I am grateful to the noble Lord for his intervention. Unlike a previous intervention that he made—which I thought had the distinct shape of a lifeboat being offered to someone who refused it—I am not going to reject his offer to keep my head above water. The oxygen of an intervention can quite often be helpful.
I am of course willing to discuss the mechanism for this further. I am conscious enough of the necessity sometimes not to insist on the form of words that I alight upon, allowing room for some manoeuvre. I would just make the argument on behalf of our Benches that it would be helpful to the general direction of the Bill, and on the effect that it will have on people’s behaviour, if we send a strong message in this clause that we are moving so far away from this checklist that we are prepared to countenance any relevant circumstances as being important to whether something is in the public interest or whether they reasonably believed it to be so. I am pleased that the Minister has used this form of words himself on more than one occasion, particularly when he was explaining the expectation of what the courts would do in applying this particular test.
I turn to the only other amendment apart from the Government’s three amendments, which I support. It has survived the contributions of those in whose names the amendments appeared under in the Marshalled List. It seeks to replace editorial judgment with the publisher’s judgment. I entirely understand, from the point of view of those at the sharp end, why they do not want to be hemmed in by something that is too closely associated with only one form of media. They are looking for a generic term that covers all the forms of publishing that now exist. Everyone involved in those forms now has responsibility for putting information into the public domain. I respect entirely the argument of the noble Lord, Lord May, on this.
I noted that in the Minister’s introductory remarks—I hope that he will find a few moments to reinforce this—he referred to the phrase “editorial discretion” as intending to give latitude to the judgment of how a story should be presented. From that I took the view that “editorial” is an adjective relating to an action rather than a job description. I think that it already covers all the different kinds of people who are, in legal terms, “publishers”. If that can be made crystal clear in an easily accessible way, the concerns that were properly expressed by those who think that perhaps this is too newspaper-oriented in its terminology can be dealt with.
I am grateful for the contributions of all noble Lords, and I hope that they will forgive me if I do not mention them individually. They have substantially enriched our debate, even if only two supported the amendment in my name and that of my noble friend. I am grateful in particular for the support of the noble Lord, Lord Mawhinney, because he comes at this with a view that is born out of his intense relationship with the issue over a concentrated period as chair of the Joint Committee. He speaks with authority, so when I get support from that quarter, I value it. The same gratitude applies to my noble friend Lady Bakewell for her support. She speaks for many people who have to make these decisions without constantly having lawyers by their side, and sometimes in comparatively difficult circumstances. I am grateful to her for saying that my amendment would be of assistance to them.
I have little to add and I will not go into the detail, but on the point made by my noble friend about the definition of “public interest”, I would draw the attention of the Committee to the Guidelines for Prosecutors on Assessing the Public Interest in Cases Affecting the Media, which is published by the Director of Public Prosecutions. Paragraph 31 on page 9 gives a set of examples of conduct that is capable of serving the public interest. It is designed to instruct prosecutors on how they should approach decisions that affect the media, particularly on the question of whether a prosecution is required in the public interest. These considerations are helpful because they clearly show the distinction between what the public are interested in and what is in the public interest. At some stage when we come to consider guidelines or Government expressions of what they think they have achieved with this legislation, drawing on that sort of information will be helpful when addressing the issue identified by my noble friend Lord Triesman. It is a serious and important point in the challenge of finding a balance.