When I said “on other occasions”, I meant on other parliamentary occasions. If others want to talk about it and they are in order today, I am sure that you would be very pleased to hear what they have to say, Mr. O’Hara, but I say for the third or fourth time that I am specifically referring to journalistic activity.

That is not necessarily a surprising thing to do because the Human Rights Act 1998 makes specific reference to journalistic activity. When we have a collision, as we frequently do, between competing rights—the right of free expression and the right of privacy—it is important that we as law makers get it right when we have the opportunity. Certainly under the common law, but now under the European convention where articles 8 and 10 come into play, there is that dispute between free expression and privacy. Under clause 75 and the underlying legislation, the Data Protection Act 1998, we have a similar collision.

The Secretary of State for Justice has acknowledged that difficulty. Recently—I do not know when; I should have checked, but it may well have been on Second Reading—he said that there were concerns about the misuse of personal data and that new rules in the Bill had caused concern because they might impede legitimate investigative journalism. As far as I can remember, he did not come up with any solutions for dealing with that difficulty. Relatively recently—in October—the Prime Minister also acknowledged it. You will remember, Mr. O’Hara, that the Prime Minister appointed the editor of the Daily Mail, Paul Dacre to review the 30-year rule on releasing secret papers. In a speech on liberty in modern Britain, the Prime Minister also said that a review of data protection law would be carried out by the Information Commissioner, Mr. Richard Thomas, who will also seek to protect legitimate investigative journalists from a planned crackdown on the trade in personal data, such as bills and health records. The Prime Minister announced a three-month public consultation on extending the scope of the Freedom of Information Act 2000, which allows the public to request confidential information from public bodies.

Why has clause 75 been made part of the Bill before the consultation process that was announced in October by the Prime Minister is completed? The answer to that may well be, as it so often is, that Bills are not implemented. Therefore, if this provision is passed into law, it may not be implemented until after the consultation process is complete. If it is, I suspect that the Government are putting the cart before the horse.

What we want, certainly in relation to journalistic activity, is a proper balance and sense of proportion. The Bill should allow for vigorous, journalistic and investigative activity which is in the public interest, and/or which the investigating journalist considers to be in the public interest during his investigation, while at the same time affording all proper protection to the data subject.

As I understand it, since 2004 there have been 26 prosecutions under section 55 of the Data Protection Act 1998, brought by the Information Commissioner. Of those prosecutions, only four have been in the Crown court—the others have all been in the magistrates courts—and only two have resulted in fines of more than £5,000. Where is the pressing social need to introduce, on summary conviction, a term of imprisonment “not exceeding 12 months”, or

“a fine not exceeding the statutory maximum, or...both” but, “on conviction on indictment”— in the Crown court—

“imprisonment for a term not exceeding two years”,

or an unlimited fine? We must ask whether this measure is necessary and proportionate when we are dealing with legitimate investigative journalism, and when there is a difference between the civil and the criminal regimes—the civil regime as it currently is, and the criminal regime as it is intended to be under the Bill.

In making these remarks, I am relying upon assistance from the Newspaper Publishers Association, the Newspaper Society, the Periodical Publishers Association, the Scottish Newspaper Publishers Association and the Society of Editors. They have responded to the consultation paper, “Increasing penalties for deliberate and wilful misuse of personal data”, issued by the Government and the Information Commissioner. My concern, which is both informed by my own practical experience as a newspaper lawyer and based upon the advice of those groups, is that to introduce without justification a disproportionate sanction capable of discouraging the press from investigating matters of legitimate public concern, could have chilling effect on press freedom in this country.