound to the public outside the need for a responsible Press to protect its sources.
It is impossible to have a responsible Press which cannot have off-the-record relations. It is essential to have sources who will give the journalist information, who will talk to him freely provided that he does not quote them. It is not a question of leaking or secret information, for if a man is to be a responsible journalist, then in all relations with Government Departments or anyone else he must have an understanding with people that they will talk to him provided that they are not quoted. Who would say that we should have any truth brought out in this modern world without confidence being established between responsible journalists and their sources of information?
I come to the second question: given that fact, must I have a legal guarantee that I suffer no damages by protecting my source? I do not think so. This is a case in which the Press must be prepared in the last resort to do the honourable thing, which is to suffer the penalty of imprisonment to protect their source. It does not prove that the law is wrong if the Press in the last resort have to 729 go to prison for the sake of protecting their source. In the last resort there is a conflict between the security of the State, on the one side, and the freedom of the Press, on the other. It rarely comes to the point in such a conflict that a Pressman has to go to prison, but a good Pressman should always realise the existence of this possibility.
What has surprised me in this case is not that two Pressman have refused to reveal their sources. Of course they were prepared to go to prison to protect them. What has surprised me is that two relatively junior reporters were allowed to go to prison without any senior member of a newspaper staff being prepared to come forward and to say, "I gave them orders. I was responsible. If these men go to prison, then I should go to prison, too." The Press would have looked far better in the public eye if, instead of it being left to these junior members of the staff to be picked on by the Tribunal, we had had a couple of Press proprietors and a couple of editors claiming that they were jointly responsible for what had happened and saying that if their junior staff went to prison, then they insisted on going to prison with them. If that had been done, there might have been a healthier situation.
It is equally wrong that the Tribunal was not responsible to the House. If a tribunal which we set up to investigate something finds that someone refuses to tell it what it wants to know, then it is the tribunal's job to report these witnesses to the House.
The right hon. and learned Gentleman shakes his head. Why not? If we tell somebody to investigate on our behalf and those who investigate on our behalf then find that somebody refuses information, the proper course is that we should decide what to do with the people who refuse us information. That is what would have happened had there been a Select Committee.
In the case of the Marconi scandal, the editor of the Spectator refused to give evidence to the Select Committee and expose his source. Was he put into prison? He could not be, because the Select Committee had to report him to 730 the House of Commons, in which case he should have appeared at the Bar of the House. But the House would have shirked putting him in the Tower, and did nothing.
I see two aspects of the case. If we have an adequate, proper and responsible procedure for investigation, we should insist, not on a semi-judicial procedure, but that those witnesses who do not give their sources of information should be reported too. Had that happened in this case, I very much doubt whether the two men would have been ordered to prison by the House of Commons.
I come, therefore, to the final conclusion. I do not think that there is any grave issue of principle involved in the Pressmen being sent to prison. It can happen to the Press occasionally. There are, however, grave issues of principle involved in the form of tribunal which we have established, and grave threats are involved to the freedom of the Press in the present relationship between public opinion and its lack of confidence in the Press.
Here I agree with my hon. Friend the Member for Dudley. The Press should cure that lack of confidence by organising itself. We are a profession, like lawyers and doctors. All the other professions have a code of conduct, and impose it upon themselves and expel members of the profession who break the code of conduct. It is time that we in the Press had our code of conduct. We have our Press Council, which was empowered to enforce a code of conduct.
Let me give a couple of examples to indicate what I mean. Take the question of whether it is proper to pay criminals large sums of money after they have been convicted for their reminiscences. As long as there is no collective decision by the Press on that matter, every newspaper in a competitive world will find itself irresistibly tempted to outbid the others for the story of Vassals or whoever it may be. If, however, we had a real Press Council, which decided that this was against the ethics of the Press, it would be quite easy to stop the practice straight away and altogether.
Take a more serious case. Is it in order for the Press to pay its sources of information? For instance, we know that it is not in order to bribe Members 731 of Parliament—we had a case of that; but is it in order for papers with a lot of money to pay their sources in Whitehall? This is a subject which the Press must argue out itself in its own Press Council and lay down a code of ethics. If there were a collective code of ethics, the Press might be deterred from that kind of practice.
As long as we do not have collective wisdom and a professional etiquette in the Press, with the Press working together and working out these codes of conduct, with a Council with a chairman who counts for something and with enough money and a budget to enable it to enforce these things, we cannot be surprised that in a highly competitive world each newspaper is corrupted by competition into having to instruct its reporters to carry on their profession according to degrading practices which they do not really want to do.
If out of this episode, out of the resentment against the Press—in my view, the ill-informed resentment—revealed by the public, the Press decides to put its own house in order and to have this collective wisdom to enforce a code of honour, then the two journalists can feel that they have not been entirely wasting their time in prison to achieve this.
Equally, I hope that this House will realise that if the journalists are to do this for themselves we have to stop the Executive from deliberately refusing to provide information and so therefore provoking the presentation as hard news of half-boiled rumours. That is what is inevitably imposed on the Press by the restrictions and silences of the Government.
§ 11.20 p.m.
§ Mr. Ronald Bell (Buckinghamshire, South)
I find it a little difficult to follow the hon. Member for Coventry, East (Mr. Crossman) in his argument that the Vassall Tribunal was set up by the Government with inquisitorial power in order to conceal something and for purely party political ends. The hon. Gentleman did not explain or elaborate that remark, and I felt that it was the only incursion into party politics in this debate, and a regrettable one.
The hon. Member went on to say that some of these problems would not arise 732 if the Press had a code of ethics so that, for example, newspapers would not pay criminals for their memoirs or sources for their information. But how would one enforce such a code? How would one decide whether an article was based on information supplied by a criminal or came from sources for which payment had been made, unless one compelled the newspaper concerned to disclose its source? That is the difficulty which we cannot get away from.
I agree that the hon. Gentleman said that in the last resort it could be right that a journalist ought to go to prison. But what better example of a last resort can one get than a tribunal set up under this Act by both Houses of Parliament declaring that there should be an inquiry with this inquisitorial power into a definite matter of urgent public importance?
§ Mr. Crossman
I thought that I had made it clear that, in my view, once the Tribunal had been set up, I could not find it wrong that the journalists should be sent to prison for contempt of court. What I objected to was the setting up of the Tribunal.
§ Mr. Bell
I am grateful to the hon. Gentleman for clarifying that. I did not understand that that was the point he was making. I am, therefore, able to agree with him that once a tribunal is set up by Parliament it clearly becomes the duty of anyone called before it to answer questions which it regards as essential to its task in the public interest.
If a journalist does not answer the questions, it is right—and the hon. Gentleman agrees that it is right—that he should be committed to prison. That, of course, is a regrettable state of affairs and, indeed, everybody does regret it. But it would not be different if the inquiry were carried out by a Select Committee of this House. A witness who refused to answer a question by the Committee would be reported to the House, which would then be faced with exactly the same problem and would presumably decide, as the hon. Gentleman himself has decided in this case, that the journalists should be sent to prison.
I believe I am right in thinking that, in the case of the Garry Allighan inquiry by a Select Committee, the House did in fact compel the disclosure of information of this character.
§ Mr. Kirk
My hon. Friend is not right in his recollection. I quoted that case in opening the debate. The House could not compel the journalists to disclose the source. They refused to answer. The information was not disclosed by them until the Member of this House concerned admitted that he was the source.
§ Mr. Bell
I wanted to give way, Mr. Speaker, only because I had not checked my facts on this case. I knew I might not be entirely right. But my recollection is that the House required the editor to disclose his sources of information.
Anyway, the point is—let us keep to the point—that the House would then have to make the decision whether to compel the witness to make disclosure or not. I submit that this is a matter of opinion. The hon. Member for Coventry, East thinks that the House would not have done so. I think that the House would.
§ Mr. Crossman
I have been looking at the history. I do not think that the hon. Gentleman will find an example where a refusal to give evidence to a Select Committee has ever caused the House to order anybody to go to prison. The striking fact is that the last case known was the Marconi scandal. The House, when faced with the fact that the editor of the Spectator refused to give his source, discreetly avoided either calling him to the Bar or forcing him to do so. That is the last case that we know which is comparable with what we are discussing now.
§ Mr. Bell
I am obliged to the hon. Gentleman. We have not had such cases since because we passed the Tribunals of Inquiry Act, and since then matters of this kind have gone before what is a more suitable tribunal. I am not talking about the tribunal in the 1921 Act, but the issue of contempt of the tribunal now goes to the High Court, which I think is a more appropriate tribunal. That is what I mean. That is why the House has not had this difficult question before it. But if we had to deal with such a case and were not able to remit it to the High Court, I do not think we could avoid coming to very much the same conclusion unless we were prepared to allow a coach and horses to be driven through the inquiry which we ourselves had ordered.
