'.—(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.
(2) If the person against whom the application for relief is made ("the respondent") is neither present nor represented, no such relief is to be granted unless the court is satisfied—
(3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.
(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to—
(5) In this section—
court" includes a tribunal, and
relief' includes any remedy or order (other than in criminal proceedings).'.—[Mr. Straw.]
§ Brought up, and read the First time.4.15 pm
§ The Secretary of State for the Home Department (Mr. Jack Straw)
I beg to move, That the clause be read a Second time.
§ The Second Deputy Chairman of Ways and Means (Mr. Michael Lord)
With this, it will be convenient to discuss the following: New clause 1—Breach of right to privacy—'.—When a court finds that Article 8 (right to privacy) of the Convention has been breached and that save for the provisions of the Convention and this Act there is no other protection or remedy 535 available under United Kingdom law for the party complaining of the breach, the Court shall make a report to Parliament setting out the circumstances of the breach and the action which the Court proposes to take and proceedings shall be stayed until Parliament has debated the report.'.New clause 7—Convention rights under Articles 8 and 10—'.In any proceedings where a court has to adjudicate between—
the court shall normally, and particularly where the right to impart or receive information about matters of public interest is at issue, give precedence to rights arising under Article 10.'.
- (a) a claim that Convention rights under Article 8 (Right to respect for private and family life) have been infringed, and
- (b) a claim for protection of Convention rights under Article 10 (Freedom of expression),
§ Mr. Straw
With these new clauses we have an opportunity to debate the potential impact of the Human Rights Bill on the freedom of the press. The issue was debated at some length on different occasions in another place and in this House, particularly on Second Reading on 16 February. Today, I seek to explain to the Committee how Government new clause 13 fulfils the commitment that I gave on that occasion.
As the Committee will know, there was concern in some sections of the press that the Bill might undermine press freedom and result in a privacy law by the back door. That was not the Government's view. On the contrary, we have always believed that the Bill would strengthen rather than weaken the freedom of the press. In practice, the European convention on human rights has been used in Strasbourg to uphold press freedom against efforts by the state to restrict it. By virtue of clause 2 of the Bill, our courts will be required to take the Strasbourg case law into account. Therefore, we are bringing home not just the rights contained in the convention but the associated jurisprudence, including the importance that the European Court in Strasbourg over the years has attached to freedom of expression.
On Second Reading, I gave notice that I would place in the Library and make available to Opposition Members an abstract of various judgments made in the Strasbourg court, which spells out the extent to which that court time and again has come down in favour of press freedom as opposed to privacy and the right to family life. I know that Opposition Members will have read and digested the abstract and that that will elevate the standard of debate this afternoon.
We recognise the concerns expressed in the press. As I have made clear, for example in respect of the Bill's impact on the Churches, we are anxious, so far as is consistent with the framework of the Bill and, above all, with our obligations under the convention, to deal constructively with the concerns expressed about the Bill. In the light of those concerns, we decided to introduce a new clause specifically designed to safeguard press freedom. We thought long and hard about that, and Government new clause 13 is the result. It is an important new clause, and I shall go through its provisions in some detail.
Subsection (1) provides for the new clause to apply in any case where a court is considering granting relief—for example, an injunction restraining a threatened breach of confidence; but it could be any relief apart from that 536 relating to criminal proceedings—which might affect the exercise of the article 10 right to freedom of expression. It applies to the press, broadcasters or anyone whose right to freedom of expression might be affected. It is not limited to cases to which a public authority is a party. We have taken the opportunity to enhance press freedom in a wider way than would arise simply from the incorporation of the convention into our domestic law.
Subsection (2) provides that no relief is to be granted if the person against whom it is sought—the respondent—is not present or represented, unless the applicant has taken all practicable steps to notify the respondent or there are compelling reasons why the respondent should not be notified. The courts are well able to deal with the first limb of that exception relating to whether all practical steps have been taken to notify the respondent, and, in the case of broadcasting authorities and the press, rarely would an applicant not be able to serve notice of the proceedings on the respondent.
The latter circumstance—compelling reasons—might arise in a case raising issues of national security where the mere knowledge that an injunction was being sought might cause the respondent to publish the material immediately. We do not anticipate that that limb would be used often. In the past, such applications have been rare, but there has been at least one recent case involving the Ministry of Defence.
As I made clear on Second Reading, the provision is intended overall to ensure that ex parte injunctions are granted only in exceptional circumstances. Even where both parties are represented, we expect that injunctions will continue to be rare, as they are at present.
Subsection (3) provides that no relief is to be granted to restrain publication pending a full trial of the issues unless the court is satisfied that the applicant is likely to succeed at trial. Among concerns expressed about the Bill's possible impact on freedom of the press, there was concern that interim injunctions—known in the trade as Friday night injunctions, as the hon. and learned Member for Harborough (Mr. Garnier) will confirm; I do not doubt that he has been present in the courts on many Friday nights earning an honest crust—might be granted simply to preserve the status quo, with a view to a full hearing of the application later. However, by that time the story that was to be published might no longer be newsworthy. As I said earlier, time and again the convention jurisprudence reinforces the freedom of the press against, for example, the assertion of rights under article 8. One example of that is part of the judgment of the European Court of Human Rights in the 1991 "Spycatcher" case. Dealing with the issue of interlocutory relief, the court said:news is a perishable commodity and to delay its publication for even a short period may well deprive it of all its value and interest.Given that, we believe that the courts should consider the merits of an application when it is made and should not grant an interim injunction simply to preserve the status quo ante between the parties.
I hope that this provision will strike a chord with the hon. and learned Member for Harborough, who said:Reverting again to my own sphere of practice, the courts frequently have to balance the rights of a plaintiff who has been defamed or is about to be defamed and wants an injunction prior to publication, and the rights of the newspaper or potential defendant who says, 'I shall prove that what I say is true.' In those 537 circumstances, at an interlocutory stage, the judge says to the plaintiff, 'I am sorry, but the right to utter an untruth, if it proves to be so, takes precedence over your right to protect your reputation.' The injunction is not granted and the article is published."—[Official Report, 17 June 1998; Vol. 314, c. 426.]The hon. and learned Gentleman was making the point that, even now, the courts are very reluctant to grant interlocutory relief preventing publication. I gather that in his experience, many more times than not, the courts will say, "I am sorry, but you will just have to take the alleged untruth on the chin and if you want relief later, you can seek damages."
§ Mr. Edward Garnier (Harborough)
I am grateful to the Home Secretary for advertising my practice. I am always grateful for any such small crumbs. I hope that that quotation is an accurate reflection of law and of practical experience. Many potential applications for interlocutory injunctions, whether during the day or late at night, are simply not made because the lawyers advising the plaintiffs anticipate that the defendant newspaper will argue that what is being said is true or partially true or that there is some other substantive defence. They tell their clients not to waste their time going to court because they will lose and have to pay the costs.
§ Mr. Straw
That is helpful. The hon. and learned Gentleman anticipates me. I was going to say that in drawing attention to his sphere of practice, we might be breaching the Bar Council's code on advertising, but I think that we should allow ourselves an exception in this case. People on either side of a defamation action would be well advised to seek his advice. He makes the important point that it is already difficult to get interlocutory relief. We are in a sense reinforcing that difficulty, for good reasons that I wholly defend, because of the importance of protecting the right to freedom of expression against other rights.
§ Mr. Peter Bottomley (Worthing, West)
I support the Home Secretary in what he is saying, but can he confirm that the provision will deal with the Maxwell abuse, where someone who has—or seems to have—a lot of money can intimidate others by the threat of interlocutory applications? Secondly, can he confirm that if there is a way for a potential plaintiff to serve notice on a publisher that what he is about to publish is untrue or in part untrue, it will be taken into account in post-publication action?
§ Mr. Straw
On the hon. Gentleman's first point about Maxwell intimidation, we believe that the new clause would protect a respondent potential publisher from what amounts to legal or legalised intimidation. We have already discussed the difficulty of getting interlocutory relief. It will be very difficult to get it unless the applicant can satisfy the court that the applicant is likely to establish that publication should not be allowed. That is a much higher test than that there should simply be a prima facie case to get the matter into court.
To paraphrase, the second point of the hon. Member for Worthing, West (Mr. Bottomley) concerned a respondent who succeeded in preventing an injunction at the interlocutory stage and then published but it turned 538 Out that there had been some breach of the law. He asked whether that could be weighed in the balance in respect of damages.
§ Mr. Straw
Up to a point, the hon. and learned Gentleman says.
