HL Deb 15 June 1961 vol 232 cc289-99

2.55 p.m.

Order of the Day for the House to be put into Committee read.


My Lords, in rising to move that the House do resolve itself into a Committee on this Bill, the Right of Privacy Bill, I should like, if I may, to offer one or two words of explanation and apology to your Lordships concerning the progress of the Bill. It is, after all, three months since your Lordships gave this measure a Second Reading: so long ago, in fact, that your Lordships may have forgotten what the Bill is about. May I remind you? This is a Bill to protect a person from any unjustifiable publication relating to his private affairs, and to give him rights at law in the event of such publication.

Three months ago we debated this Bill on Second Reading, and your Lordships were good enough to give it a Second Reading by a vote of 74 Contents to 21 Not-Contents. If I may say so, with respect, in the presence of many of my noble friends on the Front Bench, I do not really believe that all 21 of them had their hearts in their discontent. Naturally, I was delighted with the result. I acted as Teller for myself in my own Lobby, and I never thought the day would arrive when I should find myself counting such distinguished heads as those of Lord Attlee, Lady Summerskill, Lord Alexander of Hillsborough and Lord Morrison of Lambeth—all voting for Mancroft! I was amazed and gratified. I think, if I may say so with respect, the noble and learned Viscount the Lord Chancellor was slightly startled, too, although—and it would undoubtedly be stretching the English language to say so—not gratified; because the Lord Chancellor, very courteously and kindly indeed, had advised your Lordships to vote against the Bill, but your Lordships had not taken his advice.

I do not think I am in breach of any confidence if I say that, after this event, I had some conversations with my noble and learned friend on the Woolsack, and he said that, in view of what had happened in your Lordships' House, and the strength of opinion voiced in favour of the principles of my Bill, he would like a little while to think about it again. In particular, he asked if he might have a little while to think about the implications in respect of foreign law and other principles of law on this subject in America and elsewhere.

My Lords, I was naturally delighted at the prospect of the noble and learned Viscount on the Woolsack being in the position of throwing me a bone or two, and I was particularly gratified that he should be able to do this in view of his greater preoccupation with much more important matters than my little Bill. However, this has put me in some difficulty. Your Lordships are aware, of course, of the difficulty which faces every private Member of your Lordships' House in trying to bring a Bill into another place at this stage of the Session when the Government are not supporting that measure. Your Lordships will have seen in The Times newspaper this morning a graph entitled "Legislative work facing both Houses". It looks like a cross between the final results of "Eights Week" and a street map of Birmingham. Unfortunately, my poor little Bill does not feature on it at all—not even in the back streets of Birmingham—so little does the Editor of The Times think of my chances of getting my Bill upon the Statute Book. I am afraid that the Editor of The Times may on this occasion be right. The chances of my getting my Bill upon the Statute Book at the moment, in view of the legislative confusion of the timetable, are, to say the least of it, unemphatic.

Therefore, my Lords, I am faced with this problem. If I proceed with my Bill, and go through the Committee stage, Report and Third Reading, am I not in danger of facing a charge of wasting your Lordships' time and trifling with the procedure of the House? That is the last thing I should wish to do. If I take my little Bill forward—and, in view of what is happening in another place, I would add that there are good friends there willing to take my measure into the battlefield immediately—in view of what the Lord Chancellor has said, and in view of what is happening in another place, am I really hitting my head against a brick wall? If, on the other hand, I drop my Bill without any further words, am I being courteous to those of your Lordships who were kind enough to support my measure, and those outside the House who were kind enough to support and encourage me? That is the difficulty which I have to face; and it is particularly difficult in view of the fact that several noble Lords were kind enough on Second Reading to make suggestions for improving my Bill which I have sought to put into effect by the Amendments which are on the Order Paper to-day.

The first major Amendment, Amendment No. 1, is designed to prevent actions from being brought frivolously, for technical infringements of privacy to which no person could reasonably object. That is one point which your Lordships made strongly on Second Reading. The second major Amendment, Amendment No. 4, is an attempt to pro-teat the plaintiff against all methods of obtaining material calculated to cause distress and embarrassment even when there is no trespass. Those are the principal Amendments. The others are largely drafting.