Much has been said about the etiquette of journalists. It seems to be that not just a journalist but any man can bind himself in personal honour not to do something which it might later become his legal duty to do. If he does that, he has got himself into a mess. He may feel that it is his duty to hold to his personal bond and go to prison. That does not prove that the law is wrong. It just proves that sometimes in life people, not even being particularly careless, may make bargains which are awkward. I happen to believe that when people make bargains which are awkward, they ought on the whole to keep them and not grumble about the consequences, and that we might all be happier if we all kept our bargains a little more scrupulously.
There are also, of course, some bargains which are by their nature not of an absolute character. The hon. Member mentioned our own relations with the Lobby. I should think that if in the Lobby one said to a journalist something which one did not want ascribed to oneself—and one, of course, talks to Lobby journalists upon the accepted basis that things are not by name ascribed to oneself—one would not think of that special relation as enduring if the matter in question came to be inquired into either by a Select Committee or by a tribunal under the 1921 Act. I do not think so. I think that one would accept that this was merely a day-to-day understanding, and that if there was something of overriding importance, like a Resolution of this House saying that this matter had to be probed to the bottom and the sources discovered and disclosed in the public interest, then one 735 would rightly think that the journalist was entitled to say, "Well, it was the hon. Member for so-and-so who told me", because one is not thinking when one talks to a journalist of the last resort and of some exceptional inquiry of this character.
§ Mr. Crossman
Would not the hon. Gentleman agree that in that circumstance what one would expect is that the journalist would come to one and ask one to release him from his obligation? This is what I should expect to happen. One might say that he could or that he could not be released. What one would normally expect is that the journalist would appeal to one to be released from it before he mentioned the source.
§ Mr. Bell
He would want to, but normally when speaking in the Lobby to a journalist there is no special bargain made. It is merely a general understanding that he does not divulge his source of information. But if the House, by Resolution, were to order the journalist to divulge it, I think it would create a special circumstance.
§ Mr. Wigg
I should like to ask one question, for my information. This is my dilemma. I understand what the hon. Member says. But would he apply the same rule to members of the Government Front Bench who often use the Lobby, quite honourably and legitimately, as a method of making Government policy known?
§ Mr. Bell
I do not wish to be disobliging, but in the interests of everybody I do not think I ought to give way after every few sentences.
That is the narrow issue on which this matter has been decided, that this was a case of last resort—a very rare and special one. In my view, it makes the position quite clear as regards these two gentlemen.
736 I should like to make one or two general remarks. I agree very much with what the hon. Member for Dudley (Mr. Wigg) said. I think that some of these things need saying. There is public interest in the free obtaining of news, but I feel very unhappy about some of the ways in which news is obtained. I think that the Press, we and the public have got to look at this matter very carefully at some time in the future. I am thinking primarily of payment of sources, which an hon. Member has mentioned. It cannot be in the public interest that so many people in so many branches of the public service should be corrupted as they are being corrupted, day by day and week by week, by the Press in this country. It is really a shocking thing.
I should like to tell the House of one example which brought this situation to my notice some years ago. I had a constituent who is a rather well-known prisoner and who used to escape fairly often to protest his innocence. He used TO present memorials to me, to be presented to the Home Secretary. The House will know who the prisoner was, I am sure. He used to write to me when he was on the run—which made it more awkward. On one occasion he sent to me a memorial asking me to present it to the Home Secretary. I thought it was my duty to do so. I telephoned the Home Secretary's private office at 4 o'clock one Friday afternoon from this building. This was some years ago. I spoke to the private office and arranged to see the Home Secretary at 6 o'clock on the following Tuesday.
About 50 minutes later I received a telephone message asking me to ring a certain national newspaper. I did so, and I was asked if I was seeing the Home Secretary at 6 o'clock the follow-Tuesday. I was extremely puzzled, and I said, "I arranged this only about three-quarters of an hour ago and I have not spoken to anyone about it. How do you know?". The answer that I got was, "It was information which we received from one of those people who send us bits of information for a couple of guineas, but the source was not good enough to use it without referring to you first." I said, "I do not mind anybody knowing that I am going to do so." Hon. Members will realise that that information could not have 737 reached that national newspaper without a gross breach of confidence on the part of somebody. I do not know who, and it would be wrong even to suggest anybody, but somebody in a public position somewhere sold that information to the newspaper for a couple of guineas. Is it in the public interest that this should go on under the cloak of the phrase the public has a right to know?"
I think that the public has a right to know what goes on in this way, and I hope that we shall do something about this and not acquiesce in this corruption of public morals for which the Press more than anybody else is responsible at the present time. I say that because I think that the imprisonment of these two journalists and the Vassall Tribunal at last bring all these matters up to the surface of public attention, and before they sink again some useful and constructive action must be taken.
§ 11.35 p.m.
§ Mrs. Barbara Castle (Blackburn)
We are not here tonight trying to define what should le the exact limits of the legal privileges of the Press. We are here for the specific purpose of pressing for the remission of the sentences in two particular cases. I am the last person in the House to hold an unqualified brief for the Press. As a member of the National Union of Journalists, I think that as a Member of Parliament I have suffered at the hands of the Press just about as much as anyone in this Chamber tonight. I have been pursued by them; I might also say persecuted by them on innumerable occasions, including Cyprus, and in respect of many other matters.
I have not come here tonight to put the Press in a white sheet. By all means let us put teeth into the Press Council. By all means let us do everything in our power to encourage higher standards of self-discipline inside the Press. I do not believe that the Press can be given unqualified privileges. Unlike the hon. Member for Gravesend (Mr. Kirk), I have made up my mind on this point. I am satisfied that we cannot do that, because the whole basis of our demo-racy lies in a system of checks and balances, and if we give absolute power 738 of that kind to any section of the community we upset that very delicate system of checks and balances.
Having said all that, I think that we are in grave danger tonight of suffering from an overdose of hypocrisy. We hear a lot about the distortions that appear in the Press, the power of distortion in the Press, and the power of withholding the truth from the public as a result of the selection of news by the Press. I suggest that that power is nowhere near as great as the power of distortion that lies in the hands of the Government, or the power to withhold the truth that lies in the hands of the Government.
I suggest that by showing a rather qualified enthusiasm for seeking to get a remission of the sentences on these two men we are in very grave danger of upsetting that delicate system of checks and balances. We cannot put the Press in a white sheet, and we cannot put ourselves in a white sheet either. That is the principle for which I stand tonight, and it is on that basis that I return to the kernel of the debate, which is to ask the Home Secretary to remit the sentences on these two men. I do this because it is a matter of concern that at this moment in a free country two honourable journalists, admitted by all concerned to be honourable journalists, are in gaol.
Without going into the wider questions that have been argued much more ably than I can argue them by all those who have spoken—questions concerning the law regarding the setting up of tribunals, the alteration of the law, and of giving the Press certain privileges—I suggest to the Home Secretary that there are three practical grounds upon which he has an obligation to exercise his discretion favourably to these two men. The first ground is that we all know that the Government take advantage of this aspect of the journalists' code when it suits their purposes, and they benefit enormously from the operation of that code, and from their knowledge that they can rely on journalists not to disclose the sources of information given under it.
My answer to the hon. Member for Buckinghamshire, South (Mr. Ronald Bell), who said that he thought that any Lobby correspondent ought to be relieved of that obligation if a decision were taken 739 by this House, is that that will not worry the Government very much, because the Government, by definition, are the representatives of the majority party, and we can be pretty sure that they will have a majority vote to protect their majority interests. The code of secrecy becomes important when we find ourselves fighting for the minority—for the system of checks and balances upon a powerful Executive.
The second ground on which the right hon. Gentleman has a duty to remit these sentences is that there is a widespread suspicion that the Tribunal which has led these journalists into this difficulty was set up for the primary purpose of putting the Press on trial, and not for the primary purpose of finding the best way of examining whether or not the security system of this country is adequate to protect its people; that it was set up as a punishment to the Press for having spread certain rumours and allegations. I suggest that the Home Secretary gave the game away in a verbal lapse during Question Time. He made a Freudian slip when we were discussing the question whether or not witnesses who appeared before the Tribunal should have their expenses paid. The right hon. Gentleman wanted to qualify this right according to whether the character of the individual who had appeared turned out to be of a high enough standard to warrant this. He said that the tribunalmay pass reflections on certain individuals … of such a character that nobody would say that those individuals should have their expenses paid out of public funds".My right hon. Friend the Member for Belper (Mr. G. Brown) pointed out that we did not make this kind of moral distinction where legal aid was involved, to which the right hon. Gentleman replied—without thinking of the implications of what he was saying—that according to his information,legal aid in cases of libel is not available".—[OFFICIAL REPORT, 29th November, 1962; Vol. 668, c. 663.4.]Who was talking about libel? We were talking about the setting up of a tribunal, for the purposes of probing the state of our security system. This suspicion, which has been widely held, is one which has gravely poisoned the relationships between Parliament and the Press. That is a very strong reason why 740 the Home Secretary should remove some of that poison by the exercise of his discretion.