I should at this point explain something that will not be known, with a bit of luck, to the hon. and learned Member for Harborough, but may be known to the two Liberal Democrat Members sitting below the Gangway. The existing law in this area in Scotland is different from that in England and Wales. The Scottish courts, in considering whether to grant an interim order restraining publication, will take account of the relative strengths of the case put forward by each party. A Scottish court would be unlikely to grant an interim order unless it was already satisfied that the applicant was likely to establish his case. Therefore, subsection (3) is technically unnecessary in Scotland. It remains true, however, that media activities cross the boundaries of the separate jurisdictions in the United Kingdom, as I rather famously know from my experience at Christmas. For that reason, and because it is right in principle, we believe that the safeguards for freedom of expression contained in the new clause should apply throughout the United Kingdom.
Subsection (4) requires the court to have particular regard to the importance of the article 10 right to freedom of expression. Where the proceedings concern journalistic, literary or artistic material, the court must also have particular regard to the extent to which the material has, or is about to, become available to the public—in other words, a question of prior publication—and the extent to which publication would be in the public interest. If the court and the parties to the proceedings know that a story will shortly be published anyway, for example, in another country or on the internet, that must affect the decision whether it is appropriate to restrain publication by the print or broadcast media in this country.
Under subsection (4), the court must also have particular regard to any relevant privacy code. Depending on the circumstances, that could be the newspaper industry code of practice operated by the Press Complaints Commission, the Broadcasting Standards Commission code, the Independent Television Commission code, or a broadcaster's internal code such as that operated by the BBC. The fact that a newspaper has complied with the terms of the code operated by the 539 PCC—or conversely, that it has breached the code—is one of the factors that we believe the courts should take into account in considering whether to grant relief.
§ Mr. Dominic Grieve (Beaconsfield)
I am sorry to take the right hon. Gentleman back slightly, but would he care to amplify on the definition of "the public interest", which is a critical phrase in subsection (4)(a)(ii) of the new clause?
§ Mr. Straw
I was hoping not to have my brain exercised in such a challenging way. The courts are well versed in making judgments about the balance between a private interest of an applicant before them and the wider public interest. That is inherent in any case in a clash between article 10 and article 8. It is also inherent in the way in which the courts until now have dealt with many issues surrounding proceedings for defamation. The European convention and the European Court of Human Rights have devoted quite a lot of time and effort to developing the concept of the public interest. Without being too tautologous, one of the points of the public interest is, to quote the words of the Strasbourg court in Handyside v. the United Kingdom in 1976, thatfreedom of expression constitutes one of the essential foundations of a democratic society, one of the basic conditions for its progress, and for the development of every man"—and these days, I have no doubt, every woman. That is a brief sketch of a subject on which I have every confidence in the courts' ability to make good judgments in particular cases.
§ Mr. Peter Bottomley
I am grateful to the Home Secretary for allowing me to intervene a second time. On the subject of privacy codes, one of the interesting questions that need to be put to publishers, proprietors and editors is: what are their own standards that their own staff are supposed to meet? Obviously, there are times when, in the public interest, they have to investigate—to act like a vacuum cleaner and suck up the dirt—in order to discover what is right and justifiable to print. They do not have an easy job, but, instead of relying solely on the Press Complaints Commission code or the similar requirements for broadcasters, will the Home Secretary confirm that all such organisations ought to have their own standards about which their own staff and freelances know; that those standards should be made public; and that if, when challenged, it is shown that they have fallen below their own standards, as well as below the standards of the PCC or the broadcasting authorities, that would class as a "relevant privacy code" under the legislation?
§ Mr. Straw
First, the hon. Gentleman asserts that all those organisations ought to have their own privacy code. I understand his point, but I do not think that it is up to us to assert that an individual private newspaper ought to have its own privacy code. However, it is very much in newspapers' interests to have such a code, because otherwise they would not get the benefit of the relevant limb, which is subsection (4)(b) of the new clause.
Secondly, I would point out that national newspapers and those belonging to the regional newspaper associations are all members of the Press Complaints Commission; therefore, they have signed up to the PCC code, which, as far as I am aware, is the strongest and certainly the most public press code available. It may well 540 be that other newspapers, both those within and those outside the PCC framework, have their own codes on staff conduct. Plainly, the higher the conduct required, the better for the public and—this is why the provision creates a virtuous circle—the better the defence available under the new clause to a newspaper, should it be subject to an application for relief, for example, under article 8.
§ Mr. Martin Linton (Battersea)
While my right hon. Friend is still on the subject of subsection (4)(a)(i), I should be grateful if he clarified the exact meaning of the material that is, or is about to become, available to the public; and whether that word "public" would have a geographical limitation. This is a "Spycatcher" clause and the argument used in the "Spycatcher" case was that the material was available to the public in any country other than the United Kingdom. In the only similar case—the one involving my right hon. Friend, to which he referred—the argument used was that the material was available to newspaper readers in Scotland. However, if the term "public" was interpreted in a very narrow way, such arguments might fail.
§ Mr. Straw
There is no direct qualification to the word "public" in the new clause. Ultimately, it would be a matter for the courts to decide, based on common sense and proportionality. The fact that the information was available across the globe in very narrow circumstances would not be weighed in the balance. The fact that, in the situation in which I was involved at Christmas, the information was fully public in newspapers in Scotland and, by virtue of that fact, available in newspapers on sale at every London railway terminus and airport, made the notion of protection by an injunction issued in courts covering only England and Wales rather risible. The courts would be bound to take such facts into account. As I said earlier, they would also take into account the extent to which the information was available in another country or on the internet, but in each case, the courts would have to apply balance and proportionality.
The reference in the new clause toconduct connected with such materialis intended for cases where journalistic inquiries suggest the presence of a story, but no actual material yet exists—perhaps because the story has not yet been written.
Subsection (5) provides that references to a court include references to a tribunal, and that references to relief include references to any remedy or order, other than in criminal proceedings. We drafted the amendment with civil, rather than criminal, proceedings against the media in mind. Without such an exclusion, judges wanting to impose reporting restrictions in a criminal trial would, for example, have to consider any relevant privacy code, although plainly it would not be appropriate in that context.
Nevertheless, as public authorities, the criminal courts will of course, in the same way as other courts, be required not to act in a way that is incompatible with articles 8 and 10 and other convention rights. The special provision that we are making in new clause 13 does not therefore exempt criminal courts from the general obligations imposed by other provisions of the Bill. However, had we included criminal proceedings under new clause 13, we would have made the running of criminal trials very complicated.
541 I hope that the Committee found that explanation useful. I shall now make some general points and then deal with the Opposition new clauses. Much of the debate on this issue in recent months has concerned the Press Complaints Commission. Indeed, amendments were tabled that would have exempted it from the public authority provisions of the Bill.
As the Committee will know, we did not consider that the idea of exempting any particular organisation from the provisions of the Bill would have been consistent with the scheme of the Bill. Indeed, it could have been inconsistent with the convention as well. In any event, new clause 13 seems to us a better and more thorough response to the concerns that have been expressed.
As the regulator of the newspaper industry, the PCC has an obvious interest in any amendment to safeguard the freedom of the press. As I explained on Second Reading, Lord Williams of Mostyn and I had been involved in detailed discussions about that with the chairman of the PCC, Lord Wakeham, and we reached an understanding on a framework for amending the Bill.
The new clause was drafted in consultation with Lord Wakeham and representatives of the national and regional press. They have given it a warm welcome, as Lord Wakeham made clear in a statement earlier today. I am grateful to him for having said:I warmly welcome it"—the new clause—as I know does the newspaper industry—and am grateful for the skilful way the Government has dealt with the potential problems.The Government have always made clear our support for effective self-regulation as administered by the Press Complaints Commission under its code of practice. We have also said that we have no plans to introduce legislation creating a general law of privacy. On the question of prior restraint, our intention, as I said in the House on 16 February, is that the thresholds that the new clause sets will mean that interlocutory injunctions should be granted ex parte only in the most exceptional of circumstances.
Similarly, on self-regulation, the new clause provides an important safeguard by emphasising the right to freedom of expression. Our intention is that that should underline the consequent need to preserve self-regulation. That effect is reinforced by highlighting in the amendment the significance of any relevant privacy code, which plainly includes the code operated by the PCC.
I am glad that we have been able to frame an amendment that reflects the Government's stated commitment to the maintenance of a free, responsible press, and the consequent need for self-regulation, while maintaining the protection of the convention that all our citizens should, and do, enjoy.
I have explained the effect that we want to achieve with our new clause. If, for any reason, it does not work as we envisage, and press freedom appears at risk, we shall certainly want to look again at the issue. I shall now deal briefly with the Opposition new clauses.
New clause 1 would provide that if a court finds a breach of article 8—the article concerning the right to respect for private and family life, home and correspondence—for which domestic law apart from the 542 Bill provides no remedy, the court must give Parliament a report setting out the circumstances of the breach and the action that it proposes to take. The court proceedings would be adjourned until Parliament had debated the report.
