then clause 13, which became section 12. and on the second page of 21 at the top, you told the commons, as the committee will know, there was concern in some sections of the press that the bill might undermine press freedom and result in the privacy law by the back door and you said that was not the government's view and you dealt with that issue. but on the issue of prior restraint and what became section 12, the third paragraph. >> you say we recognized the concerns expressed in the press, as i've made clear, for example, in the exact impan on the churches, we're anxious, et cetera, to deal constructively with it. in light of those concerns, we decided to introduce a new clause specifically designed to safeguard press freedom. we thought long and hard about it and this is clause 13. and then at page 6 of 21 towards the top of the page, you make it clear that there were

discussions which involved you, lord williams, the late lord williams and lord wakeham. in the third paragraph, the new clause, which is number 13, was drafted in consultation with lord wakeham and representatives of the national and regional press. they had given it a warm welcome. so the upshot is, is that part of the explanation for the genesis of section 12, consultation agreement, if you like, that you reached with lord wakeham, who may well have been speaking for a large section of the press, is that fair? >> yes. certainly was speaking for a large section of the press. whatever his position in the house of lords, he was chairman of the press commission. >> it's probably the other way around, isn't it? he couldn't really do as was chairman of the press complaints commission, which is independent. i thought he was doing it in his personal capacity.

>> my recollection is quite a lot of the correspondence was signed by him in his capacity as chairman of the pcc. >> yes. well that itself raises a not uninteresting question. >> yes, i -- >> i'm not going -- of historical value only. >> yes. but it wasn't a piece of private enterprise by lord wakeham. there would have been no purpose served in busy ministers spending their time talking to lord wakeham if it was just a personal foible. he had a very influential position and he was planning to speak on behalf of the press. yes, mr. jay, you're right, i worked on the basis that if i could square lord wakeham, i'd square most sections of the press, which is what i wanted to do. >> i understand that. and that's how it worked and it's quite clear looking at the documents that you've provided for the relevant period, that's exactly what happened. but it does raise a question

ongoing for the future as to whether that is the appropriate row for somebody who holds that position in whatever body -- >> yes, i agree. oh, i'm sorry, i've been slow. i think for the future if there is -- yeah, that if -- as there will be a very different system for dealing with press complaints. that person will, as it were, being in a quasi-judicial position. and that should be very separate from somebody who's -- to represent the wider interest of the press and the change in discretion. yes, i accept that. >> some fairly sophisticated points were made by mr. garnier. >> he always makes sophisticated points. >> i think it's fair to say

although he was quibbling as to whether section 12 would have much substance and effect, there was generally speaking cross-party support for this clause. >> yes, there was. and the added advantage of dealing with lord wakeham, because he had been a leading figure in the previous conservative administrations, and -- i mean he's -- i had a good relationship, i still do. i have a good relationship with him. i have high respect for him. his successor as chairman of the pcc been of a similar caliber, the pcc would not have ended up in the state that it is. but i don't think we ever had this explicit conversation, but i worked on the basis that if lord wakeham said yes, he would certainly be delivering the press and almost certainly be delivering the conservative front bench as well. and that was unsaid, but there. >> what you made explicit

though, mr. straw, was to underline your government's commitment to the need to preserve self-regulation, because we see that in the third paragraph on page 6 of 21 and indeed on the fourth paragraph, would you agree? >> yes. and that was a view we were taking at the time. i mean that the pcc had been improved -- i mean some good evidence, not because of the way in which lord wakeham was operating, that the pcc was becoming effective. i say we all knew that we were going to end up with the law of privacy, and anyway, we all had loads to do. why at that stage start on an agenda which had been unformed about how to regulate the press. there would have been no point. it certainly wasn't in my mind. >> it certainly wasn't a labor

party manifested commitment in 1997 and the death of princess diana the end of august, i think 1997, did that cause any change of thought or not? >> not -- not directly. no. the sort of media surrounding it was terrible, but not directly. and i think insofar as we had that conversation in government, the view was let's see where this gets to. the pcc plus a developing law of privacy might work. >> some would say it's a traditional british approach. let's see how the law develops. you know it's going to move in a certain direction. and the ramifications of that can be seen over the forthcoming years. >> yes.