The third ground on which I urge it is that there is also widespread belief that these two men are being punished for the failings of the Press as a whole, that these men's sentences are being accepted very calmly in some quarters because, as my hon. Friends have pointed out, public opinion in this country has been allowed to hold the Press in increasing contempt. A lot of scathing things have been said about the Press in this Chamber tonight. I repeat that I am not holding any brief for the Press, or attempting to put it in a white sheet, but I see serious dangers when we start to condemn the pursuit of what my hon. Friend the Member for Dudley (Mr. Wigg), in his Amendment to the Motion on the Order Paper, calls "adventurous sensationalism". He suggests that the proprietors of newspapers might be punished by the imposition of severe financial penalties when theyconsistently indulge in adventurous sensationalism with little regard to the public good.Who is to decide what is the public good?
§ Mrs. Castle
If it is to be a piece of internal self-policing, it is a different matter, but I do not know if it can be done by legislation. In this Chamber tonight he has rightly referred to a current piece of sensationalism in which the Press is indulging at the moment over the case to which he referred. It would suit the book of many people no doubt to deplore the avidity with which the Press is at this moment pursuing the question of where Miss Christine Keeler has gone, the missing "call girl", the vanished witness. Is it the pursuit of sensationalism for its own sake, or could it be that there is public interest at the back of the agitation by the Press? My hon. and learned Friend the Member for Northampton (Mr. Paget) said that if it is just a case of a Minister having been found with a pretty girl, good luck to him, but what if there is something else of much greater importance? What if it is a question of the perversion of justice that is at stake? The Clerk of the Central Criminal Court, Mr. Leslie 741 Boyd, is reported in The Times today as saying that:If any member of the public did know where Miss Keeler was it is his or her duty to inform the police.If accusations are made that there are people in high places who do know and who are not informing the police, is it not a matter of public interest?
§ Mrs. Castle
I am making this claim that these accusations are spreading and the point is that, on the one hand, in pursuing them the Press could be condemned for pure sensation-mongering and, on the other, it might be that the public interest is involved. I hope that the truth will come out about this.
§ Mrs. Castle
I am suggesting that there has been sufficient rumour to warrant the complete probing of this matter, in the interests of everybody. I am saying that this is a case in which, if these facts are established, this particular piece of sensation-mongering was in the public interest. It is very difficult to distinguish where the line may have to be drawn and where good taste may not in fact merge into a conspiracy of silence which is convenient for some people but is not in the public interest.
Therefore, I suggest that we in politics are not in a position to pass judgment on the Press without ourselves on occasion meriting to stand in the dock. We, whether as individual M.P.s or as a Government, are not always motivated by the purest and most undiluted of motives. Do we never do any circulation promotion of our own? Do we never cadge for votes?
What I am saying is merely this. The Press has its faults. So have we. The Press has its rôle. So have we. The Press commits scandals. So do the Government. Therefore, our duty in this debate is not in a pious mood of self-righteous judgment on the Press to say, "These two men have got as good as they deserved. It will not hurt them to go to gaol. This is the sort of price they have to pay." I suggest that we should rise above that, we of all people 742 who suffer sometimes more than anybody from the probings and persecution of the Press. I repeat that I have suffered from that. That is one of the risks one has to take in public life. It is better that some of us should suffer unfairly than that the essential watchdog of democracy should be muzzled in the name of good taste. These balances must be maintained. It is for us to see that they are.
§ Mr. Paget
Surely the hon. Lady should tell us from whom and where the rumour has come other than from herself—and from herself it will appear in every newspaper tomorrow—that people in high places have been in any way responsible for the disappearance of Miss Keeler. I have seen that stated in no newspaper. I have seen it suggested nowhere until this evening.
§ Mrs. Castle
All I can say is that my hon. and learned Friend must be the only person in the House who has not heard it mentioned.
§ 11.53 p.m.
§ Mr. Harold Lever (Manchester, (Cheetham)
It is quite clear from the debate that very mixed views are held about the Press. It is guilty of the crime of disclosing too much and too little. As my hon. Friend the Member for Blackburn (Mrs. Castle) said, the Press has its faults and the House has its faults. We have done our best this evening to demonstrate our part of the bargain.
I am glad that my hon. Friend the Member for Oldham, West (Mr. Hale) has returned to the House, because I confess that some of the historical parallels he drew with the two journalists affected by this discussion did not seem to me to be altogether in point. Some of the tragic and some of the less tragic parallels were not very exact. We ought to rid ourselves of some of the debris which has accumulated in the course of the 743 debate. One piece of debris which has accumulated round the argument is as to the severity of the sentences.
I do not think that anyone can say that, assuming that the Tribunal was justified and assuming that the information was of vital importance to the Tribunal—after having waited patiently, through the machinery of the High Court—excessive sentences were imposed. No one can really say that the sentences imposed on these two journalists were savage.
§ Mr. Speaker
A substantive Motion would be required if the hon. Member intends to criticise the sentences imposed by the court.
§ Mr. Lubbock
The hon. Member is saying that he assumes that the matters were of importance to the Tribunal. Does he think that that was so in regard to the allegations about women's clothing?
§ Mr. Lever
I said that, based on those assumptions, the sentences were moderate. As to the suggestion that the Lord Chief Justice, before passing sentence, disclosed himself as being Britain's No. 1 Communist because he said that he would not pass sentence if the witnesses felt able to answer the question which the court had put, that is ludicrous hyperbole.
§ Mr. Lever
I will give way to my hon. Friend in a moment, at least once, because he gave way that number of times to me. I was saying that the Lord Chief Justice, in his anxiety not to sentence two men of good character to prison, offered them time in which to reflect, drew their attention to their public duty in words which were not excessive or extravagant and pointed out that they had to consider, as well as their understandable professional feelings, other things. To say that, in those circumstances, the Lord Chief Justice disclosed himself as being Britain's No. 1 Communist is such ludicrous hyperbole as to be almost contemptible.
§ Mr. Hale
My hon. Friend is quite right, but, whatever he says about ludicrous hyperbole, to suggest that I said that the Lord Chief Justice disclosed himself as Britain's No. 1 Communist 744 means that my hon. Friend has either not understood what I was saying or he is grossly misrepresenting my words. I said that his submission that a man had a duty to the State higher than any duty to his conscience, higher than any other loyalty, higher than a duty to God and higher than a duty to faith, was a classic example of a Stalinist case.
§ Mr. Lever
The Lord Chief Justice's conduct in this matter was in accord with the type of conduct one would wish to see applied if this difficult situation had to be arrived at.
The claim that journalists are entitled, because over a long period they have come to the habit of keeping to themselves, to keep their sources of information to themselves in all circumstances—and that, thereby, that habit should be incorporated into the law—is too absurd a claim to be argued. One might humorise that riposte by pointing out that judges—because of a sort of habit they have when people do not answer questions in court—have got into the habit of sending people to prison for contempt. I suppose that it is just as justifiable to say that since the professional habits of the judges entitle them to send people to prison, so the professional habits of journalists entitle them to refuse to answer questions in court.
No profession, no individual can, by custom, incorporate into the general law a privilege for himself. If the general law were to give him such a privilege it would have to be done by legislation in this House so that it was made clear just what were the rights of the citizen. Clearly, no House of Commons, in contemplation, would think to give a journalist any statutory or legal backing for the habits of his profession, in so far as they exist, to entitle him to refuse in court to disclose his sources of information.
745 I also think that the argument that some 36 other journalists, or more, went free after refusing to disclose their sources of information impugns the principle I have just enunciated shows the great and immaculate good sense of the Tribunal in its anxiety not to precipitate a clash between the interests of the State and the interests of the journalistic profession in this matter. It is commendable, not reprehensible, that many other journalists were not proceeded against by the Tribunal, and not returned to the High Court, notwithstanding the fact that they, too, refused to disclose their source. As long as the Tribunal felt able to say that their non-disclosure was not such as to affect the proceedings of the Tribunal and did not impose on the Tribunal a duty to prosecute them, the Tribunal felt able to overlook it, and let it go at that. It is absolutely pointless to say that these men should go free, or that a new rule was established for journalists, because some journalists did not go to prison on this occasion.