I assume that that is intended to discourage the courts from developing a law of privacy on the sole basis of article 8's being given further effect in domestic law. But I must tell the Opposition that there are several difficulties in such an amendment, although of course I understand why it has been put forward as a vehicle for a debate about the connection between the development of the common law and that of the statutory law.
First, such an amendment would not prevent the courts from developing a law of privacy through the existing common law, for example by developing the law on breach of confidence, which has advanced to quite a degree over the past three decades. Secondly, the requirement to adjourn proceedings pending parliamentary consideration of a court report would add to delays in the court system. Thirdly, there is no provision for what is to happen after Parliament has debated the report. In particular, there would be nothing to prevent the court from proceeding to grant a remedy for a breach of article 8.
Fourthly, and above all, I urge the Committee to recognise a profound error in the thinking behind new clause 7, which collides with a fundamental pillar of our constitution—the separation of powers between the judiciary and the legislature. It is one of the bases of the rule of law that the courts should be able to say whatever they want, even if that is inconvenient or unacceptable to Members of Parliament and Ministers. So long, but only so long, as the courts are willing to show that independence, can there be a democracy and the rule of law in this country, or in any other country.
To interweave the legislature and the judiciary would lead judges to think, "My intellect, wisdom and sense of public purpose require me to do one thing, but on the other hand I have Parliament looking over my shoulder suggesting that I do something else." That seems to me unacceptable, so I hope that the Opposition will not press that point too far.
New clause 7 would provide that in a case where a court had to decide between a claim under article 8 and a claim under article 10, it should normally give precedence to the article 10 rights. That would be especially so in connection with the right to impart or receive information about matters of public interest.
The difficulty with that new clause is that it goes further than the terms of the convention and Strasbourg case law. Nothing in the convention suggests that any one right is normally to be given precedence over any other right. The courts will need to balance the competing claims and come to a decision on the facts of each case, taking account of any relevant Strasbourg case law. Although the European Court of Human Rights has stressed the great importance attaching to the right to freedom of expression, it has not gone as far as new clause 7 would go.
I remind the Opposition that the same issue arose on the question of how far we could protect the position of the Church under new clause 9, which the Committee has 543 approved. Then, we said that where an issue of the exercise of religious freedom under the convention came up, the court should have particular regard to the importance of that right. That is exactly what we are saying in subsection (4) of new clause 13; we use the phrase "particular regard".
So far as we are able, in a manner consistent with the convention and its jurisprudence, we are saying to the courts that whenever there is a clash between article 8 rights and article 10 rights, they must pay particular attention to the article 10 rights. I think that that is as far as we could go, and I hope that, on consideration, the Opposition will think so, too. We must strike a balance, and we believe that in new clause 13 we have got the balance right.
I repeat that I am extremely grateful to Lord Wakeham and his colleagues for all the consideration that they have given to helping us to achieve what I believe is a proper balance.
§ Sir Norman Fowler (Sutton Coldfield)
As the Home Secretary said, new clause 13 is important; as he also mentioned, we have tabled new clauses of our own on the same subject. I begin by declaring an interest, as I did earlier, as non-executive chairman of Regional Independent Media, which publishes newspapers in both Yorkshire and Lancashire.
The only difference between the Home Secretary and me concerns the relative merits of the Lancashire Evening Post and the Lancashire Evening Telegraph. I shall try to educate the right hon. Gentleman about the former; I know that he is familiar with the latter.
The new clause is not exclusively about newspapers. Just as important, it covers broadcasting and any other areas where the right to freedom of expression may be affected. This is not remotely to do with party politics. I acknowledge that there are differing views in both our parties—I say that to protect myself at the outset from my hon. and learned Friend the Member for Harborough (Mr. Garnier).
The Government have repeatedly said—this is my first general point—that they do not intend to introduce a general law of privacy. The Home Secretary has stated that the Government do not accept that there is a case for general legislation on the matter. Others would take a different view; as it happens, mine is the same as the Home Secretary's. There are hon. Members who believe that we need a new law—there have been a range of attempts to introduce one over the past 10 years. We can all agree—whatever our stance on a general law of privacy—that we should not like a new privacy law to come in by accident, by mistake, or by the back door.
It is one thing to set out proposals openly and for debate; it is quite another to slip through regulations without their full consequences being understood.
Clause 1 sets out the European convention rights that are given effect by the legislation—including article 8, which concerns respect for private and family life. That article states that a public authority should not, except in certain exceptional circumstances, interfere with the exercise of a right to that respect: in other words, it is the right of privacy.
Article 10, by contrast, sets out a right to freedom of expression and to publish information. Clearly, a balance must be struck between the two rights. The right to free speech and free reporting is, after all, basic in a democratic society.
544 When last we debated this issue in Committee, I offered the example of Mrs. Maclean, the wife of the traitor Donald Maclean who disappeared to Russia with Burgess. When she was left behind, the Daily Express watched her and was roundly condemned for that alleged intrusion on her privacy. In the end, however, she did exactly what the newspaper thought she would, and disappeared behind the iron curtain. That is perhaps an extreme example of the possible clash between the privacy of the individual and a newspaper's freedom to report.
That is why new clause 7 tries to inject some certainty, by stating that a court shall,where the right to impart or receive information about matters of public interest is at issue, give precedence to rights arising under Article 10.That is a rather broad-brush approach, and I do not intend to press the new clause—but we wanted to set out our view.
My second general point is that clause 6 makes it unlawfulfor a public authority to act in a way which is incompatible with a Convention right.The Home Secretary, not entirely without reason, glossed over this part of the debate. What is and what is not a public authority is crucial, but we have been subjected to a bewildering range of Government advice on that— [Interruption.] I note that the right hon. Gentleman is looking for his folder, so I shall give him time to look up what he needs.
On Second Reading in another place, the Minister, Lord Williams of Mostyn, said that he anticipated that the BBC would be a public authority, that Channel 4 might be one, and that commercial television might not be. Even more dramatically, the Lord Chancellor proceeded on the basis that the Press Complaints Commission was not a public authority and was therefore not covered.
According to The Guardian—the Home Secretary and I are both devoted readers—the Lord Chancellor dismissed with contempt any argument against his stance, in particular the protests of the Secretary of State for Culture, Media and Sport. He did so on the ground that the Secretary of State was only a layman, whereas the Lord Chancellor was an experienced lawyer. As it happened, the layman was right; I can only hope that his victory will serve him well in the forthcoming reshuffle. I doubt whether it will, but he deserves credit for being right on this issue.
§ Mr. Straw
As the Committee will know, even Homer nodded. It shows the Lord Chancellor's generosity of spirit that he came back and said that, on further consideration, his initial view had been incorrect, and there wasa disposition on the part of the Courts to regard the PCC as a 'public authority'."—[Official Report, House of Lords, 24 November 1997; Vol. 583, c. 784.]545 As to our interpretation of clause 6—the acts of public authorities—I can say without exaggeration that my postbag has been almost full of compliments for the exquisite clarity with which I presented an interpretation of how clause 6 would operate—
§ Sir Norman Fowler
"Exquisite clarity" is not exactly the phrase that comes to my mind, but I acknowledge that the Lord Chancellor admitted that he had made a mistake. On 18 November, he said, having previously said precisely the opposite, that it was possible that the Press Complaints Commission would, after all, be held to be a public authority under the Bill when it became law. An opinion given to the PCC by David Pannick QC had persuaded him that it probably would be. That confirms, of course, that the Lord Chancellor made a spectacular legal U-turn.
Now, after several months of rather tortuous progress, we can all agree that the PCC is indeed a public authority and will be covered, joining other organisations such as the BBC.
That brings me to my third general point. The Government had two possible ways of extricating themselves. They could try to define which organisations were covered and which were not. In Committee, the Opposition tabled an amendment to have some light shed on that. Alternatively, the Government could table a new clause that sought to govern the operation of the legislation—which is what the Home Secretary has done today. I welcome that. The new clause tabled by the Home Secretary is important and takes us forward in the debate.
Government new clause 13 emphasises the importance of the convention right to freedom of expression. That was also the purpose of our new clause 7, so we welcome the Government's proposal. It is right that we should preserve the present position and guard the freedom of speech and freedom to report. It should be stressed that the new clause does not apply just to the press. We tend to conduct the debate as if only newspapers were affected, but it applies also to broadcasting organisations—television and radio.
§ Mr. Garnier
Should we not also bear in mind the fact that the debate also applies to ordinary members of the public, who have the right to express themselves?
§ 5 pm
§ Sir Norman Fowler
Indeed; the debate goes very wide. It has tended to concentrate exclusively on the press. I am delighted that everyone thinks so highly of newspapers, but it should be recognised that other forms of media also report, expose and reveal. If we had named the Press Complaints Commission as an exempt body, that might have helped the press, but it would have done 546 nothing for television or radio reporting. However, the Government and the PCC, which provided help, have found a useful way through.