That, therefore, is my dilemma; and, of course, I am in your Lordships' hands. As I say, I can see very little chance, in all reality, of my Bill finding its way on to the Statute Book this Session. If it has to be shelved—and I await the noble and learned Viscount's verdict on the fate of the Bill—I have at least given it a chance of being shelved in a tidier state than it was hitherto. At the back of my mind there is always the instruction given to his followers by the late much-lamented W. C. Fields: If at first you don't succeed"— said Mr. Fields— try, try again. Then give up; there is no point in making a jackass of yourself! The last private Member's Bill which I brought before your Lordships' House took eleven years to reach the Statute Book. That was the Marriage Enabling Bill. I will not be put off if your Lordships are not prepared to take my Bill further to-day. I have made these few remarks only by way of explanation so that I shall not appear discourteous to those of your Lordships who were good enough to support me as strongly as you did.

I am convinced by what happened on Second Reading, and from the very large postbag which I have received on this subject, as well as by the support I have received in the responsible Press, not only here but abroad, that there is strong support for the principles underlying my Bill. If I have not got the right answer to the way in which these principles should be put into effect, I have only myself to blame and I shall try again; but I shall wait to hear the noble Viscount on the Woolsack tell me exactly how long I must wait and in what direction I have to try.

Moved, That the House do now resolve itself into Committee.—(Lord Mancroft).

3.2 p.m.


My Lords, I want to detain the House only for one moment, but I would remind the noble Lord that many of us who voted for the Second Reading of this Bill voted with a certain amount of hesitation and doubt. We felt that the Bill, as it stood, was an unsatisfactory Bill, but that it might be capable of improvement. The noble Lord had notice of that. Some of us said so—indeed, I said so myself. He has tried his hand at improving it. I do not think he has done very much with it, and it stands substantially where it stood on Second Reading. My advice to him is to let his Bill fade away, in the excellent company of the Weights and Measures Bill, the Road Traffic Bill, and others. It will be in very good company and will have the chance of popping up again next Session. I think it would save the time of the House if we did not further proceed with the Bill, That is entirely a matter for the noble Lord, but it is one of the courses he himself suggested, and I think it would be the wiser and the realistic course.

3.3 p.m.


My Lords, may I say three preliminary things? The first is that I still, as I said on Second Reading, have great personal sympathy with the objectives of my noble friend's Bill. The second is that I should like to assure my noble friend that no one could have introduced or conducted the Bill with greater force and humour, and in a way more acceptable to the House, even to those who disagreed with it.

The third point is this. It seemed to me my duty, after the vote of the House, although the House had heard my views, to examine the subject again to see whether I could find any method by which the objectives might be attained. I have reconsidered very carefully the arguments which led me to advise the House on the earlier occasion not to give the Bill a Second Reading, and I should not wish the House to proceed with the Committee stage of the Bill under any misapprehension. Having considered the matter as carefully as I can, I remain of the opinion that it would not be possible to cure by Amendment what I consider to be a fundamental objection to the Bill. In spite of the Amendment Which my noble friend proposes to make to Clause 1—an Amendment which, I may say at once, would, in my view, improve the clause—I still think that the effect of Clause 2 must be to give a defence in the very case at which the Bill is aimed—intrusion on the private affairs of one whose name is before the public.

This is not, I believe, merely a question of drafting. However closely the right of action given by Clause 1 may be defined, it will still be necessary to give the newspaper a defence based on public interest—which is what Clause 2 seeks to do. I do not think it is possible to define in an Act of Parliament the circumstances in which that defence is to be available without either destroying the effectiveness of the right of action, or imposing a new and severe restriction on publication generally and the freedom of the Press. It would, no doubt, be possible for Parliament to leave it to the courts to decide in what circumstances a newspaper could successfully raise a defence of "public interest". Matters of public interest might be defined as "matters on which a reasonable man would consider himself entitled as a member of the public to be informed". The application of this definition would mean conferring on the courts a discretionary power so wide that it must, in effect, constitute them, in this field, virtual censors of the Press. My own view is that such a course is neither acceptable nor desirable.