I should now like to venture a reason why these men should be released as soon as possible by endorsing the argument advanced by my hon. Friend the Member for Coventry, East (Mr. Crossman) who, in my respectful submission, is absolutely right when he says that the House should not have left this matter to the courts. If the journalists, or any of them, refused to answer questions, it was this House that should have decided what further action, if any, ought to be taken, and I shall proceed briefly to argue that reason.
Once we have eliminated the concept of special privilege for any citizen to set up rules of his own about what may or may not be given in evidence, and consider the whole case dispassionately, we find ourselves in the presence of the conflict of public interest. It is in the public interest that, in certain circumstances, the State should be able to make inquiries and to ask questions. The State, of course, can never ask questions which compel a breach of legal professional confidence, but it can compel a breach of journalistic confidence.
If I briefly examine why a lawyer and his client have this privilege, it will be the best answer to those who claim the privilege by professional habit. The reason why lawyers are given it, and excep- 746 tionally given it, is that if we wish to have any kind of democratic freedom in a modern, complex society, with complex legal rules, every citizen must have free access to a lawyer who can explain his rights and his position. He must have free access, and such access would not be free unless every citizen was certain that when he went to his solicitor his discussions with and disclosures to his lawyer were absolutely privileged in all circumstances. It is a paramount public interest, over-riding all other public interest, that if we are to preserve any kind of democratic life in the country, people must be in a position to get to know their legal rights, to learn from their lawyer what those rights are, and speak with unfettered freedom in the presence of their lawyer.
No such claim can be made for the journalist. It is quite unarguable that the safety and interest of the public require that when people are in consultation with a journalist they shall, in all circumstances, be satisfied that the journalist's professional integrity will never be attacked by the law, and that the law will never require the journalist, in any circumstances, to reveal what has been said to him in confidence—
§ Mr. Fletcher
There is no obligation on anyone to talk to a journalist if he does not want to, is there?
§ Mr. Lever
With respect to my hon. Friend, I do not put the case on that ground. The sharp difference between lawyer and journalist is this. The law gives an unrestricted privilege to the lawyer for the sake of the citizen. In a modern society, the citizen can have no safety or security unless he can have professional advice as to his legal rights. If his intercourse with his lawyer is not to be absolutely privileged and protected, no citizen would get to know what his legal rights are. The law therefore recognises, as an over-riding public interest in a democratic society with a fundamental belief in freedom, that that relationship shall be the subject of absolute privilege.
In the case of the journalist, it is not because one is not obliged to go to the journalist but because the public interest does not require that in all circumstances nobody shall be entitled to compel a breach of the confidence existing between 747 a citizen and a journalist. Although it is desirable, as pointed out by many hon. Members, that there should be a free flow of communication between the public and the journalist, there is no overwhelming public interest which requires that in all circumstances that free flow should not be the subject of judicial inquiry as in the case of the relationship with the lawyer.
The long-term interest of the public, nevertheless, is that there should be this free flow of news and, having established the clear position that there is no intention of according a special privilege to journalists to protect their sources of information, I should have thought that the House might then usefully ask itself how it is that this is the first occasion in the history of the country, as far as I am aware, on which a journalist has been sent to prison for refusing to disclose his sources of information?
It is fairly obvious that over a long period of time we have recognised that the free flow of news requires that the journalist should not be treated in this sort of way. While we have a general principle that in certain circumstances a journalist ought to be compelled to disclose sources of information, we are forced to see from our own history that those circumstances practically never ought to occur. The reason that they occurred was that the Government decided to set up a roving inquiry of this kind for an inadequate and insufficient reason.
Some hon. Members said that the Government set up the inquiry from base and unworthy motives. I have a charitable disposition and I never attribute to guile and dishonest cunning on the part of the Government what can be more readily attributed to stupidity and folly. The bad tempered and ill-considered way in which the Tribunal was set up is quite enough to condemn the circumstances of its origin without having, as frankly we have not, satisfactory evidence about ulterior motives on the part of the Government.
The whole circumstances of the inquiry show why we are placed in embarrassment about having to judge between a conflict of public interest which on the one hand requires that the flow of news shall be as free as possible and, on the other hand, requires that the safety of the State shall entitle us to inquire be- 748 hind the confidences given to jounralists. The whole mischief arises from the fact that the Tribunal was set up without adequate reason or consideration of where it would lead. The safety of the State is not truly involved. On the other hand, the long-term interest of having freedom of the Press is put in jeopardy because for the first time in our history we have gaoled journalists for refusing to answer questions about their sources.
This case has revealed widespread hostility to the Press, and some of it is justified, but I am by no means sympathetic to the general hostility displayed tonight towards the Press. It has been rightly said that a Press Council with effective powers should be brought into existence. This is long overdue. I understand that the newspapers have been very reluctant to have outsiders involved with the disciplining of the profession. That understanding was deepened when I listened to the observations made tonight with complete lack of understanding of how newspapers work and of how the public is the beneficiary of a great deal of their work. But I remind the Press that there have been two Royal Commissions both of which have demanded that there should be an independent chairman of a Press Council set up to discipline and establish a high code of conduct universally among newspaper men.
I hope that the Press will take heed of the rising criticism of its failure to achieve this standard of self-judgment and that we shall see action to set up an effective Press Council. I do not think that the Press Council's activities should by any means be despised. Bearing in mind that it was experimental and bearing in mind the difficulties arising from the complex of voluntary people banded together, the Council has done a great deal of useful work, but the time has arrived when the Press must make up its mind to yield to the wish of Parliament as expressed through two Royal Commissions and to have an independent Chairman of the Press Council.
Having said that, I wish to dissociate myself from those who fail to see that the democracy which we have in this country would not work if the Press were to be constricted by a feeling that tribunals were to be set up for inadequate reasons and that newspaper editors were supposed to write their stories under the 749 continuous threat that they might be forced to disclose the sources of their information or go to prison.
I wish also to attack the humbug which lies behind a good deal of the criticism or lack of reflection involved. It is all very well to say that we want a Press which will be free provided that it does nothing improper and is not sensational and maintains standards of propriety which would commend themselves to the majority of hon. Members. If we have a Press of that kind, whatever else it will be, it will not be a free Press. We must be realistic about it. Newspapers must go out and be active in getting information, sometimes improperly. I say without hesitation that anybody who confines the newspapers to getting strictly proper information in all circumstances is denying the public the right to information which they have had traditionally over a long period. However unpleasant it is for individuals, however little I admire some of the people who give the information to the Press, I am forced to the sophisticated reality that our freedoms in this country would not exist to the extent that they do but for the vigilance of the newspaper Press and but for the fact that sometimes they receive improper information which ought not to be imparted to them.
I will give two simple examples of a totally different kind. Let us suppose that the right hon. Member for Woodford (Sir W. Churchill) in his campaign before the war to alert the public to the menace of German rearmament and the inadequacies of British rearmament had not been satisfactorily supplied with information by serving officers of high rank. He would have been confined to a great number of windy generalisations, undocumented and unconvincing in their impact. The Government would have been the sole repository of the accurate information and the Opposition and the Press would not have been able to bring to the notice of the public a great many things on which perhaps turned the safety of the realm. Had we had the kind of spirit sometimes evinced in the course of this debate we might well have found that this kind of improper information would not have been given and the country would have been gravely the loser by that fact.
§ Mr. Wigg
Surely in recalling that example my hon. Friend has overlooked 750 the fact that the present Secretary of State for Commonwealth Relations was taken behind the Chair in the room of the Secretary of State for War and asked to give the information which he had obtained from serving officers—and to his great honour he told him to go to hell.
§ Mr. Lever
That is a curious intervention if it seeks to contradict my argument; in fact, it supports it. The Secretary of State for Commonwealth Relations was himself the recipient of improper information which he tried to use in the public interest, and when asked to disclose his source he relied on his Parliamentary privilege. I hope that the intervention was intended to corroborate my argument, as in fact it does. I am reminded that the Secretary of State for Commonwealth Relations before the war received information which he ought not to have had and which was improperly communicated to him in his position as an officer. He made use of it, as he thought, and as I believe, for the public good.
§ Mr. John Biggs-Davison (Chigwell)
Was it not the case that my right hon. Friend, to whom the hon. Member is referring, was not in receipt of information improperly gathered, but had the information about the state of the air defence of London because he was a Territorial Army officer and knew about it as a Territorial Army officer and was threatened by the Secretary of State for War with the Official Secrets Act?