The Government's new clause requires courts, when judging what is justifiable or unjustifiable, to take account of any relevant privacy code. I hope that the Home Secretary will confirm my understanding that although broadcasting and the press will be covered, they will not necessarily be covered by exactly the same rules, for the good reason that the privacy code operated by the Press Complaints Commission can be different in some respects from the code operating in broadcasting.
Perhaps that difference is more apparent than real. The PCC states:Everyone is entitled to respect for his or her private and family life, home, health and correspondence. A publication will be expected to justify intrusions into any individual's private life without consent.The public interest is the exception, and includesdetecting or exposing crime…protecting public health and safety.Many of those conditions are repeated in the Broadcasting Standards Commission's code, which states:An infringement of privacy has to be justified by an overriding public interest in disclosure of the information.It also mentions detecting crime, disreputable behaviour, protecting public health or safety, and so on.
I welcome the Government's proposal to tighten the law on interim injunctions. It cannot be right in principle, as my hon. Friend the Member for Worthing, West (Mr. Bottomley) pointed out, that a system can be used to prevent the truth from being told—I fear that that is sometimes intended—provided that a person is wealthy enough and legally well advised. I shall leave it to my hon. and learned Friend the Member for Harborough to elaborate.
Other questions need to be asked. Our new clause 1, which we shall not press, was designed to allow us to examine the possibility that a law of privacy will be developed by the courts in any event. I should prefer any such attempt to be straightforward and open. The Government do not favour a law of privacy. How will they respond if one is developed for them by the courts? It is predicted by none other than the Lord Chancellor that that will happen.
Another question arises from an interview given by the Lord Chancellor to the New Statesman in February. He advocated that the Press Complaints Commission should develop a mechanism for prior restraint—in other words, that the PCC should order a paper not to publish under certain circumstances. It is certainly not a power which the PCC wants; I could put that much more strongly. Will the Home Secretary take the opportunity to say that that is no part of the Government's plans?
Assuming that the Home Secretary can satisfy us on that, I am content with his new clause, which meets the concerns that we have expressed and were eloquently expressed in the other place. I share the right hon. Gentleman's belief in the system of self-regulation—for example, the Press Complaints Commission. We underestimate the effect that such a system, and the prospect of an investigation, has on the working journalist. That was true when I was a working journalist years ago, in the days of the Press Council, and it is true today.
547 It must always be remembered that the task of a newspaper is to reveal and expose. At the best, it exposes criminals and fraudsters. At the worst, it can reveal issues that seem to have no true public interest. Making a judgment against publication and about what is or is not in the wider public interest is full of peril.
In conclusion, I shall tell a story entirely against myself. In 1966, when I was a journalist, I was writing a series of articles on prisons for The Times. I visited Dartmoor prison, where there was nothing for me to do at lunchtime, so I went out on to the moors and ate my sandwich in one of the fields there. My attention was taken by a man working alone in a field near my parked car. He was a giant of a man. When I returned to the prison, I mentioned my lunchtime companion. There were knowing looks, and finally one of the senior staff said, "For goodness' sake don't report that. That's Frank Mitchell, the mad axeman. He has been in prison half his life, and we think we are getting him to the point when he can be released."
Mitchell had been sentenced to life imprisonment in 1958 for robbery with violence. He was only 29, and he had been under some form of restriction since the age of nine. I had a choice. I could have reported the story, and I guarantee that the rest of Fleet street would have followed it, or I could have taken the advice of the prison staff who knew Mitchell best, and whose view was that it would have done infinite harm to his rehabilitation for that to be reported. I chose not to report that story.
Ten weeks later, in December 1966, Mitchell escaped or, more accurately, was taken by several others. He was never seen again. Three years later, the Kray twins and several others stood accused of his murder. They were found not guilty, but one person was found guilty of helping the escape. The theory was that when the hue and cry got too hot, the man was killed. There is no question but that Frank Mitchell was killed and has never been seen since.
The totally detached journalist would have written the story and not concerned himself with the consequences. As it turned out, that would have been very much in the interests of the unfortunate Mr. Frank Mitchell. My conclusion is that function of the press is to report, to reveal and to expose. We will get into all kinds of difficulties if we interfere with the freedom to report. With that in mind, I welcome the Government's proposal. I shall certainly support the new clause.
§ Mr. Clive Soley (Ealing, Acton and Shepherd's Bush)
I shall be brief. I am very interested in the proposed new clause 13, and I welcome it. The Home Secretary will know that we have worked long and hard to try to balance privacy with freedom of the press, and this is as good a chance of success as we are likely to get.
I welcome the Government's efforts, because we are beginning to piece together several laws that protect both freedom of the press and individuals' rights. The Data Protection Bill—which we shall consider later—protects the public by requiring accuracy in the press. Members of the public will have the right to view the files held on them by the press—which might result in some 650 Members of Parliament queueing outside editors' offices on the day that the legislation comes into force.
I do not share the Home Secretary's confidence that voluntary regulation will work—it has always seemed to me to be a triumph of hope over experience. However, 548 as I should like it to work, I am more than willing to give it a shot. I am anxious about balancing articles 8 and 10 of the European Court and how they will deal with the ordinary cases that appear in the press. The Opposition spokesman, the right hon. Member for Sutton Coldfield (Sir N. Fowler), referred to such a case.
We often talk about privacy only in terms of how it relates to the late Princess Diana, a famous film star or a famous politician. The reality is that only a minority of complaints to the Press Complaints Commission deal with privacy. It is also important to appreciate that many of the most serious abuses involve ordinary people, not the rich and the powerful. I am fairly relaxed if a person in a powerful position who is used to dealing with the media gets a rough ride, not because that is necessarily just, but because it is difficult to intervene in such a case.
I shall describe several test cases. The first involves the helicopter winchman who, in January this year, rescued nine people from a sinking freighter off the Shetland Islands. Unfortunately, after he had landed the last sailor, he was swept to his death by a giant wave. That man's son was hounded by the press and surrounded by photographers, and he made a rather desperate plea to be allowed to grieve in peace. That is a classic case for enforcing article 8, which protects family rights, in order to allow the son to grieve properly.
The individual's rights must be balanced against press freedom, but I should have thought that a court would rule in favour of family rights in such a case. I ask the Minister not to reach a conclusion about that case, but to confirm whether I am correct in thinking that people who are the target of that sort of harassment and invasion of privacy would be able to go to a local court and invoke their right indirectly, through the human rights legislation—perhaps it may be necessary to provide legal aid in such cases—to stop that harassment and invasion of privacy during the grieving period prior to a funeral.
That first case is about expense and access to the courts by an individual who is caught up in tragic circumstances. The most typical cases of that type involve people who have been recently bereaved in rather dramatic circumstances and who are not public figures. They are the people about whom I am interested.
I have grouped together several other cases involving people who cannot act for themselves. On 5 May this year, the Daily Mirror published details of expenditure at a prison shop by a well-known notorious criminal, who is currently serving a sentence in Broadmoor secure hospital for a number of murders and is a recluse and a psychotic. The newspaper had obtained those details from another prisoner, which was, in itself, a questionable operation. Although the man did not spend very much money—he purchased bars of chocolate, toothpaste and things of that nature, which amounted to only a few pounds—the story concluded that, because the man was receiving benefit, like all patients in secure hospitals, all other benefits in his savings account should be taken from him and given to his victims.
Leaving aside the argument about whether we should put criminals in a particular category and not give them any benefits, the case involved a prisoner in a secure hospital, who was therefore a patient under the Mental Health Act 1983 and had a right to privacy. Who will intervene on a person's behalf and call into question the balance between articles 8 and 10 in such a case?
549 5.15 pm
There are equally difficult cases involving children. It is unacceptable that children are frequently caught up in similar situations. On 7 May this year, the Daily Mail named a four-year-old child, whose photograph appeared on the front page of that paper, in the context of a story about the child's grandmother who had had the child's mother sent to prison. From my understanding of the story, the grandmother probably took the right action: the mother was involved in drugs, and so on. However, I question the newspaper's judgment in putting the name and photograph of that child on the front page. As I have said before, the last thing that a small child needs is for a mass circulation tabloid to print his or her name and photograph on its front page announcing that the child's grandmother had sent the mother to prison.
Who will intervene in such cases? The grandmother was clearly not prepared to do so in that case—perhaps she was poorly advised about the role of the media in that situation. Children must receive some protection, and I believe that article 8 will address that problem. That protection must be balanced against press freedom and, as the right hon. Member for Sutton Coldfield said, it is a delicate balance.