I think the House will wish to know as I was invited to make this study, that I have made inquiries into the law of other countries and, in particular, the United States of America. So far as I can ascertain, in each of the 20 American States which recognise some form of right of privacy such as this Bill seeks to create, this result has been achieved by judicial interpretation of the Common Law. In the only three States (New York, Virginia and Utah) in which any legislation has been passed on the subject, that legislation is practically confined to the use of a person's photograph or name without his consent in connection with advertising or for other commercial purposes. I observe that the Guardian suggested legislation an these lines. This would, of course, be much more limited in its scope and effect. In any case, I do not think we should assume that the courts here are powerless to provide a remedy where injury has been done by the unauthorised use of a person's name.

I have not been able to find any other examples of legislation which has successfully avoided the dilemma to which I have referred—that is, of giving an effective right of privacy without interfering with the legitimate freedom of the Press. There appears to have been no such legislation in any Common Law country in the Commonwealth. It is true that some countries whose systems are based on Roman Law have enacted legislation in this field; but their law is founded on a concept of "right of personality" which is foreign to our jurisprudence. Moreover, I understand that legislation in this field introduced in 1959 by the Federal German Government aroused strong opposition and has now been withdrawn.

In our previous debate on this Bill, my noble and learned friend Lord Denning referred to the possiblity that our courts might evolve some Common Law rule akin to that prevalent in the 20 States of the United States of America which recognise some form of right of privacy. My Lords, I should not like to express any opinion on the possibility of your Lordships' House, in its Judicial capacity, establishing such a right here; but there is all the difference in the world between developing a rule of Common Law by the gradual and empirical method of judicial decision, on the one hand, and establishing it by "ready-made" legislation on the other.

It may be suggested—indeed, it was suggested in the article in the Guardian to which I have already referred—that the present state of the law should be reviewed by an authoritative body such as the Law Reform Committee. I think that there are objections to such a course. It would not be appropriate to ask any Committee, however authoritative, to express an opinion on whether there is already a right of privacy in Common Law which the courts could recognise, as my noble and learned friend Lord Denning has already suggested might be the case. It would be quite wrong to ask a Committee to express a view on a matter of this kind, particularly where the Committee included Judges who might have at any time to decide the matter in their judicial capacity.

Furthermore, I do not think that it would be satisfactory to ask a Committee to consider how intrusion on privacy could best be prevented with regard for the freedom of the Press, assuming that the right of privacy does not at present exist. I should certainly not want to refer a matter of this kind to the Law Reform Committee, because I think it is most important that that Committee should not be asked to consider questions which may become matters of political controversy. And the problem here, I think, is as much a political as a legal one, though not, of course, in the Party political sense. No doubt we could ask some other Committee, which included laymen as well as lawyers, to look at this matter, but I very much doubt whether any Committee could find a satisfactory solution to a problem which has baffled everyone else who has considered it so far. The Porter Committee on the Law of Defamation, as I said on Second Reading, gave some consideration in 1948 to the question of privacy but were unable to suggest any satisfactory answer to a problem which dealt primarily, as they said, with offences against good taste. I am very ready to consider any solution which ma} be suggested, but I do not think that it would be very helpful for us to transfer the burden of finding the solution to a Committee in the way that has been suggested.

I apologise most sincerely to your Lordships for taking up so much of your Lordships' time on this question, but I was specially asked by a number of noble Lords, privately as well as publicly, to consider these aspects of the matter, and I felt that it was only courteous and fitting that I should explain to my noble friend Lord Mancroft that I had made these inquiries and their result. I am sorry if I have not been able to help, but I hope that my progress report will show my noble friend that I was not sulking in my tent after the defeat which he so nobly inflicted upon me.


My Lords, I presume that after this exchange, the Bill is dead, like the Road Traffic Bill and the Weights and Measures Bill. I must say that this has been a sad performance. The noble Lord, Lord Mancroft, who brought the Bill in, found complete support from some of us. I supported the Bill from genuine conviction, because I believe in the principle of this Bill. Now the noble Lord comes along and wants—or, rather, is prepared for—the Bill to commit suicide. The noble and learned Viscount the Lord Chancellor is clearly opposed to the whole idea of the Bill and wants it to be assassinated, and he appears as chief assassin on behalf of the Government. In the circumstances, I suppose that there is nothing to do but let it go; but if the noble Lord had divided the House, I should have voted with him. I think that the Amendments would have improved the Bill.