§ Mr. Lever
He could have been threatened with it only if he was likely to communicate it to somebody else, and, of course, he did communicate it to somebody else. One knows the marked reticence normally existing between father-in-law and son-in-law and it is not wholly to be supposed that the right hon. Member for Woodford was not one of the persons whom the Government had in mind when they threatened the right hon. Gentleman with the Official Secrets Act.
That is a classic case, but there are many others where the safety of the realm—we might as well face this and not, as it were, put our heads into a cloud of sentimental Sunday-school attitude in which we do not honestly believe—and the free flow of information for the country often depends upon 751 improper disclosures. It is not always admirable when it happens. We do not always have to admire people who break their faith or duty in giving this information to the Press. Nevertheless, over the long run, in our lifetime the country has benefited greatly by the fact that sometimes people have given to the Press information which, strictly speaking, they ought not to have given.
Another example, which pleases me very much, in the way of improper information is the reports of party meetings. There has been a lamentable tendency, which has been much criticised by hon. Members, on both sides, for too many of the decisions of this House to be made in party caucuses. Whether it is the party caucus of hon. Members on this side or of hon. Members on the Government side, it is still lamentable.
It is very much to the public advantage that some hon. Members, on both sides, appear to furnish, and promptly, too, for those Members who are not able to attend these meetings, a full and detailed account of what takes place. I do not consider this a public disadvantage. Let me say that I do not admire the Members, on either side, who break faith with their colleagues by giving the information. They are not the most admirable members of their parties. They may be doing it for the most sordid reasons, including cash—I do not know. I do not know why they do it. It may be vanity, or all sorts of reasons. Whatever their motives, the ultimate result has been very much to the public advantage. It has prevented a most unpleasing development reaching a peak of great menace to the public safety and to the democracy of our Parliamentary institutions.
There is another example. I give these two disparate examples to show that we must not be prissy about this. We must not say that in all circumstances an improper communication to the Press is to be deplored and that we must see that whatever else the Press does, it does not pay anybody—heaven forfend—for giving information and does not commit impropriety to get information.
Of course, there are limits.
§ Mr. Lever
Of course there are. It is easy to guy the practical standpoint which I have adopted by taking it to extremes. I am not suggesting, for example, that the Press would be justified in, for example, bribing members of the Cabinet to reveal Cabinet—[HON. MEMBERS: "Why not?"] Those hon. Members who say "Why not?" are revealing a lamentable lack of sense of proportion. I can give those hon. Members an argument, but I cannot give them good judgment. Hon. Members did not dissent when I said that it was a splendid thing that the right hon. Member for Woodford was able to get a useful tip-off here and there, because we all know that because he managed to conduct some sort of campaign it perhaps tipped the scales just enough to enable us to survive the Battle of Britain in 1940.
I suspect that most hon. Members on both sides are grateful to those colleagues who leak to the Press the decisions of Parliamentary party meetings. [HON. MEMBERS: "No."] I do not say that all hon. Members do, but this is a free country and this is a particularly free part of it, where differing views are held. I believe that the public interest has been served by such improper disclosures.
§ Mr. Lever
The hon. Member knows perfectly well that the anger against most of these disclosures is not that they are inaccurate but that they are too accurate. The fact is that the powers-that-be on both sides of the House—the party managers and the caucuses—wish to enslave us for their own ends. They have the best of intentions when depriving us of our democratic rights. They want to see us more orderly and advantaged by their administration. But the fact remains that they have little devotion to the Parliamentary system as it should be. I do not think that the reports on these party meetings are inaccurate. They are as a rule very accurate, and it is very useful that such things come to light.
I shall not bore the House by giving more illustrations. But I say that no one has the right to sit here and lecture people about the kind of newspapers they should read. I have heard a great deal 753 of talk about sensationalism. There is nothing wrong with being sensational on certain subjects.
Incidentally, as this is a free country, if someone wants to present the subject of, for example, a film star's decision to have a protracted love affair with someone else's husband, it is a matter of taste. One can read about it in the discreet columns of The Times or the sensational stories of the popular Press, and there is nothing improper in reading the latter.
If newspapers had followed the guidance of their critics, they would have something like 3 per cent. of the circulation they now enjoy. I know that some people would think that an improvement. The newspapers have never been popular. In certain quarters they have always been regarded as unnecessary interventions in the "club room" of the country, whereby the populace could poke their vulgar noses into affairs which were best left to their betters. I have never subscribed to that view, and if the Press did it would be as dull and lifeless as some of its critics think it ought to be but which would not be in the public interest.
I want to see a strong Press Council, but I think that within reason the newspapers are entitled to be readable and, on appropriate subjects, are entitled to be sensational. If I had to choose between the Press as it is—raucous, crude, often untruthful—and the disciplined, genteel mockery of a free Press that we are invited to bring about, I would rather have our Press with all its faults.
I am certain that this House should do and say nothing that would in any way show that the zeal for a free Press and the recognition of its value in our kind of society is in any way diminished here. Quite clearly, the Press, by many sins against the public, has created a great deal of anger and a great deal of justified criticism. The climate is to ignore the need for the rights of a free Press and to trample them down. The House has always, on mature reflection, realised that the long-term public interest is in the preservation of a free Press.
I think the House of Commons is right to insist that the Press should put its house in order. I think the House is right to insist that no profession can set itself above the law or incorporate into 754 the law automatically privileges of its own choosing. On the other hand, I think that the House of Commons would be failing in its traditional rôle as the watchdog of our freedoms if it denied to its own ally in performing that function—a free Press—the right to the necessities of its existence.
I therefore want to come to the final point, which is the two journalists in question. They have been sent to prison by the High Court. Their real defence was the kind of defence which I have attempted to make for the Press as a whole tonight, namely, that there is a long-term public interest in preserving a free communication between the newspaper Press and the public on the one hand and protecting as far as possible the sources of information given to journalists on the other.
Had we done what my hon. Friends the Members for Coventry, East and Dudley (Mr. Wigg) recommended, and insisted that we brought the journalists back here to decide their fate, I think that the House would have been the right tribunal, because the defence of the journalists is a political defence, not a legal one. The attempt to make out a legal defence for them or to criticise their prosecutors has utterly failed in the eyes of any commonsense person. I agree with my hon. Friend the Member for Dudley about that. He made the case, I think, very succinctly, demolishing much sentimental nonsense urged previously.
The case for the journalists on a legal basis absolutely fails. There is, however, a very important political case to be made on their behalf, namely, that they are cogs in a larger mechanism of infinite and long-term value to the public interest and to the service of a free and democratic community. It is here in this House that political defences should be made and heard.
I could not be more emphatic in clearing for my part any charge of severity or unfairness or impropriety on the part of either the Lord Chief Justice or the Tribunal. I think that they behaved with immense fairness, and, indeed, with great kindness and great humanity, in both cases. I think it is now for the Home Secretary to say that, the court having been put in a position where it had no alternative but to pass sentences of this 755 kind because it is not open to receive the political defence of these gentlemen, it is he who is bound to hear it, and he should hear it and harken to it and harken to it in the public interest and the interest of the free society which we are all so anxious to preserve and defend.
§ 12.29 a.m.
§ Mr. Eric Fletcher (Islington, East)
My hon. Friend the Member for Manchester, Cheetham (Mr. H. Lever) always makes an interesting speech on these occasions. If time permitted, I should have preferred to have discussed with him some of the interesting points that he raised, with most of which I agree, but on one or two of which I differ from him. In view of the hour, I propose to confine myself to a few brief remarks on what seem to me to be the salient points that arise in this debate.
I think we should all agree—there seems to be general agreement—that the tribunal procedure under the 1921 Act is very unsatisfactory. Every time there has been occasion to resort to that Act difficulties, anomalies and inconveniences have been thrown up. I agree with every hon. Member who has spoken on the subject that it is high time that the whole operation of the 1921 Act was reviewed and that we found some far more satisfactory procedure to put in its place. I hope that on some future occasion the House will have an opportunity, as we have often been promised, of considering the general operation of that Act.
Secondly, I agree with what my hon. Friend said. I think that opinions will, and do, differ as to the severity or otherwise of the sentences that were passed on these two journalists. I should think that it may be necessary to await the full Report of the Vassall Tribunal before we can see in its full perspective what was the real effect of the refusal of those two journalists to answer questions and what effect it may have had on the Tribunal's Report.
