CONSENT REQUIRED FOR INSTITUTION OF PROCEEDINGS (Hansard, 16 June 1981)

§ The Attorney-General
I beg to move amendment No. 18, in page 3, line 17, leave out from 'proceedings)' to 'with' in line 18 and insert 'shall not be instituted except by or'.

§ Mr. Deputy Speaker (Mr. Bernard Weatherill)
With this, we are to take Government amendments Nos. 19, 23, 24, 25 and 26.

§ The Attorney-General
Amendments Nos. 18 and 19 are a consequence of the Government's acceptance in Committee of the new clause which is now clause 7. The amendments are straightforward. I pointed out in Committee, when I said that I felt bound by the will of the Committee, that certain changes would be necessary, and I outlined them. These are the tidying-up amendments to give effect to what I then said.
The first point is that, by saying that proceedings should not be instituted, the clause at present does not impose an absolute requirement. I suspect that that is what was originally intended. Also, there is no provision for the Attorney-General himself to take proceedings. Obviously, that is desirable. Those two legs form the first part of the amendment.
The second amendment saves—I dealt with this matter in Committee—the inherent jurisdiction of the courts which have jurisdiction to do so—in this context, superior courts of record—to institute proceedings on their own motion. I imagine that there will be no complaint about preserving that power.
I shall deal with a point made by the right hon. and learned Member for Warley, West (Mr. Archer) about the European Convention. We were both seeking to clarify the issue, not arguing against each other. We may have reached the same end by different means. I shall outline our present thinking on the matter.
The risk is still so slight that we can virtually disregard it being taken to the European Court of Human Rights. However, it may help the right hon. and learned Gentleman if I go into some detail about our reasons for reaching that conclusion. A contempt of the sort that we are considering, which is a breach of the strict liability rule, could undoubtedly constitute an interference with the accused person's right of trial, which is guaranteed by article 6 of the convention, leaving aside the theory of "drittwirkung", whether this applies to individuals or to 916 States alone. There could still be an argument that the State itself would be in violation of the convention if it provided no remedy for such a breach.
That argument might be reinforced if, as a result of the amendment, a public authority—which, unfortunately, I am—could be said to have blocked resort to a remedy that otherwise existed. That would be a breach of article 6, read together with article 13. That is the sort of case that might be made against the Government. 7.30 pm
We do not need to renege on the Committee's decision because the argument treats the proceedings for contempt as being the accused person's only and proper remedy to secure a fair trial, or his remedy for having been denied a fair trial. Much evidence shows that the contempt proceedings are not intended for that purpose alone. Their primary purpose, as was said by Lord Goddard, the Lord Chief Justice, in 1953, was to punish the editor who had committed contempt, not to assist the defence.
The accused person's rights to a fair trial is to be vindicated not in contempt proceedings but in the proceedings in the trial court or, if necessary, on appeal from that court. It is there that the article 6 rights are protected. It is there, not in seperate contempt proceedings, that the accused person has the remedy required by article 13.
Although the Government and the Opposition have reached the same conclusion, it is by a slightly different route. We are not likely to find ourselves in trouble in Strasbourg if we allow the clause to stand. We must take the view that the primary purpose of the clause is to cut down a possible restriction on free reporting and commenting and to enhance the protection of freedom of expression that is guaranteed by article 10. I hope that the right hon. and learned Gentleman appreciates why I felt it necessary to go into a little detail. There is no significant risk that could force us to reconsider the position.
Amendments Nos. 23, 24 and 25 are consequential upon new clause 7. Northern Ireland is covered as well as England and Wales. There is an Attorney-General for Northern Ireland, who at this time happens to be the same person as the Attorney-General for England and Wales. That may not always be the case. Indeed, it was not the case until Stormont was abolished. We need the three amendments to cover that possibility.
Amendment No. 26 is consequential upon the addition of new clause 7. In its own terms, new clause 7 does not apply to Scottish proceedings. The amendment adds to the list of provisions that do not extend to Scotland. I do not think that there is any controversy about any of the amendments.

§ Mr. Archer
I confirm that there is nothing controversial about the amendment. I rise simply to say that we are grateful to the Attorney-General for explaining the Government's thinking, especially on the point relating to the European convention. In Committee each of us tried to consider the matter virtually off the cuff because it had only just been raised. As the right hon. and learned Gentleman said, we seem to have reached the same conclusion by a slightly different route. An old proverb about great minds might apply.
I wish to elaborate slightly on what the right hon. and learned Gentleman said about the Attorney-General for Northern Ireland. My recollection is that, although there 917 is no Solicitor-General for Northern Ireland, the Attorney-General for Northern Ireland is now either the Attorney-General for England and Wales or the Solicitor-General—

§ The Attorney-General
The right hon. and learned Gentleman is wrong.

§ Mr. Archer
Perhaps my recollection is wrong. I did think that that was the statutory provision. It does not really matter because it is not relevant to the amendments. We do not wish to persuade the House to resist the amendments.