if i may say so, mr. jay, it's not a bad approach to do things gradually, because the risks of disaster are reduced. >> okay. that probably covers the issue on section 12. now, i address now the amendment to the data protection act in 1998 following the reports of 2006. you picked this up, mr. straw, in paragraph 82 of your witness statement. this is our page 02555. mr. thomas is arguing very strongly for increasing the

penalty for a breach of section 25 from a fine only to a term of imprisonment. you say in paragraph 82 hm government agrees. >> yes. >> can you tell us why, please, mr. straw? >> why we agreed is because we thought the case he had made out was a very good one. that the penalty did not to be strengthened because of the evidence of abuse which he provided in that report, which was in may, 2006. i just say here i agree with this, but for the first 14 months, this was handled not by the -- i was leader of the house. i became leader of the house two days before the publication of this report in the first week in may, 2006, and stayed in that position until the end of june, 2007. so this -- the policy, therefore, is one i inherited. as it happens, i only agreed that we ought to increase the penalty.

>> was it then government thinking that it was simply a question of increasing the penalty rather than changing the test in section 55, because i think subsection 4, the rest is a purely objective one. but we know in section 78 that the 2008 act, it's part objective, part subjective, if you take into account the reasonable belief of the editor. was the government's view all we need do is increase the penalty without at the same time without introducing this part objective, part subjective test? >> the part subjective test came later. >> that was part of the ultimate compromise. >> that was, sir. it was. >> but the case -- the case for increased sanction was if it was purely financial, then the law was quite clear on comfortable territory now. the law is quite clear that you have to have regard to means.

and if people of little means broke the law in this way, then actually there was very little that could be done by way of sanction. and that was so whether you were doing it because you wanted to find out about your daughter's boyfriend, for example, or whether you were doing it for industrial or commercial reasons. >> yes, you're right, sir. you are, if i may say so, the expert on sentencing. but my own view is that -- the maximum sentences laid down by parliament, although very rarely applied by the courts, they convey a message about the relative seriousness which parliament and, therefore, the public attach to that particular transgression.

and i regret the fact that in the data protection act, which is also a bill which i put through, we had not spotted that this penalty was too late, but we hadn't. >> but if i pick up the point that was made when we were discussing this, i think with mr. graham, that actually if you're doing it for the purposes of business and at a high volume, it is something which society should disapprove of rather more than might be for those that range offenses that are purely fiscal penalties. >> no, i entirely agree. it may be, let me say, this is a

very recent thought i've had, that in the light of what we think may have happened, that the penalty itself should be higher still. i mean tougher still than two years. but certainly i think the case for having a two-year penalty was -- maximum was very strong. >> on the basis, as you really identify, that then the court is in position to calibrate the gravity of the offending and in appropriate cases to discharge or fine or pass a penalty or ultimately custodial sentences. >> indeed, sir, yes. >> as you say in paragraph 83, the press objected. when you were referring to the

press there, are you able to be more specific, mr. straw? >> well, it was -- i don't know -- the people who came to see me were mr. dakor, mrs. brooks, from the telegraph, mcclellan, a chief executive and sometimes guy black, who had been the secretary of the pcc and i think was working as an adviser to the telegraph. it was those -- those were the core. but i understood from them that they were representing the views of the national press as a whole. i had no reason to think that they weren't. >> because these were the most powerful figures either within the pcc or on the editor's code committee. was that your inference? >> i didn't say can i see your

precise credentials. they were clearly powerful figures who were representing -- >> well, you knew them and you knew that's what they were. >> yeah. it wasn't an issue. >> in paragraph 83 you refer to a meeting that the minister sponsoring the bill had on the 17th of january, 2008. we have the note of the meeting under tab 44. i don't think it's necessary to turn it up. we know mr. brett and mr. garnier had a powerful voice on that occasion. >> yes. >> then moving forward, in paragraph 84, you met directly with mr. dakor, mr. mcclellan, mrs. brooks. i don't think mr. hinton. >> mr. hinton i don't think was there, no. >> and that is referred to in a letter you wrote on the 12th of february.