What has emerged most clearly, as my hon. Friend indicated, is that apart from the organs of the Press and apart from journalists, we all recognise that there has not been any widespread sympathy with the journalists themselves. In fact, the episode of sending these two journalists to prison has thrown into relief the very widespread hostility and concern 756 on the part of the public about our Press today.
I think that there has been a great deal of exaggeration as to the possible consequences that will result from the imprisonment of these two journalists. Speaking for myself, I do not believe that it will in any way affect the freedom of the Press as we know it, or will affect the flow of information to responsible organs of the Press, or, as the Minister without Portfolio said the other day, the practice that has grown up over a long period of confidential, intimate exchanges between Ministers and Members with Lobby correspondents. After all, that system has existed for many years without interruption, and it is only when we get some quite anomalous and extraordinary event such as the tribunal procedure produces, that any occasion arises on which a journalist can be called upon to disclose the sources of his information.
Since the issue has been raised, I would hope that we should not contemplate extending or recognising in any way a claim on the part of journalists to have some rights above the law, which are denied to other citizens, to conceal sources of information if their disclosure is required. As my hon. Friend pointed out, there is a distinction in the case of the absolute privilege to withhold disclosure of discussions between a solicitor and his client. That privilege is required in the interests of justice, because if that privilege did not exist nobody would be free to take legal advice about his rights. Our whole criminal procedure would be disrupted because the result would be that nobody accused of any offence would be able in absolute confidence to take advice as to his legal position.
But there cannot be any principle of justice that requires the extension of that privilege to a journalist or, indeed, to a doctor or to a priest. It seems to me that it would be quite impossible to extend the privilege to a journalist without considering all the other related cases in which a claim to privilege might appropriately be made. One does not confine it to the doctor and the priest. One would have to consider the probation officer, the marriage guidance counsellor, the welfare officer and a whole variety of people. The reason I think that 757 there cannot be any justification for extending the privilege to journalists is that if it were so extended we should find ourselves back in a position far worse than that of the common informer days, because the public would have no defence against an informer being able to talk to some quite irresponsible journalist, and give him information of a totally inaccurate character with complete impunity.
§ Mr. H. Lever
There is the law of libel, which has sometimes been forgotten in the discussions which have taken place tonight.
§ Mr. Fletcher
But, if the privilege were conceded, a journalist would be protected from disclosing his source of information.
§ Mr. Fletcher
Maybe not, but it would prevent the court from ascertaining the truth and make it much more difficult for the court to administer justice.
§ Mr. Fletcher
They have gone to prison for contempt of court. It is as a result of a tribunal of this kind that these circumstances are likely to arise. Experience shows that in cases of defamation and libel over the years no similar circumstance has arisen. I therefore say that the most important net result of this discussion tonight is to emphasise, as so many hon. Members have done, the great concern that is felt in the public mind about our national Press today. Nobody wants to do anything to weaken the freedom of our democratic Press. The public are concerned to see that the information they get is accurate. They are concerned to see that the Press Council takes more energetic steps to put its house in order, and if that results from this discussion, then I think that some good will have come out of it.
§ 12.38 a.m.
§ The Secretary of State for the Home Department (Mr. Henry Brooke)
It is only by leave of the House that I can speak again, because about eight hours ago I delivered a speech on another aspect 758 of the Consolidated Fund (No. 2) Bill. If I have that leave, I think that the House would wish me to speak, though briefly, in winding up this interesting debate.
I do not propose to comment on rumours which have been raised under the cloak of Privilege and safe from any action at law. The hon. Member for Dudley (Mr. Wigg) and the hon. Member for Blackburn (Mrs. Castle) should seek other means of making these insinuations if they are prepared to substantiate them.
The debate on the Press has ranged widely, and I submit to the House that many of the topics which have been raised cannot be adequately debated or grappled with until we have the Report of the Radcliffe Tribunal, when it is known that there will be opportunity for full Parliamentary debate. At the moment we are rather like the ghost without Hamlet for there is no substance that we can give to our debates on those matters.
I think that my principal task is to come back to the beginning of the debate and answer the questions raised, quite properly, by my hon. Friend the Member for Gravesend (Mr. Kirk), and pursued immediately thereafter by the hon. and learned Member for Ipswich (Mr. D. Foot), and taken up later by the hon. Member for Blackburn.
For the record, I must very briefly run over the facts. They are known to most hon. Members, but I cannot properly reply to my hon. Friend the Member for Gravesend unless I put the matter which he has raised into perspective.
The Tribunals of Inquiry (Evidence) Act provides thatWhere it has been resolved … by both Houses of Parliament that it is expedient that a tribunal be established for inquiring into a definite matter described in the Resolution as of urgent public importance, and in pursuance of the Resolution a tribunal is appointed for the purpose … the tribunal shall have all such powers, rights, and privileges as are vested in the High Court … in respect of … enforcing the attendance of witnesses and examining them … and compelling the production of documents.It goes on to provide that the chairman of the tribunal may certify to the High Court that a witness has refused to answer a question to which the tribunal may legally require an answer, and the court after inquiring into the alleged offence, and after hearing any witnesses and any statement that may be offered in defence, may 759punish … that person in like manner as if he had been guilty of contempt of the court.It was under those provisions, and in pursuance of certificates by the Chairman of the Tribunal set up by a Resolution of both Houses to inquiry into the Vassall case, that Mr. Foster and Mr. Mulholland were brought before the High Court. There was a two-day hearing, and at the end they were sentenced to three months' and six months' imprisonment respectively for contempt of court. The court said that should the journalists reveal the sources of their information, or should the information reach the Tribunal from some other source, this would change the situation and might provide means for reviewing the sentences of the court. The two journalists did not take the opportunity given to them by the court to reveal the sources of their information. I will return later to the question whether any further information that is relevant has come to the notice of the Tribunal subsequently.
The Court of Appeal dismissed the journalists' appeals, and the House of Lords refused leave to appeal against the decision of the Court of Appeal. Accordingly, they were committed to prison on 7th March—a fortnight ago. The truth of the matter is that there has been a direct collision between the interests of the journalists and the ordinary rules of evidence, applicable in all our courts, upon which depend the administration of justice. There has not been a dispute between the Executive and the journalists, or the journalistic profession; there has been a direct collision, as a result of which two men with whom we probably all personally sympathise, find themselves in prison.
I take up the point made by the hon. Member for Islington, East (Mr. Fletcher) and the hon. Member for Manchester, Cheetham (Mr. H. Lever) about the privileges of lawyers and journalists. As I understand it, the lawyer in isolation has no privilege; the privilege belongs not to him but to his client. The foundation of that privilege with regard to disclosure is that, as was said, professional legal advice and assistance is essential at times in the interests of justice, and without the existence of that protection it could not be obtained safely or effec- 760 tively. The foundation of that privilege, therefore, lies in the administration of justice, and it is that which alone justifies it.
My hon. Friend the Member for Gravesend appealed to me to make a recommendation to the Queen for the exercise of the Prerogative of mercy. That is now the only way in which the sentences passed upon these journalists could be remitted. They have exhausted their rights of appeal to the courts.
I should make quite clear to the House how there are long-established principles governing the exercise of the Prerogative of mercy. Briefly these principles are that where a sentence has been lawfully passed by a court—and, of course, most especially where that sentence has been upheld on appeal—it is not the function of the Home Secretary to re-try the case. It is not his function to attempt to re-try the case on the facts which were before the courts. It is not his function to set his judgment against that of the courts or to say that if he had been the judge he might have thought it right to impose a different or a lesser penalty, or perhaps no penalty at all.
There is a fundamental constitutional principle, which we must all recognise and uphold, that the Executive, save in the most exceptional circumstances, must not interfere with or overrule the lawful decisions of the judiciary. It flows from that that the Home Secretary does not advise the exercise of the Prerogative unless one or more of the following considerations arises.
If since the sentence some material facts or considerations have come to light which were not before the court, then it might become a question of the exercise of the Prerogative. In this particular regard the main contentions that have been made to me in this case in favour of the exercise of the Prerogative are the importance to the freedom of the Press, of respect for the confidentiality of journalist's sources of information, and the argument that journalists should not be punished for a conscientious adherence to that principle. Both those contentions were fully—and, if I may say so, most ably—argued before the court by counsel for the journalists. It is quite clear that the courts were fully seized of them 761 when they reached their decision. They have not in any way come to light for the first time since the sentences were passed and confirmed.
It has also been represented to me that there is a further consideration, and a new consideration. It is said that until these particular cases were decided it was the common belief of journalists that they could not be compelled to answer questions of the kind that were put to them by the Tribunal. It is argued that, now that the law has been clarified by these decisions and has received the widest publicity, journalists will in future know clearly how they stand. The argument goes on that, this being so, the law has been sufficiently vindicated and it is unnecessary—it might even be wrong—to punish the two journalists in the way they have been punished.