I suspect that the Minister will respond by saying that the solution involves case-made law, and he is probably right. However, the purpose of my intervention is to flag the importance of ensuring access to the law by people who are often on low incomes, who may be inarticulate and who, above all, are not experienced in handling the media and do not know about available remedies. Those people need the protection of article 8, and the courts must look carefully at privacy and the needs of family life when judging such cases.
We should not confuse those cases—as has occurred too often in the past—with the rights of the great, the powerful and the rich to privacy and freedom of the press. We must focus on the everyday cases that appear in so many tabloid newspapers. At present, ordinary people cannot get protection of the type that I hope the proposed new clause will provide. I think that it will meet that need, but any information that the Minister can provide in his winding-up speech will be welcomed by those who might wish to consider this discussion if they find themselves in similar circumstances.
§ Mr. Garnier
I begin, as I did on another occasion, by declaring my interest as a practitioner at the Bar in this area of law. However, that is perhaps not necessary, given that my right hon. Friend the Member for Sutton Coldfield (Sir N. Fowler) and the Home Secretary have declared it for me. I fear that my colleagues in chambers will snigger when they read the Hansard—if they get around to it—and see the kind things that the Home Secretary and my right hon. Friend have said about my prowess as a lawyer. However, I shall leave it there and bask in the glory, for what it is worth.
The Home Secretary said at the outset that some people feared that the Bill would undermine press freedom, but he went on to say that proposed new clause 13 would enhance press freedom. He cited the agreement of my noble Friend Lord Wakeham, the chairman of the Press Complaints Commission, as evidence of that. The noble Lord has certainly welcomed the new clause, but whether it necessarily follows that it is a good thing is another 550 matter altogether. I do not have any huge or principled objections to new clause 13. I suggest, rather offensively, that it may do a little good and some harm—although I accept not very much.
My main point is that I am not sure that the new clause is altogether necessary. I shall not encourage anyone to vote against it, if that assists the Home Secretary and my right hon. Friend the Member for Sutton Coldfield, but I sometimes become wary about undue cross-party cosiness when there are questions that should be tested with rigour. In the debate on the Crime and Disorder Bill, I made that point about anti-social behaviour orders, about which there seemed to be perfectly sensible cross-party agreement. I thought it right to tease out one or two issues then, and I hope that the Committee will forgive me if I have another go on this question.
The hon. Member for Ealing, Acton and Shepherd's Bush (Mr. Soley), to give him his new title—
§ Mr. Garnier
How times have changed. In those days, of course, many things were different, as the Home Secretary will no doubt remember.
The hon. Member for Ealing, Acton and Shepherd's Bush, in his own way, highlighted the point that the press often forget, find it convenient to forget, or fail to distinguish between two separate concepts: what is the public interest or in the public interest, and what is interesting to the public. From time to time, they defend stories that are of no genuine public interest but which they reckon will sell a lot of newspapers—stories that are interesting to the public. We should be aware of that point, and the hon. Member for Ealing, Acton and Shepherd's Bush put his finger on it by drawing certain cases to our attention.
We occasionally consider such cases in our pastoral role as Members of Parliament, when we assist our constituents, but when we come to Westminster and enter the Chamber, we suddenly put on a different overcoat—that of a very important person—and think that the press should pay particular attention to our rights. However, it is more important for Members of Parliament to protect the interests of their constituents—the small people who do not have access to expensive lawyers and who need us to protect their interests against the big battalions. I applaud the hon. Member for Ealing, Acton and Shepherd's Bush for making that point.
My right hon. Friend the Member for Sutton Coldfield and the Home Secretary said that this issue is to do with not only the press in the widest sense—I include within that ambit the electronic media such as television and radio—but the rights of expression of ordinary citizens, to which the hon. Member for Ealing, Acton and Shepherd's Bush referred. I hope that we can protect those rights, just as much as I hope that we can construct a suitable balance between the rights of the press, and our rights and the rights of other citizens.
I shall briefly outline what I think is the current state of the law with regard to libel and confidence. They represent the two most easily available courses of action available under the common law which the new clause attempts to bolster. In respect of libel, there are already rules of sufficient quality to protect defendants—potential 551 publishers—because, first, the plaintiff must show that what the defendant intends to publish is, with reasonable certainty, capable of being defined. The plaintiff could not go to a judge and say, "I fear that someone is going to say something nasty about me." He would have to persuade the court that particular defamatory allegations were about to be published, so, much as I would sometimes like it to be the case, there would not be, for example, a blanket injunction saying, "Don't talk about Edward Garnier in tomorrow's paper—that won't do."
Secondly, the plaintiff must show that what the defendant intends to publish is plainly defamatory of him. In that respect, the Home Secretary was kind enough to recount something that I said last week. If the defendant said to the judge, "I will justify it and prove it to be true," or said that he would rely on another substantive defence such as qualified privilege or fair comment, the judge would say, "That does not permit the granting of an interim injunction." It is my understanding that the blanket rule can be overcome only if the judge is persuaded at the interlocutory hearing that those defences—justification, or qualified privilege or fair comment—are bound to fail. Indeed, it is rare for a judge to reach a conclusion of that sort on affidavit. Such matters are normally left to the constitutional tribunal of fact—the trial.
Thirdly, the plaintiff must normally notify a defendant of his application and, if the defendant does not attend the hearing, should tell the court what he genuinely believes the defendant's position to be. I have been at this game for 20 or 25 years and, in my experience, it is unheard of for a person to go to a judge's house to try a Friday night job without expecting him to say, "What will the defendant respond to your application? Will he say that it is true, or that he does not intend to publish what you think that he is going to say?" The plaintiff would be tested, and I am not entirely convinced that new clause 13 does any more than is already provided.
With all the diffidence at my command, I suggest that the new clause adds nothing in practice, except perhaps the imposition of an obligation on the court to express a view about the ultimate merits of an application before trial. Indeed, the Home Secretary was candid enough to make that clear when he went through new clause 13(3), referring to the words:No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.He translated that into "likely to succeed at trial". Out of the mouth of the Home Secretary came a requirement on the tribunal to reach at an early stage—when evidence is broadly unformulated and the issues not entirely defined—a pretty firm conclusion about the result of the trial.
In respect of confidentiality, the current rules provide sufficient protection to a defendant because, first, a plaintiff must satisfy the court that what is intended to be published is confidential and, secondly, an injunction would not be granted if the public interest in disclosure was significantly strong or the information was already in the public domain. If the plaintiff discharges the first of those criteria, and the defendant cannot satisfy the court about the second, the injunction serves to protect the confidence until the trial, which can, in appropriate cases, be expedited.
552 When discussing the granting of an injunction in a confidence case, the former Master of the Rolls, Lord Donaldson of Lymington, deliberately used the pun, "Confidential information is rather like a block of ice: once it is exposed to the full glare of the sun, it melts." We should be careful about exposing potential plaintiffs' rights to the protection accorded to confidential information where such information would lose its value if publication were not restrained. That is the obverse of the Home Secretary's point about newsworthy stories: if such stories are restrained, they can lose their newsworthiness and the value of publishing can be lost over a few hours or a weekend. We have to do a little more than worry about the newsworthiness of newspaper stories and the concerns of editors to beat the competition to a particular exciting story. To come back to the point made by the hon. Member for Ealing, Acton and Shepherd's Bush, we are also here to protect the interests of the small man.
My third point on the question of confidentiality is that the new clause involves a full trial of the issues on the application, which in many respects can be practically impossible, and the risk is that the subject matter of the action will be destroyed before trial. It may turn out after a full investigation that the plaintiff was right all along. It will be little comfort to him in six months' time if the full trial agrees that the information was confidential and should not have been disclosed. What use is that to the plaintiff? By virtue of clauses 2 and 6, the court will, in any event, have to have regard to jurisprudence under articles 8 and 10 of the convention in dealing with such applications. Can the Home Secretary persuade me that the new clause does not conflict with article 8 by preventing the courts from protecting article 8 rights before trial? That matter concerns me a little, but I am sure that the Home Secretary can resolve my doubts in his usual way.
Mention was made of the existing law and of articles 8 and 10. I have not yet seen, as I should have, the paper that the Home Secretary has placed in the Library of the House, but if it is based on the learning in a text book written by Toulson and Phipps, I probably know what it says.
§ Mr. Garnier
I shall not worry about the Home Secretary's deposits. I simply repeat my confession that I have not read it. However, if it says what I suspect that it says, it contains a lot of wise words.