Most journalists are decent chaps and most newspapers are decently conducted, but there is an abominable minority who interfere with the private lives of people, including people who are suffering acute distress because of bereavement. I have great respect for the noble and learned Viscount the Lord Chancellor, but in all my life I have never heard anyone make a more unhelpful reply than he made this afternoon. Obviously he wants the Bill dead, because he does not want the Press to be controlled in this legitimate and restrained manner. I think that the noble and learned Viscount's attitude is shocking. I hope that the noble and learned Viscount will forgive me, but I do not feel too happy about him this afternoon. I am sorry about it. The Government have made a mess of their legislative programme and now the noble Lord has made a mess of it. I think that the best thing to do is to bring in this Bill, or a Bill like it, again next Session and let us have a good "go" at it.


My Lords, while not questioning one word which the noble and learned Viscount the Lord Chancellor has said, I do hope that my noble friend Lord Mancroft will take the excellent advice which he quoted and try again, because I feel that the principles behind this Bill are right. I agree with what the noble Lord, Lord Morrison of Lambeth, has said. There is need for legislation such as the Bill suggests. I am sure that my noble friend is able enough to introduce a Bill which will be more successful than this one.


My Lords, as one of those who both spoke and voted against the Bill last time, I feel that I must slightly come to the defence of the Government. I too, am greatly in favour of the principle behind the Bill, but I know from experience that many respectable local newspapers are exceedingly nervous about the implications of this Bill, as it stands, even were it amended in the way my noble friend Lord Mancroft has suggested in his first Amendment, which admittedly would make lit better. The Bill is causing some newspapers considerable worry about how to conduct their reporting in future. The local newspaper is very dependent on local news about local people and on the whole, in the opinion of many, they would not be covered by the second clause. So I hope that my noble friend will withdraw this Bill. Possibly if he can devise some method which would incorporate the principle, but not the present words, he could reintroduce the Bill next Session.


My Lords, may I make a suggestion to the noble Lord, Lord Mancroft, of which he may see fit to take advantage, if, as I hope he will, he reintroduces the Bill in another Session? It is clearly a Bill that needs very careful and detailed consideration. It is clearly a Bill on which we ought to hear, in fairness, the views of the Press. Therefore, it seems to me eminently a Bill which should be referred, not to a Committee of the Whole House, but to a Select Committee.

When I first sat in your Lordships' House, many Bills of this character were referred to Select Committees and I very much regret that that practice appears to have lapsed. I would beg my noble friend Lord Mancroft to give consideration to this suggestion, which I think would reconcile a number of different views on the merits of the Bill.


My Lords, I am very grateful to your Lordships for the kind and helpful advice over my little Bill. I am particularly grateful to the noble and learned Viscount who sits on the Woolsack for the obvious care and attention which he has taken to go into the difficult and technical matters which I fully realise are implicit in the nature of the subject. I thank him warmly for the care he has obviously given to it, when he has so much more to occupy his professional attention. I quarrel with only one remark that he made. He said that the question had baffled everybody who had considered it. It did not baffle me. That is why I produced my Bill.

I realise, however, that your Lordships, with the possible exception of the Lord, Lord, Lord Morrison of Lambeth, who has proved such a stout ally, are not in favour of my proceeding with the Bill at the moment. I should like to assure the noble Lord, Lord Morrison of Lambeth, that my Bill is not dead. It has, for the moment, sunk, but not without a trace. It is sunk for the first time, and, in the company of the Weights and Measures Bill, the Road Traffic Bill and many others, it will come to the surface again in the not-too-distant future. I am happy to think that the noble Lord, Lord Morrison of Lambeth, will be standing on the bank, with hand outstretched, to welcome it ashore. But, my Lords, I can take a hint as well as the next man; and the hint has been given to me clearly this afternoon. Bearing that hint in mind, I ask your Lordships' leave to withdraw my Motion that the House do now resolve itself into Committee on this Bill.

Motion, by leave, withdrawn.