I say two things on this point. First, it appears from the reports of the proceedings that counsel for the journalists put forward a contention that was very much on these lines to the Court of Appeal. To that extent, therefore, it is not a new argument. But in any case, if the argument is that the law has been clarified and journalists will in future know what they have to do to comply with it, I must say that it seems not unfair to suggest that the conclusion to be drawn from this is that remission of the sentences would be justified if the two journalists complied with the law. This, of course, is the view that has been taken all along by the courts. It is one on which I would immediately act if the circumstances arose.
The courts have from the very beginning contemplated that there would be a case for remission if the information which the Tribunal requires were to reach it from another sources, even though the journalists remained silent. Here again, I would be ready at any time to take that into account. As I said in an Answer I gave a couple of days ago to the right hon. Member for Easington (Mr. Shin-well), the Tribunal has not in fact so far received any information such as to alter the situation in this respect. Lord Radcliffe himself authorised me to say that.
It is also contended that public opinion has formulated itself and expressed itself since the enforcement of the sentences. It is contended that the 762 public as a whole, not merely the Press, is shocked at the sentences and that this is a new factor I ought to take into account. The strength of this factor, the extent to which public opinion as a whole is shocked, is something which each right hon. and hon. Member must judge for himself. I can simply report to the House my own experience, both as Home Secretary and as a constituency Member. As Home Secretary naturally I received a good many representations from the National Union of Journalists and their branches. From ordinary members of the public who have communicated with me up till yesterday, and disregarding the anonymous letters which we all disregard, I have received 51 communications in favour of remission of the sentences and 15 urging no interference. That is in my capacity as Home Secretary. In my constituency I have received two letters from organisations and none at all from individuals.
The Royal Prerogative may also be exercised in the light of compassionate circumstances which have arisen since the passing of the sentence. But these are essentially circumstances special to the prisoner, not circumstances relating to the nature of his conviction or the reason for his conviction. To give examples, they might be exceptional compelling circumstances of a family nature like the death of the prisoner's wife or husband or the fact that until the prisoner is released there is no one to look after small children. Those may be compassionate reasons for the exercise of the Prerogative. In the present cases the criteria for remission on compassionate grounds do not seem to apply. From one point of view I am sorry to say that. From another, I am glad to say it.
Finally, it is urged that, regardless of all other considerations, I should consider advising the exercise of the Prerogative on the ground that the judge was too severe and that the sentences were excessive. Attention was called by my hon. Friend the Member for Gravesend to the Daily Mirror case of 1949. It is for the courts to consider these matters. It is not for the Home Secretary to seek to align one set of sentences with another set of sentences. There is no reason whatever why the courts should not have been as fully informed as anybody in the House about sentences which 763 had been passed in similar or related cases in previous years.
I want to tell the House that during the last war certain sentences imposed by magistrates' courts under Defence Regulations were afterwards mitigated by the Prerogative for special reasons. There have also been a few cases, most of them war-time cases, where the Court of Criminal Appeal actually represented to the Home Secretary that, while the court did not feel able itself to interfere with the sentence, it thought that there was some case for remission, and remission was granted. But, apart from a very few special cases like these, none of them occurring in recent years, it has never been the practice on grounds of excessive severity of a sentence to use the Prerogative to reduce sentences imposed by the higher courts and upheld on appeal.
I have given the best thought I can to all these matters. These, again, are heavy personal responsibilities on a Home Secretary. It certainly gives me no pleasure to know that these two men are in prison because they feel unable to give answers to certain questions, but I am afraid that my conclusion must be that, on the information at present before me, I can find no grounds for recommending the exercise of the Prerogative. I hope I have made it perfectly clear that I am perfectly ready at any time to give the fullest consideration to any new material evidence or developments, but on the information at present before me that must be my conclusion.
§ 12.56 a.m.
§ Mr. Harold Wilson (Huyton)
I had not intended to intervene in this debate, one good reason being that I have not heard much of it. Having noted the names of the hon. Members who have spoken, I think I can form a fairly clear view of what must have been said, and I am sure that the House will understand that, having listened to the speech of the Home Secretary, one has a great temptation—an irresistible one for me—to get to one's feet and say a few words.
The right hon. Gentleman has spoken with great sincerity on the issue that has been debated tonight, and we always expect that from him. We also understand that he has been on duty for a long time today and we understand 764 the difficulties he is having. Thus we appreciate the fact that he is still with us.
However, I cannot feel that his speech has dealt adequately with the subject before us. I have heard many attacks made on the Home Secretary in the past few months, many of them fair and some of them perhaps unfair. He has been accused of many things. I have a great personal regard for the right hon. Gentleman, as I am sure have all hon. Members, but one of the things he has never been accused of is recognising a principle when he sees it. I think it fair to say—and his speech tonight is proof of this—that however broad or vital a principle may be we can trust the Home Secretary to reduce it to a narrower issue.
That is what has happened tonight. We have had a fair statement of the principles which a Home Secretary must follow before recommending the exercise of the Royal Prerogative. With great respect to him, that is not the issue principally before the House now. Hon. Members have spoken on the principle and I do not intend to go into its details. I am sure, however, that all hon. Members take the view that we need to debate this matter with very great seriousness when we have the Report of the Radcliffe Tribunal before us, whenever that may be.
That will raise some big issues and the principal one, despite the rather extraordinary reversal of priorities in the terms of reference which the Prime Minister proposed to us, is the security of the State. That was not the principal issue in the Prime Minister's speech when we debated the establishment of the Tribunal. Other issues will obviously also be before us, but one can say, on the basis of Press reports of the Tribunal—and it would be wrong to prejudge anything until we have had the full Report—that they will include the behaviour of individual members of the Press and a whole series of other questions which we will need to debate with the utmost seriousness; assuming that that Report will come before us, and we have had no guarantee of that.
I have made it clear that my hon. Friends and I are withholding our final judgment on some of these issues until that Report is before us. Until then we cannot judge whether the security of the 765 State is involved in the refusal of journalists to give their sources of particular items of information.
I do not think that the House as a whole can decide whether the refusal to give this information was vital to the security of the State. All we have is the decision of the Tribunal itself that, in its judgment, that was the position. Following that certification, the High Court has made certain judgments about the responsibility of these journalists who are now, as the Home Secretary has said—and we accept from him that he does not find pleasure in it—in gaol as a result.
If we can widen the whole issue from the very narrow consideration he put before us, I want to put it to him that we in the House of Commons are responsible for those two men being in prison tonight. That is what we have to recognise. I think that I recall hearing the Attorney-General, whom we are glad to see with us even at this late hour, saying in the House a few days ago that this sort of problem has not arisen in the ordinary conduct of the courts of justice but has arisen either in relation to certain Select Committees, for example, the Marconi scandal, and things of that kind, or in relation to investigations by tribunals. I hope that I have not misrepresented the Attorney-General.
There is something very odd about that. It means that our courts of justice have functioned for several hundred years without this question being raised as a question of principle at all, so it is very odd that it should be raised either when we have a Select Committee or a tribunal established under the special procedures of this House. This, I should have thought, would suggest to all hon. Members that we have some very hard thinking to do.
The first thing we have to think of is whether the whole tribunal procedure is right. This aspect was raised by my hon. Friends in the debate on the Motion establishing the Radcliffe Tribunal, and it was argued very cogently by them. Perhaps many of us have not had occasion to call the procedure in question, and the Act of 1921 is certainly in force, but after some of the experiences of the past few months—perhaps I should say over the past few years—some of us are begining to won- 766 der whether it is not time for the House to set up a full-dress investigation into whether we should have these tribunals at all, or whether some other form of inquiry is desirable.
Second, if there are to be tribunals, we must ask ourselves whether it is right that this House should delegate to judges the duty of deciding on certain issues where there is a prima facie clash between questions of security, on the one hand and, on the other, the tradition of the journalistic profession. I am not sure whether that is a question that ought to be left to judges—not at all sure.
This House has always had a great respect for our judges—after all, we pass Measures practically every week of the year, and put enormous jobs on the High Court judges in interpreting the sometimes rather obscure verbiage we incorporate into Acts of Parliament, and none of us would underestimate their job. In the main, when the decision is not on a justiciable issue—I keep hearing my hon. Friend the Member for Manchester, Cheetham (Mr. H. Lever) murmuring "Hear, hear" so often as to to suggest that he must have said all this before I came in, in which case I apologise—but a matter of construing the public interest, then, with great respect for Her Majesty's judges, it should be a decision by this House and not by the judges.