Although the convention has not yet been domesticated—or, to use the Home Secretary's words, deposited—within British statute law, the courts are increasingly taking into account the jurisprudence of the European Court in so far as it deals with articles 8 and 10. The Home Secretary will know of the case of the Crown 553 v. Khan and the wise words of the, sadly, late Chief Justice Lord Taylor. He said that from the authorities that he cited,it is clear that it is permissible to have regard to the Convention, which is of persuasive assistance, in cases of ambiguity or doubt. In the circumstances of the present case the position is neither ambiguous or doubtful; nor is it incumbent on us to consider whether there was a breach of article 8, and we do not propose to do so.Thus, the Court of Criminal Appeal took a flexible and sensible approach to the jurisprudence of the European Court, despite the fact that it was not part of English domestic law.
In article 10 cases, the Court of Appeal in the House of Lords has again taken a sensible approach to making use of European Court jurisprudence. In the case of Rantzen v. Mirror Group Newspapers in 1986, Lord Justice Neill noted that the courts had no power to enforce convention rights directly, but might refer to the convention for assistance to resolve an ambiguity in English legislation or when considering the exercise of a discretion. He went on to say:Where freedom of expression is at stake, however, recent authorities lent support for the proposition that article 10 has a wider role and can be properly be regarded as an articulation of some of the principles underlying the common law.As my hon. Friend the Member for Beaconsfield (Mr. Grieve) would be the first to admit, there is an awful lot of good in the convention, of which we need not be frightened, and I am not. All I am saying is that, by virtue of the sensible way in which our common law has developed with the assistance of the convention, we may not need new clause 13 because it does no more than what we are already doing. If the Home Secretary can persuade me that it is not simply a gesture—I see the Home Secretary shake his head disapprovingly. If he can persuade me that the new clause is not being inserted in the Bill simply to placate my noble Friend Lord Wakeham and the barons, big and small, of the press, I shall be grateful to him.
§ Mr. Straw
The Under-Secretary of State for the Home Department, my hon. Friend the Member for North Warwickshire (Mr. O'Brien), will wind up the debate. The new clause is no sense a gesture. Anyone who reads it can see that it provides important substantive and procedural safeguards for those seeking to rely on article 10 rights.
§ Mr. Garnier
I am always happy to take the Home Secretary at his word and, during the Bill's proceedings, my happiness to do so has increased. I accept his assurance that the new clause is not simply a gesture, although I am still not entirely sure that it is strictly necessary. I have no quarrel with the message underlying the new clause, even if it is not a gesture. If it is of any comfort to anybody, I shall not invite the Committee to divide on it.
I wish to anticipate some remarks that may be made by the hon. Member for Battersea (Mr. Linton). He was concerned about the use of the word "public" in subsection (4)(a)(i), which says:the extent to which…the material has, or is about to, become available to the public".He may find help from the wise words of the noble and learned Lord Bridge in a case that involves his former employer, the publishers of The Guardian, in the 554 "Spycatcher" case. Those Committee members who took an interest in that aspect of press freedom will remember that the House of Lords upheld the then Attorney-General's application for an injunction to restrain the publication of information that was confidential to the Government. However, Lord Bridge gave a powerful dissenting judgment. He was dealing with information that was made available to the public outside the jurisdiction of the court, and he said:I can see nothing whatever, either in law or on the merits, to be said for the maintenance of a total ban on discussion in the press of this country of matters of undoubted public interest and concern which the rest of the world now knows all about and can discuss freely…The maintenance of a ban, as more and more copies of the book Spycatcher enter this country and circulate here, will seem more and more ridiculous. If the Government are determined to fight to maintain the ban to the end, they will face inevitable condemnation and humiliation by the European Court of Human Rights in Strasbourg. Long before that they will have been condemned at the bar of public opinion in the free world.Lord Bridge, although in the minority in the Judicial Committee in the House of Lords, was proved rights because the European Court disapproved of the injunction and awarded The Guardian and its sister newspaper, The Observer, £100,000, and The Sunday Times £100,000. That underlines the humiliation point and goes some way towards answering the concerns of the hon. Member for Battersea about information that is in the public domain but not necessarily confined to the jurisdiction of our courts.
That is quite enough from me. The Home Secretary is getting fidgety and obviously wishes to leave. It was polite of him to remain in the Chamber to listen to my warblings. I hope that the Under-Secretary can allay some of my gentle fears that the new clause is unnecessary, albeit well intended.
§ Mr. Linton
I rise to support new clause 13 as someone who has never seen what is wrong with a law on privacy. The Home Secretary says that he is not in favour of a general law on privacy—and I accept that—but this proposal is a law about privacy, because it incorporates in our law the words of article 8 of the European convention, which guarantees privacy in people's private and family life and in their correspondence.
The Bill may not be solely about privacy, but it deals with the subject as I imagined a privacy Bill would do. Crucially, it determines where the principle of privacy ends and freedom of the press begins. By saying that the court must "have particular regard" to article 10, the new clause establishes, in the fairest possible way, a balance between article 8 on privacy and article 10 on freedom of the press. New clause 7 would put undue weight on one rather than on the other. Subsection (2)(a) and (b) of new clause 13 solve the problem of Maxwell-type ex parte injunctions, and subsection (4)(a) deals with the "Spycatcher" issue to which the hon. and learned Member for Harborough (Mr. Garnier) referred. Subsection (4) brings the Press Complaints Commission within its ambit.
It has always surprised me that Lord Wakeham has been opposed to this measure. He has argued that self-regulation has been an unsung success story. Self-regulation of the press has been a success in the sense that it has defended the press against regulation for many years, but it has not been a success in protecting the public from the press.
555 I have never believed overly in self-regulation. Life is a jungle. I can conjure up a picture of the jungle in which it is decided that too many children from the neighbouring villages have been eaten by tigers and in which self-regulation is introduced. The high council of the jungle discusses how the restraint can be exercised. Baloo the bear says to Shere Khan, "Could you kindly eat a quota of babies next week? Do not eat too many. Restrain yourself a little."
The Press Complaints Commission is based on a similar principle, because it comprises the editors of several national newspapers, including the editors of the Daily Mail, until the recent death of Sir David English; The Sunday Times; The Sporting Life; and the Sunday Mail. In the recent past, it has included the editors of the Sunday People and the News of the World. I am not suggesting that any of those individuals are incapable of self-restraint, but the principle involved in self-regulation is strange, because it assumes that newspaper editors are the best people to protect the public against the press.
It also surprised me that Calcutt, at the end of his long inquiry, recommended against a privacy law, although he was in favour of a law against bugging, burgling and telephoto pictures. Eighteen months later, in the light of experience, when he reviewed his own report, he recognised that the Press Complaints Commission was not an effective regulator of the press and he recommended a statutory press complaints tribunal.
It is strange that many years after Calcutt came to that fair conclusion, so many people resisted that recommendation. Only 27 out of 3,023 cases before the PCC in 1996—the last year for which figures are available—were upheld. It cannot be maintained that such regulation is a success. I have been alarmed at the reluctance with which the press, and Lord Wakeham in particular, have conceded inch by inch that press regulation is inadequate. That has became more and more obvious, particularly in relation to events involving the royal family. A few days after the death of the Princess of Wales, Lord Wakeham said:Motorbike chases, stalking and hounding are unacceptable",as though he had just been driven to that conclusion. The PCC amended the privacy code to make it clearer that it was over-zealous to hound someone on a motorbike.
According to opinion polls, almost 90 per cent. of the public favour a privacy law. As The Guardian, my former employer, said, this is a type of privacy Bill: it is not solely about privacy, but while Lord Wakeham, as the watchdog, has been guarding the patio doors, a privacy Bill has slipped through the cat flap. I am very glad that it will be on the statute book.
I do not have an interest as such to declare, but I have an interest in that the hon. and learned Member for Harborough and I have been, respectively, night lawyer and night reporter on The Guardian, and on many occasions we have been at the sharp end of the ethical dilemmas with which the Bill is intended to deal. It is 30 years since I first joined a national newspaper as a reporter. I—and many of my erstwhile colleagues—believe that, in that period, the ethical standards of the press have deteriorated alarmingly. Journalists are often portrayed as having no interest in the ethical standards of the press. It is true that, individually, they have an interest 556 in winkling out the facts, however damaging they may be to the person concerned, but journalists collectively have an important interest in ensuring that their professional standards are maintained and that people's privacy, especially the privacy of ordinary people, is not invaded for purely commercial interests.
Many of my former journalist colleagues will welcome the clarity of the new clause and the fact that it establishes the law of privacy as coequal with the freedom of the press. It is many years since the former Secretary of State for National Heritage said that they were nearly calling time at the last chance saloon. When he said that in 1991, he presumably meant that it was about 10.50 pm. Successive Secretaries of State have put back that deadline time and again, even though the problems of privacy and freedom of the press have deteriorated. By my reckoning, it is now about half-past five in the morning. I am sure that the Bill will be the moment at which we say, "Time gentlemen, please" in the last chance saloon.
