My Lords, I strongly support the Bill, which was so effectively and comprehensively introduced by the noble Lord, Lord Ramsbotham. Any miscarriage of justice is a travesty in human terms and in its impact on the reputation of justice, and it is right that we have the most effective measures in place to assist those seeking to redress wrongs. I have only one point to make. It relates to the protection of journalists’ sources, which the noble Lord, Lord Beith, mentioned just now. I must declare my interest as executive director of the Telegraph Media Group and draw attention to my other media interests in the register.
The proposed extension of the commission’s power to obtain documents is understandably very broad. The reasons for that have been set out absolutely cogently, but we in this House should always be wary of such sweeping changes by scrutinising them properly and ensuring that they do not cause mischief later on. In doing so we should consider whether, in a small number of sensitive areas, such a power should be subject to some clear safeguards. One of the most obvious, as the noble Lord, Lord Beith, said, is access to journalists’ sources of information, given that the Bill—as was made clear in another place—extends to news agencies and,
“journalists and legal departments of newspapers”.—[Official Report, Commons, 5/2/16; Col. 1243.]
In this House, I do not need to dwell on the importance of the protection of sources, which is a vital component of press freedom and indeed of the proper functioning of democracy. But given that the Bill gives the CCRC a right to access sources and therefore potentially undermines that, we should be careful to legislate in a way which minimises the possible damage. Sources are of course already under assault, not least from the misuse of the Regulation of Investigatory Powers Act. The same issues are being robustly debated in the context of the new draft RIP Bill that is before Parliament. We should not do anything that adds to those burdens. This is especially true in the case of the CCRC because, paradoxically, the investigative journalism which has uncovered many miscarriages of justice can be so easily undermined where the confidentiality of sources is called into question. New evidence which could be of real help to the commission in its vital work could be less likely to come forward if people, including whistleblowers, know that their identity might be revealed.
I should make it clear that I am not proposing in any way that journalists and media organisations should somehow be exempt from the Bill. If it is to apply to every private individual and private organisation, reporters and publishers cannot and should not be excluded from that. But we need to see some safeguards which go rather further than the slightly inchoate ones that the Minister in another place put forward. There should be clear requirements on the face of the Bill that orders for the production of material made against private individuals and private organisations where the right to freedom of expression is engaged—and other fundamental rights may fall into that category—should be subject, at the very least, to the same safeguards required under the Police and Criminal Evidence Act
procedures for journalistic material. That means that, before any order can be made, the court must consider: whether the material is of substantial value to the matter under investigation; that it is impossible to obtain it by other means; that the specific disclosure would be in the public interest in the context of the investigation; and the circumstances under which it is then held by the person in possession of it. In those circumstances, the media should also have prior notice of the application for the disclosure order and the right to make representations to the court.
Such a measure would ensure that the CCRC was still able to do its job more effectively in the way that the noble Lord, Lord Ramsbotham, set out, and as this important Bill envisages. It would also ensure that the vital issue of the protection of sources, and therefore the importance of press freedom, is always taken into account before any potentially damaging decision is made. In my view, it is simply a question of balance. Are the noble Lord, Lord Ramsbotham, and my noble friend the Minister prepared to look at such issues during Committee to ensure that we do not do anything that undermines robust, investigative reporting in the public interest?
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