That is all very well but the Bill is going backward rather than forward. This Bill endeavours to give committees ample power but they will not have that power if a committee attempts to force journalists to disclose a source, although they will not. The legal counsel for our committee suggested that ultimately the courts would widen the scope and allow journalists some element of journalistic privilege. That may ultimately be the case but we have the opportunity to effect change now and we should take it. This situation relates to the case of Goodwin v. the UK. Mr. William Goodwin, a journalist, was threatened with imprisonment in 1989 for refusing to disclose the identity of a source who provided him with information relating to a story on Tetra Business Systems, a computer software company. Mr. Goodwin was a graduate trainee on his first job, examining the financial restructuring of the Tetra firm. He was fined £5,000 for contempt of court and, after a number of successful appeals, he won at the European Court. The NUJ provided the funds to take his case to that court and in September 1993 it found in his favour. The court ruled that the order to reveal his source constituted a breach of his right of freedom of expression as guaranteed by Article 10 of the European Convention on Human Rights. If we proceed on this basis with the Bill and do not allow journalists this privilege before our committees, we could be in breach of that Article.
The Goodwin case was again referred to the European Court in April 1995, when the British Government declined to reach a settlement. This case was a very important one in the area of journalistic privilege. Section 10 of the Contempt of Court Act in England states that no court may require to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which he is responsible, unless it is established to the satisfaction of the court that it is necessary in the interests of justice or national security or for the prevention of disorder or crime.
The Government has spoken honeyed words about attempting to redress cases where journalists are dragged before courts from time to time. We have had umpteen instances since the Kevin O'Kelly issue. Recently, a reporter for The Star was lucky to get away without having to disclose his source. It would be detrimental to the power of our committees and the status of the House if a journalist with whom Members might be friendly on a day to day basis was pressurised at a committee in an attempt to force disclosure of information. Such a journalist might then go to the High Court for a determination as to whether he or she needs to disclose the source and then we are in the area of contempt of court.
We must accept that journalists regard it as a right of theirs not to disclose sources. In France, a journalist who appears as a witness in a civil or criminal case concerning information gathered in the course of journalistic activities has an absolute right not to disclose his or her source. In Austria, journalists have a right to refuse to answer questions referring to an author, contributor or source of information. In Germany, under the lander laws, journalists are protected from disclosing their sources even when they are suspected of involvement in a criminal offence. In the Netherlands, the courts have recently shifted towards offering journalists the right to protect their sources and in Norway, because of case precedents, it is extremely unlikely that a court would order the disclosure of sources. In Sweden, a journalist who reveals his or her source without the consent of the source may be subjected to criminal prosecution if the source demands and the First Amendment of the US Constitution gives US journalists and their sources significantly greater rights to protect the identity of their sources than British law does.
We are going against the flow in this matter. This Government has spoken of openness, transparency and accountability, but if we insist that a journalist discloses a source, the committees will fall into disrepute. Article 10 says that everyone has the right to free expression. This right shall include freedom to hold opinions and to receive and impart information without interference by public authorities and regardless of frontiers. The Article goes on to say that the exercise of these functions may be subject to certain formalities, conditions and restrictions necessary in a democratic society in the interests of justice or national security or to prevent disorder or crime.
That would not apply to a journalist coming before a committee of this House. By ruling in favour of William Goodwin, the European Court established in principle that the right of journalists to protect the identity of sources is a fundamental part of the right to freedom of speech, and that right is as defined in the convention I have read from.
The Minister of State probably wants to accede to our request, but forces greater than her are working here, be they the permanent Government or, as I suspect, the non-permanent Government. It is their view that this should not be allowed. In 1983, The Guardian was ordered to disclose confidential documents in the interests of national security and the British courts have tended to be very restrictive in this regard, going against the spirit of Article 10. The various bodies interested in this matter, such as the National Newspapers of Ireland, made submissions to the Constitutional Review Committee. They made the point that this should be enshrined in our Constitution. The review group recommended that Article 46º1º1 should be replaced with an Article modelled on Article 10 of the European Convention on Human Rights, of which Ireland is a signatory.
I cannot understand why the Minister of State is not accepting my amendment, given that we have signed this convention. The Minister cited the Constitutional Review Group saying that the Constitution should be changed in order to mirror Article 10. Adoption of Article 10 would allow journalists to do what they have to do normally and allow them to come before committees without being obliged to reveal their sources. That would be advantageous to the investigative system of our committees.
The provisions of Article 10 are already fully understood by Members of the Oireachtas, lawyers and citizens. Its inclusion in our Constitution would be following the trend of our European as opposed to our British neighbours. The vast majority of European countries have provided for journalistic privilege.
In the 1981 British Steel Corporation v. Granada Television case in the United Kingdom Lord Salmon said:
The freedom of the press depends on the immunity from disclosing their sources. Were it to disappear so would the source from which its information is obtained. The public would be deprived of much of the information to which the public of a free nation is entitled.
I accept that there are drawbacks in relation to journalistic privilege, that there may be some unscrupulous journalists, but our general experience of cases already brought before the courts in regard to journalistic privilege has been that the vast majority of our people have accepted that the journalistic profession has behaved in an honourable manner in regard to disclosure of its sources.
This general issue is a very important one and has been the subject of discussion in committee. I recommend that the Minister accept my amendment. I know it has the agreement of the Progressive Democrats and that some members of the different parties in Government are also of the view that we should enshrine this provision in legislation. It ill behoves this Government, which espoused openness, transparency and accountability, not to accede to this request. If a journalist refused to disclose his or her source of information or, worse still, if a journalist refused to appear before a committee, he or she would have to be directed to give evidence. How would the Minister propose to address circumstances in which a journalist found himself or herself in that position? The reality is that committees would divide on political lines as between Government and Opposition and we could be confronted by an extreme difficulty vis-à-vis relationships between Government and Opposition and the media.
I exhort the Minister to think again. I suppose I will be informed that the Government has refused to accede to the request to allow some journalistic privilege before committees of this House. If that is the case, shame on this Government that came into office on the basis that it would reform the institutions of State to render them more relevant to the electorate. It would be a disgraceful move to prevent journalistic privilege being included in this Bill. I hope journalists are taking note of the fact that this Government is not acceding to this request, thus demonstrating for ever more the fallacy that it is open, transparent and accountable.
We are not doing ourselves any favour if we allow circumstances to arise in which we may find ourselves in weekly confrontation with journalists at committees on whether they should be forced to reveal their sources. Perhaps the Minister will explain why the Government is not accepting this amendment, why it is insisting that any journalist who comes before this committee will be obliged to reveal his or her sources.