I have always had the very greatest doubt whether the House was right in the question of restrictive practices to refer the question of public interest to the Restrictive Practices Court. Many of us expressed that view in our debates on the legislation about the Restrictive Practices Court. We laid down some ideas about what the national interest is, and we then left the judges to construe it. That was wrong. Major decisions on economic policy and on where the national interest lies are not for the judges but for this House, and this House should not run away from the responsibility of deciding. That may be true, and I think it is, and I am raising this no more than as a query whether judges, in the last resort, should have to decide this question of public interest in relation to the conduct of tribunals.
We have experience of Select Committees. Until last week or the week before I was chairman of one of the 767 most powerful and certainly one of the oldest Select Committees of the House, the Committee of Public Accounts. I shall always remember my three years as Chairman of that important Committee. That Committee could not function unless we had power to get the evidence and information required by the Committee for examining the conduct of public expenditure as recorded in the Appropriation Account. There was one moment of time during my chairmanship when there was some doubt whether we were going to obtain that information. I referred to the circumstances in the debate on the Committee of Public Accounts on, I think, 30th November, 1961, but my memory is notoriously unsure on these points. It will be in HANSARD anyway.
On that occasion I said that if we could not get that information we would have no hesitation as a Committee in asking the House to give us the powers to obtain it. But the essence of that point was that where a Select Committee appointed by the House could not get the information and the Committee was not given the power to require it, the Committee was required to ask the House for those powers. If that is considered right by the House in relation to a Select Committee, a fortiori when we delegate powers to establish facts and give powers to a judicial tribunal, where there is a clash between the discovery of truth on the one hand and the scruples, conscience, principles or whatever phrase we may use, of witnesses before the tribunal on the other, and where the tribunal is unable to establish the facts, we ought to have a procedure under which the tribunal concerned would ask the House for instructions. I am suggesting this and putting it forward very tentatively only because I do not think that any of us can have final views on this until we have the Tribunal's Report.
I suggest, therefore, that just as a Select Committee thwarted in its search for truth, as it might well be by the refusal of witnesses to give information, has to ask the House for powers, this might well be the right answer in relation to a tribunal which cannot get information from witnesses before it. As for the question of the liberties of the Press, I do not think 768 that any hon. Member will be tempted to underwrite the importance of this principle to the freedom of the Press. I know that there are different views about this and there is a temptation after reading newspaper reports of some of the evidence before the Tribunal to decide perhaps rather hastily about the conduct of the Press. None of us is in a position or is entitled to judge the Press until we have the Report of the Tribunal and the whole of the evidence is published. I am sure that the Attorney-General agrees.
Whatever our views and our prejudices may be, I would feel that the House as a whole probably takes the view that while we respect the principles which have always animated members of the journalistic profession, all of us think here with deep sympathy of the right hon. Member for Ashford (Mr. Deedes) who is sitting on the Government Front Bench. I do not know what his job is. Is it Minister without Portfolio? Whatever it is, he is the propaganda officer for the Government. All of us understand the difficulties with which he is labouring in these circumstances and we have sympathy for him.
All of us feel that the approach of the Press to this problem is sincere and important, and none of us feels that Press privilege in this matter could ever be absolute. I cannot think of any journalist I know who, for example, if involved in a murder trial where his silence might mean the condemnation of an innocent man would remain silent. None of us would accept, and no journalist would expect, insistence on a refusal of sources if the result of refusing to give a source meant that an innocent man would be executed. This principle, therefore, cannot be absolute; it is a question of degree and of decision in each individual case.
What I am suggesting to the Home Secretary—and I am taking a broader point than the rather narrow canvas on which he disported himself a moment ago—is that the House has a duty to consider the broad principles which are involved. All of us recognise that the public interest must be paramount. This point was made by the Attorney-General at Question Time. But it is we as a House who are responsible, first of all, for the Tribunals of Inquiry Act. Admittedly it is the law of the land, but the fact that the law has not been changed is the responsibility 769 of the House if there is something wrong with it. Secondly, the establishment of an individual tribunal is the responsibility of the House. No tribunal could even sit if the House had not passed a Resolution requiring it to sit. Thirdly, the terms of reference of any trbiunal are laid down by the House. Sometimes very dubious terms of reference are laid before us. We are not in a position to amend them. They are laid before us and we have to accept them.
Since we have this treble responsibility and it is under that treble responsibility that two journalists are in prison tonight, we have a duty to consider whether this responsibility should not be exercised in a different manner. I come back to the point which I have made and which I hope the Home Secretary and the Attorney-General, who has been listening to the debate, will consider seriously after we have the Report of the Radcliffe Tribunal—whether we should recognise that if the House lays this responsibility on a tribunal of seeking the truth, then any failure of the tribunal to reach the truth should be referred back to the House.
In practical terms this would mean that we should not have journalists or any recalcitrant witness sentenced while the tribunal was sitting. That is what is wrong with the present procedure. We must look at it again. None of us can judge—those who have spoken tonight are not in a position to judge—whether Lord Radcliffe and his colleagues were right to certify that this evidence was required in the conduct of their inquiry. We have every confidence in Lord Radcliffe and in the Tribunal, but in the last resort the House should judge whether the decision is right. We cannot judge that until we have before the House the Report and the evidence of the Tribunal. We ought, therefore, to consider the proposal that where the Tribunal in the course of its inquiry finds that some witness refuses information considered to be germane to the inquiry, then when the final Report is available, and only then, this House should judge whether an offence has been committed.
We delineate the offence. It has nothing to do with the ordinary law; it does not happen in the ordinary courts of justice, as the Attorney-General said. We have laid down procedures under which 770 the High Court is required to commit for contempt journalists or any other recalcitrant witnesses in advance of the Report of the Tribunal being presented to the House. When we received that Report the House could fairly judge; it could read the evidence and the Report and could say at the end of the day, "The tribunal was right. It has been frustrated in its task by the refusal of this witness, and we as a House hereby resolve that that has occurred." Then, and in my view only then, should the proceedings for committal be introduced.
There is another alternative. I recognise that if we did as I have suggested, certain inquiries might be broken off in the middle because they could not get at the truth. One could imagine a tribunal reaching a stage, half-way through its work, at which one vital piece of evidence was required for the tribunal to pursue a whole chain of evidence, and at which that vital piece of evidence was withheld because of a recalcitrant witness. We have found the same thing happening in Select Committees. We were very near it on the Public Accounts Committee in relation to pharmaceutical expenditure and the withholding of information by certain American subsidiaries 18 months ago. If the Public Accounts Committee had been held up half-way through its work, it would have stopped its work and come back to the House to ask for instructions and for the recalcitrant witnesses to be dealt with so that it could get on with its job.
There might be a case for saying that where a tribunal, in its wisdom, cannot complete its inquiry because it is obstructed by a witness, it should stop its inquiry and make an interim report to this House, which originally established it and endowed it with its powers. Then, it would be for the House to say whether, in all the circumstances, on the basis of the interim report, there was a case for proceedings being instituted.
This House should be very jealous of delegating powers of punishment in a case where the inquiry has been established by this House. There is essentially something cowardly about this procedure, under which we set up the tribunal, determine its terms of reference and then leave to an unfortunate tribunal the job of deciding whether 771 there has been recalcitrance, and handing it over to the court, almost as an automatic matter—the Lord Privy Seal would describe it as a matter of automacity—for the High Court then to commit these journalists or other recalcitrant witnesses to prison. There is something fundamentally wrong about this and I hope that when we get the Report, we shall be able to consider it.
Every week that passes means that these men are in prison without, apparently, any means of securing their relief from this punishment, for which I, as one Member of the House, feel a deep sense of responsibility. I hope that before the publication of the Report, the Government will consider as a matter of urgency, first, whether the tribunal procedure is right; secondly, whether this House can really hand over to judges and other legal members of a tribunal these non-justiciable issues about the public interest which, in the last resort, should be a decision for elected Members of Parliament and not for judges; and, thirdly, whether, if a tribunal set up by this House to inquire into the truth on a matter of vital national interest is frustrated by a refusal of evidence, the right course is not for that tribunal to suspend its activities, to report to this House and to require an affirmative Resolution of this House that the public interest is being interfered with before committal proceedings can be instituted.
These are, at least, my first thoughts on this issue. None of us can have final thoughts until we have seen the Tribunal's Report, but I should not like this debate to end without thought being given and awareness being shown on the part of the Government that these vital issues are to be considered before the House has to take a final judgment, which we shall have to take when the Report of the Radcliffe Tribunal is before us.