exactly clear from that letter. it's under tab 46 when the meeting was, whether it was over lunch or over dinner, it may not matter much. >> i don't think the meeting was over lunch or dinner, i think it was in my office. in fact i'm almost certain it was in my office. yeah. >> we could look at the text of the letter. you write to mr. dakor. you say we're not proposing to criminalize any conduct which is not currently against the law. however, we do understand you and the media's concerns about more generally the introduction of custodial sentences for of section 55. we have no wish to curtail legitimate and responsible journalism. and when the proposed balances were being designed, it was not considered they would have that effect. we are not aware paragraph 55 has caused any problems.

this is a chilling effect since the dpa came into force. the balances were proposed and strongly argued for by the information commissioner to strengthen the protection of individuals' rights, to respect for their privacy. and then if i can look six lines into the next paragraph, but i have reviewed the proposals in the light of the important points which you and others have made. as i explained when we met, i was increasingly minded to consider inclusion of provision for the reasonable belief of someone at the time the offense was committed. i understand there will still be considerable anxiety about the potential impact of this measure. therefore there is a case of reconsidering it in a slower time. then you say alongside this, i'm faced with the overwhelming need to achieve ascent for the bill by may, 2008, when the existing legal restrictions against officers taking industrial action otherwise terminate. taking all these factors into

account, i'm making appropriate recommendation to colleagues, and i will be back in touch. so you're faced here, mr. straw, with arguably a double pincer movement. on the one hand you've got the press stirring up trouble, making the arguments you'd expect them to make. and we can analyze those in a moment. and you'd say even more importantly, you had to get this bill through by a particular kay because there are other provisions in it that were absolutely vital, is that it? >> yes. and it's obviously extremely hard for others outside or, say, for mr. thomas to comprehend, because it was my problem, not theirs. but it may be recalled that at the end of august 2007, the prison officers association called an unlawful one day national strike and they gave us 15, 1-5 minutes notice of this. it led to huge disruption in britain's jails.

it led to the firing of a whole wing of lancaster farms, it led to breakdown in order in a number of other jails and it was completely contrary to an agreement between the prison officer association had voluntarily signed, called the jirpa. please don't ask me what the acronym stands for, because i can't remember. they had voluntarily signed in return for the statutory bar on industrial action being taken from the statute book. now, they broke that agreement and also had given notice that they were going to terminate it in any event. the date of termination was the 8th of may. so absolute imperative, whatever else happened, was that i got this bill through both houses and into royal assent by the 8th of may. because we knew any way, given

the state of mind of the leaders of the poa that they would go on -- almost certainly go on strike the next day and it would be a disaster. so i'm afraid other things became subordinate to it. so that's life, that's politics. so what was in my mind at this stage was that i might have to withdraw the whole provisions to increase the penalty for this legislation and then find another bill to put it in in the following session. so that was what was going on there. >> at a convenient moment, just take a few minutes to take a break. >> okay. >> all rise. mr. straw, we understand this is, as you were, a classic case study. it had to be retained by a certain date for reasons

extraneous to the merits of section 55. had it not been for that consideration and/or the pressure that you were under by the press, would your policy position have been either adhered to the original position. in other words, just up the sentence to include a custodial penalty, or were you in fact persuaded by the merits of the argument that the subjective/objective test should be introduced? >> that's a very difficult question to answer, mr. jay, because i became persuaded. if you follow -- have to work out why you were persuaded. if i might just explain this about this deadline. the deadline not only meant that i had less time, but it also changed the balance of forces in parliament because although we had a majority in the house of commons, we never had a majority in the house of lords. and if the house of lords had

decided to block the bill, as they could have done, or to delay it, i would have then been faced with a situation with where i lost the whole of the bill or i dumped this particular part. and indeed, i faced exactly that dilemma ten years before over the crime of disorder bill where a proposal to lower the age of consent for gay people to the same age as heterosexual people was defeated in the lords, and i was about to lose a whole of that measure. so i had to drop that part of it and introduce it simply. so what would have happened if i'd had more time, if we'd been able to take this bill through in normal time, which would have been to the end of that session, which would have been october, 2008, i could have drawn breath and then, i think, found it easier to satisfy mr. thomas,

