My Lords, I join noble Lords who have thanked the noble Lord, Lord McNally, for the way in which he has approached this and the kind of solution that may now be very close to fulfilment. To be candid, it is not a position that I thought likely to be one of the outcomes, but I can see a great deal of the sense of it. I can also see that it fulfils part of his aim that there should be greater clarity for people who need to use this law; that there be a better, more effective law; and that we should not end this process with the same lack of reputation in this general field from which we have perhaps suffered in the past.
I will draw several arguments about the heart of the Bill together in a moment. I understand the strength of the proposition that if judges are to decide, in the ways that they are capable of deciding, that would be better than providing an extensive checklist.
In his opening statement, the noble Lord, Lord McNally, said that he believed that the courts and the judges would have a mind to these kinds of things as they formulated their views. That is fine up to a point. The point where I think it needs a little more testing is that it would be helpful if, when the law is on the statute book, there was a sense both of what Parliament believed were critical issues and of what the Government had said in their responses were critical issues. This is not just a matter of what the legal opinions are; views are now widespread among the public of the United Kingdom about what it is or is not legitimate to do.
Let me turn directly to Amendment 14. A short while ago, the noble Lord, Lord Phillips of Sudbury, said that there may be a clearer enunciation of at least one part of it. I do not think that he was talking specifically about his amendment; I think that he was making a general proposition about clearer enunciation. Indeed, I do not know whether his amendment is now a matter of fact or opinion, as it may or may not have been withdrawn.
Let me look at the two words “public interest”. When somebody uses those words to me, I understand them to mean that there is an entitlement by the public to learn of matters that are of the public interest in a broad sense—knowledge of policy practice and the debates on all those matters, what might be wrongdoing, malpractice or malfeasance, many aspects of social and cultural life, scientific knowledge and other scholarly knowledge. There is probably a long list and my point is not to produce a checklist. That is what I broadly understand “public interest” to mean.
What has also become entirely clear over many years is that many of the editors of newspapers—and this was also clear in the evidence that they provided to Lord Justice Leveson—do not think that that is the whole of what is meant by “public interest”. They have a fundamentally different view of what public interest is. I am not thinking of the things that Lord Justice Leveson and others have said were criminal intrusions into the privacy of individuals. Those are covered by criminal law, which is more or less adequate, although that, too, is probably a matter of debate.
My point is that common practices in parts of the press and parts of the culture of the press mean that there is a view of what is in the public interest and that it means whatever those editors believe might
interest the public, whatever it is. Consequently, they can libellously or otherwise intrude into aspects of private life—as I said, I am not going into the criminality of the means by which they obtain the information—so that, for example, if they have discovered by one route or another that someone has a medical condition that they are discussing with their mum, that becomes a matter of public interest in the sense that the public in a prurient way may be interested and that it will unquestionably sell more copies of a newspaper if it is in that newspaper. That is entirely unreasonable. In some cases, of course, that may just be a matter of intrusion of privacy, but it is clear that on occasions it could have a defamatory effect on the person who is being written about.
I am not in any sense content to believe that the simple words “public interest” will convey to Paul Dacre that he is not, as he seems to believe, the ultimate arbiter of anything and everything that we should consider to be in the public domain. That should not be the last word on this and we should not allow it to be. That applies, too, to the former News of the World journalists. I say to the noble Viscount, Lord Colville—