§ Mr. Grieve
I find myself facing this debate with welcome surprise. At the start of the Bill's progress through Parliament, it seemed to me that this would be the great dust up. On Second Reading, there were expressions of great concern about the freedom of the press, the way in which the convention would impinge on it and the dreadful consequences that might flow for the historic liberties of the fourth estate that were thereby threatened. It seemed to exercise the minds of quite a few of my colleagues. In the light of the Government's response, I thought that I would have to comment on the fact that the Government were giving way to pressure from the fourth estate—of a kind other than the hon. Member for Battersea (Mr. Linton)—and were tinkering with the European convention on human rights by incorporating it in an undesirable fashion.
I am the first to be delighted that, in new clause 13, the Government have done nothing of the kind. Indeed, it seems that, for some magical reason, that tremendous canard—if I may use the phrase—has finally been dispelled. The convention—with or without new clause 13, as my hon. and learned Friend the Member for Harborough (Mr. Garnier) so perspicaciously identified—was never going to pose that extraordinary danger.
None the less, I welcome new clause 13, if only because it has succeeded in placating those who have made some of the more extreme comments about the way in which the convention will operate. The new clause is also wholly compatible with current practice, as my hon. and learned Friend correctly said. I do not think that it will tinker around with well-established principles—at least, I hope it will not.
The cosiness may be becoming too great, but I believe that, when the convention is incorporated—with the new clause to interpret it—it will provide a motor force for the gradual development of a law on privacy. I greatly welcome that, for precisely the reasons that have been cogently articulated by the hon. Member for Battersea and, in a very interesting speech, by the hon. Member for Ealing, Acton and Shepherd's Bush (Mr. Soley). Privacy rights need to be protected in this country, and we need to be able to strike a balance. That balance must preserve the freedom of the press to expose hypocrisy and criminal activity, but it must ensure that photographs of young children whose mother was sent to prison by the 557 grandmother's denunciation are not put on the front page. Those are precisely the excesses of press activity which a civilised society should abhor.
I have never believed that we need a privacy law, as I have always believed that, once the convention is incorporated, such a law will develop gradually and of its own accord—it will assume a civilised, measured and proper form. If it does not, doubtless Parliament will keep it under review—we may be able to help it on its way as and when necessary. I hope that such legislation will not be necessary, and that incorporation will focus minds on the balance between articles 8 and 10, which need to be reconciled if we are to remain a civilised society that respects the rights of individuals not to have their privacy wantonly trampled on.
I do not intend to take up much of the Committee's time. As I said, I had rather expected that I should have to remind the Government not to tinker around with the convention, but I am delighted that I do not have to. The Home Secretary is to be commended on new clause 13, which is well crafted, well reasoned and seems to meet the objections that were previously being raised. We shall keep the matter under review—it will be a subject of abiding interest to me and, I dare say, to a number of hon. Members on both sides of the Committee. As time goes by, we shall have to see whether it is achieving the desirable aim that I believe it can achieve.
§ Mr. Ross Cranston (Dudley, North)
I want to make a few remarks about the way in which the new clause reconciles the rights to freedom of speech and to the protection of private and family life. Both rights are important. Freedom of speech, in a way, encapsulates our vision of democracy; it is essential to our democratic procedures. If we do not have freedom of speech, we cannot operate our democratic mechanisms. The protection of private life involves a range of concerns—our rights, for example, to individual autonomy, to reputation, to the protection of private information and to an individual name. Those are important rights, but, like all rights, they have to be qualified both when considered alone and, in some cases—as we are considering today—when they conflict.
New clause 13 represents a sensible way in which those different rights may be reconciled. It suggests that they can be balanced in a number of ways—various criteria are identified. That is especially helpful. English courts develop the law pragmatically and incrementally, but it is sometimes useful that they should have some guidance. New clause 13 provides guidance on reconciling those rights.
Our courts can gain some insight into how rights may be balanced by considering the experience of other countries. Even in the United States, the right to freedom of speech is qualified, although, under the first amendment, a much more absolutist view is taken of the right. Some Supreme Court judges, such as Justice Black, have indeed taken an much more absolutist view of freedom of speech than is taken by the European Court of Human Rights, but they, too, have recognised that, in some cases, the right has to be qualified.
My right hon. Friend the Home Secretary has placed a brief summary of the European case law in the Library. The point that I think he was making with the case 558 extracts is that, in most cases, the European Court of Human Rights has given primacy to the right to free speech. The extracts suggest, on the whole, that the article 10 right will trump other rights. We know that from the case law that has arisen from this country. The Sunday Times thalidomide case some 25 ago years showed that the contempt proceedings against the newspaper could not be upheld under article 10. In the "Spycatcher" case, which has been mentioned, the court made the important point that dangers were inherent in the prior restraint of freedom of speech. More recently, in the Goodwin case, the court made an important point about the protection of journalistic sources.
§ Mr. Garnier
I am listening carefully to the hon. Gentleman, but he will not want the Committee to conclude from his remarks that articles 8 and 10 do not allow for prior restraint. Paragraph 2 of article 10 and paragraph 2 of article 8 show that there are exceptions. Indeed, one of the problems of the convention is that it is as much a list of exceptions as it is of rights. I trust that the hon. Gentleman will not move from this point without addressing his mind to the exceptions—including the allowances to prior restraint—that are contained in the articles.
§ Mr. Cranston
The hon. and learned Gentleman is absolutely right—the rights are qualified. Indeed, as I said at the outset, rights are always qualified. We are considering how the new clause can deal with a conflict between two rights. I shall come back to some of his remarks, as I do not agree that the new clause achieves nothing.
We tend to ignore the jurisprudence of the German courts, but they have, for many years, balanced the right to free speech with the right to privacy.
My friend and former colleague Professor Markesinis has published some lengthy discussions of the German case law. He points out that the German courts have developed sophisticated methods of balancing the two rights. For example, they distinguish between speech that informs, and speech that is mere gossip. My hon. Friend the Member for Battersea (Mr. Linton) alluded to that distinction when he castigated some of his former colleagues.
The German courts also distinguish between speech motivated by greed, and speech that is in the public interest. I see that the right hon. Member for Sutton Coldfield (Sir N. Fowler) has returned to the Chamber. I am not sure that the story he told does him any discredit; I think that all professionals should act with some concept of the public interest in mind, and I consider that the right hon. Gentleman acted in the right way all those years ago. We must balance those rights, and new clause 13 sets out a number of criteria.
I accept what the hon. and learned Member for Harborough (Mr. Garnier) said about ex parte and interim relief. I am not sure that new clause 13 adds a great deal to the existing law in that respect, but I think that it is valuable in that it refers to the public interest and to privacy codes. It is possible that the courts would have developed a deferential attitude to the privacy codes that exist. In judicial review, for example, the Datafin case 559 showed that our courts will defer to self-regulatory codes. In that instance, the takeover code was involved. The court said that the City operated the takeover code in a reasonably satisfactory way, that the panel was closer to the market than the court was and that it should, therefore, defer to its operation. In time, our courts may develop a case law that respects the decisions of self-regulatory bodies such as the Press Complaints Commission, but I am not certain that we can say at this point that they will automatically adopt such an approach.
It is also helpful that new clause 13 invokes the concept of the public interest. The hon. Member for Beaconsfield (Mr. Grieve) asked what the term actually meant, and he was right to do so, because it is a difficult concept—the concept of the unruly horse to which Lord Diplock referred all those years ago. Again, German case law is useful. In one of his papers, Professor Markesinis sets out a range of considerations taken into account by the German courts—in particular, the German constitutional court—in the definition of the public interest.
The German courts have considered, for instance, the motives of the publisher, whether the speaker will benefit financially, the extent to which the information has been disseminated, the breadth of the restriction that the plaintiff wishes to impose on the defendant's speech rights and the methods used. My hon. Friend the Member for Battersea referred to the legality of such methods as telephoto lenses.
Although I consider new clause 13 valuable in that respect, I must add that we are only at the beginning of our journey. Over the years, in a range of decisions, the courts will have to reconcile those two rights. Nevertheless, the new clause constitutes a valuable contribution to the start of the journey.
§ The Parliamentary Under-Secretary of State for the Home Department (Mr. Mike O'Brien)
We have had a good debate, in which all hon. Members have welcomed new clause 13.
The new clause seeks to do what—as I think is generally recognised—could have been a difficult, even precarious job: the job of ensuring that the balance between articles 8 and 10 is right. I am pleased that Lord Wakeham, on behalf of the Press Complaints Commission, said today:The amendment being discussed in the Committee of the House today safeguards the freedom of the press and self-regulation. I warmly welcome it—as I know does the newspaper industry—and am grateful for the skilful way the Government has dealt with the potential problems.I am also delighted by the welcome given to the new clause by the right hon. Member for Sutton Coldfield (Sir N. Fowler), in a very good speech. I particularly enjoyed his account of his failure to write a story which he thought that he should not write, for good reasons, finding later that there might be good reasons for him to have done so. That is a lesson for all journalists who must make such judgments.