who i wanted to satisfy, so i couldn't have the prisons going into meltdown. that was the difficulty. so i'd like to think that even in slower time i would have made the same judgment about the subjective defense that was inserted. but i can't say for certain. >> what happened subsequently is clearly explained in your statement, paragraphs 86 through 88. there was an effect at the prime minister's insistence a negotiation involving mr. thomas on the one hand and representatives of the press in the other. the end point of that negotiation is section 77 and 78. the documents substantiate that. >> if i may say so, the one thing that wasn't -- i mean i would believe and still believe is that there was a clear understanding with everybody

that these two measures would be introduced at the same time. now, subsequently there have been suggestions that we -- that we should have introduced, for example, just the additional defense rather than the penalty as well. and although the record is rather defective on this, i'm absolutely clear that the two went together. and i now regret the fact that i didn't then bring in the amendment to section 55 before the election. and i think it ought to have been brought in by now, but there we are. >> i'll come back to that point about activation, but one participant wishes me to take up your point about conditional fee agreements, which you also refer to in the letter of the 12th of

february 2008. because on the occasion that mr. mcclellan, mrs. brooks, mr. dakor saw you, not merely was the dpa discussed, but also cfas. we can see the views that you held on that matter on the second page of the letter of the 12th of february. first of all, in a nutshell, what were your views about cfas in media privacy cases in particular? and were you succumbing to press pressure about it? >> first of all, my views about cfas generally was they had not worked as intended, and that was why this preceded this. there were already discussions with the senior judiciary about establishing what became the review by lord justice jackson. i think that was slightly later but it was certainly in the year. on cfas, i received a lot of

representations actually from the regional and local press rather more than the national press about the effect on the finances of the regional and the local press of telephone way cfas were operating. and i recall a case which affected not my own local newspaper, which is the lancashire telegraph, but the adjacent one where for a very minor defamation where i think the payout was 3,000 pounds. and even that really wasn't justified. the newspaper had to pay out thousands and thousands by way of costs. as a citizen as well as a politician, i'm very concerned that we should not lose the regional and local press. i looked at this, whichever -- i

think it was a society of editors who represents the regional and local papers. but they had made representations to me, provided a lot of data. there was also strong representations, however, from the nationals as well. and i thought they had a case, quite a strong case. to cut this short, i then followed it through and i decided that we should reduce it from 100% to 10%. i got ministerial colleagues' agreement to that without any difficulty. as it happened in the rush of legislation as we approached the general election, that proposal was then subject to what i can only describe as an ambush in the particular committee that looked at it. and so it fell. it would not have fallen but for

the election. >> were you lobbied by those in favor of maintaining the existing panoply of arrangements in relation? >> yes, i was. the people who represented plaintiffs in these actions. i can't remember exactly which law firms it was, but they were lobbying. there was some people in the commons who were concerned about what i was proposing. and i remember going through a lot of contrasting evidence about the effective defamation claims on newspapers and i think lord justice jackson had a view about this as well. >> he certainly did. but let me take a point away from lord justice jackson's comprehensive review, not merely of defamation but of costs

generally, and ask whether this is a relevant consideration. there's got to be a bit of a statement surrounding it. before conditional fees, libel, privacy, defamation was very much only open to the wealthy. legal aid wasn't available for it. therefore, you took on what were perceived to be the wealthy newspapers at your peril, and, therefore, that area of litigation could be kept comparatively under control. the effect of cfas was to, as it were, to move the boot onto the other foot because then people who did not have money but who could persuade lawyers that actually there was a wrong here

that stood to be righted could take it on with massive risk as to costs on their newspaper because not only was the success fee, this doubling up of costs, but also everything else, i don't need to describe it all to you, but that actually changed the balance in a way that not merely impacted adversely on the economy, economics of the press or indeed the bbc, it doesn't matter who, but also increased the potential scope of the available remedy for those who didn't have money. and i just wonder whether by just dropping to 10%, it's relevant because i'm looking for ways and thinking about the way in which these sort of issues shouldre