The right hon. Gentleman asked a number of questions. He pointed out that the press and broadcasting agencies are all involved in the way in which the convention will operate, and that, in the operation of the new clause, separate codes may be taken into consideration. I confirm that separate codes will operate. As the right hon. Gentleman suggested, there are minor—even marginal— 560 differences between them. I suspect that those differences will not make much odds in terms of court judgments, but the right hon. Gentleman was right to point them out.
The right hon. Gentleman welcomed the tightening of the law on interim judgments, which we consider an important safeguard for the press. He asked whether the Press Complaints Commission should develop prior restraint powers. That is not part of our plans, which I hope reassures him. He said that the task of newspapers was to reveal and to expose. We agree that it is a basic safeguard of an active and vital democracy to reveal and expose when at least some public interest is involved. I am sure that that is the right hon. Gentleman's view.
My hon. Friend the Member for Ealing, Acton and Shepherd's Bush (Mr. Soley) and the hon. and learned Member for Harborough (Mr. Garnier) rightly said that we should consider not so much whether the rich, famous and powerful would benefit from the new clause, but whether there would be some protection for the ordinary individual who might feel that his private life was being infringed. I think that all hon. Members want to get the balance right between the freedom of the press—the importance of which was mentioned by the right hon. Member for Sutton Coldfield—and the rights of the "small man", as he was described by the hon. and learned Member for Harborough. We must get the balance right between articles 8 and 10. The courts will no doubt weigh the vulnerability of ordinary citizens and of the rich and famous in the appropriate way. Article 8 is available to everyone, including the small man.
My hon. Friend the Member for Ealing, Acton and Shepherd's Bush asked about various cases. He asked whether the helicopter winchman would be able to claim under the convention and, if so, in which court. The venue depends on the nature of the case and of the claim, so I cannot give him guidance on that, but there would be various ways of proceeding.
§ Mr. Soley
This is a key question of access to the law. Given that the man was grieving at the time and trying to prevent the intrusion that was taking place, it seems to me that there should be an ability to go to the local court—perhaps the magistrates court—to seek protection. If the human rights convention is now part of our domestic law, is an appeal available on that basis?
§ Mr. O'Brien
When there is a case that can be brought before a court, the convention can be brought in. Which court that will be will depend on the nature of the case. I cannot give an absolute assurance that the man to whom my hon. Friend referred will be able to pursue the matter in a county court. It would be wrong to give individual advice from the Dispatch Box, and the man will have to rely on his own lawyer. When they become a matter of dispute and concern, issues relating to the convention can be raised in ordinary cases. People have access to rights that previously had to be enforced in Strasbourg. I hope that my remarks have afforded at least some reassurance.
My hon. Friend the Member for Ealing, Acton and Shepherd's Bush also asked about a child. There are various options: the child could be made a ward of court, a guardian ad litem could bring a case, or the official solicitor could look after the child's interests. In some cases, the courts decide that the invasion of privacy outweighs the right to freedom of expression. The new clause does not prevent that.
561 An important point that has, to some extent, been overlooked is that newspapers will not be public authorities and could not be proceeded against directly under the Bill, but an article 8 point could be raised in proceedings for harassment or a libel action, for example.
Concerning the example of the expenditure at the tuck shop of an inmate of a special hospital, there are arguments either way about whether publication should be considered to be in the public interest, and the courts would have to decide the case on its merits. The new clause simply requires them to have regard to whether publication would be in the public interest.
The hon. and learned Member for Harborough made the important point that, when Front Benchers agree, it is the responsibility of Back Benchers to put the testing arguments to the Government. He asked us to remember the distinction between the public interest and what is interesting to the public. I hope that, to some extent, we have caught that important distinction in subsection (4)(a)(ii) of the new clause.
The hon. and learned Gentleman asked whether the new clause went further than the current law. I hope that my right hon. Friend the Home Secretary was able to reassure him to some extent. We are seeking to put in place some new safeguards to provide help and clarity in the law. When we introduce something as important as the convention, it is important to ensure that the courts understand how we intend it to be interpreted. The provisions in subsections (4) and, especially, (2) offer safeguards. The hon. and learned Gentleman says that those safeguards are acknowledged to some extent in the practice of the courts, but now they will be acknowledged in statute, and the added clarity in the law will give them substance.
The hon. and learned Gentleman asked whether the tribunal—by which, I presume, he means the divisional court judge or whoever is considering the application—would have to reach a conclusion at an early stage about whether the case was likely to succeed. That would be the case, but only to the extent that the judge would be considering issuing an injunction. If he decided, for whatever reason, that an injunction was inappropriate, he would not have to consider the substance of the case and its chances of success at that stage.
§ Mr. Garnier
I am not entirely sure that the Minister addressed my point. If the judge—it is a Queen's Bench judge in chambers, as often as not, rather than a divisional court—is not minded to grant an injunction on the application of a plaintiff who is seeking to protect confidential information, that more or less becomes the main question, because once the information is in the public domain, there is nothing to be done other than the award of damages—and we are talking about non-pecuniary loss, not about anything of great financial value.
§ Mr. Garnier
Indeed, or as I said in Lord Donaldson's language, the ice, once in the full glare of the sun, has melted.
562 We need to think more carefully about requiring a judge considering an application for an injunction to reach a judgment on the merits of a trial that could have long-term implications, when we all know that a trial involves the consideration of far more detailed evidence than is available to a judge at that stage.
§ Mr. O'Brien
That is right, but judges have to make such decisions, and will have to bear in mind the consequences and consider whether it is right to grant the injunction. They may decide that it is not, but feel subsequently that damages are a better way in which to deal with the case. The judge must consider all the circumstances and find the right balance between articles 8 and 10, taking into account the factors that we have suggested in the new clause and considering the hon. and learned Gentleman's valid point that information that has a value because of its confidentiality cannot regain that value once the confidentiality is lost. The judge will have to bear in mind both that point and the consequences that it might have for what the hon. and learned Member for Harborough called the small man. Those are issues for the judges to wrestle with. I am not sure that we can go much further than providing the judges with the clarity and guidance that we are giving. There will perhaps be more clarity and guidance for the judges when the convention is in place.
The hon. and learned Gentleman said that subsection (3) made no difference. We suggest, however, that the law on granting injunctions is flexible in privacy cases, and we are tightening it to ensure that the applicant will in all cases need to establish a stronger case.
My hon. Friend the Member for Battersea (Mr. Linton) made several points about defects in self-regulation. The Government have no plans to end self-regulation. My hon. Friend rightly drew attention to the Calcutt report and the comments of the former Member of Parliament for Putney, David Mellor, who warned the press that time was running out at the last chance saloon. In many ways, Mr. Mellor's comment had an effect, and the Press Complaints Commission is trying robustly to ensure freedom of the press while trying to ensure that privacy is respected. The Bill helps the PCC to balance article 10 and article 8. Our new clause will add to press safeguards, giving the PCC better guidance on how to achieve that balance.
The hon. Member for Beaconsfield (Mr. Grieve) raised several important points. Unfortunately, his most important point came during his intervention on the Home Secretary about the public interest. My hon. Friend the Member for Dudley, North (Mr. Cranston) also raised that point in his helpful speech. I am perhaps tempting further interventions by going into the issue of what the public interest is, but the basic question is whether the public should have particular information. For example, information might have an effect on proper political discourse, or a matter of public policy. It might also affect individual behaviour. For example, information about BSE might have affected decisions on whether to eat beef. Those are areas in which there is a proper public interest in the press revealing information. The judge would have to ask the same question put by the hon. and learned Member for Harborough: is a matter only of interest to the public, or is it a matter of public interest? There should be some good reason why the public should know.
563 It is arguable whether there should be a good reason for the public not to know something. That takes us into realms of philosophy and jurisprudence, and I do not want to go too far into them. However, judges will debate that matter among themselves as they reach their decisions.
My hon. Friend the Member for Dudley, North said that we were at the beginning of a journey. We have tried to safeguard the interests of the individual and the interests of press freedom and strong democracy. Much work and thought has gone into that, and I thank the right hon. Member for Sutton Coldfield and others who have praised my right hon. Friend the Home Secretary and Lord Williams of Mostyn for their hard work on getting the Bill right. We worked closely with the PCC, which has been enormously helpful. Getting the Bill right was important to our democracy, and I am delighted that our debates have indicated that we have done so.
§ Question put and agreed to.
§ Clause read a Second time, and added to the Bill.