HL Deb 24 November 1997 vol 583 cc754-9

3.19 p.m.

The Lord Chancellor (Lord Irvine of Lairg)

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

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

On Question, Motion agreed to.

House in Committee accordingly.

[The CHAIRMAN OF COMMITTESS in the Chair.]

Clause 6 [Acts of public authorities]:

Lord Simon of Glaisdale moved Amendment No. 31: Page 3, line 40, leave out ("one or more of").

The noble and learned Lord said: We now come to Clause 6, which is one of the most important clauses in this important Bill because on its terms depends to what extent persons who are aggrieved in this country by offences against their human rights still have to go to Strasbourg—in other words, it is a question of how widely "public authorities", which are the only bodies specifically enjoined to observe the provisions of the convention, are defined.

At first sight, the amendment appears to be a drafting amendment, as it is, but it is an important one. Clause 6(1) has, I think, an unintended effect on the Bill. It states: It is unlawful for a public authority to act in a way which is incompatible with one or more of the Convention rights".

The amendment seeks to leave out the words "one or more of', so that the subsection will read, "incompatible with the Convention rights".

That is because in some cases and, importantly, in the case of Article 8 (which guarantees privacy) and Article 10 (which gives the right to free expression) those two articles have to be balanced one against the other. What I am sure is an unintended effect is produced if attention is drawn only to one of those articles.

Perhaps I may give the Committee an example. The BBC is undoubtedly a public authority under the Bill as drafted. On the whole, the BBC is pretty good at observing the decencies of privacy. If there is one criticism to be made, it is perhaps that, like most photographers, the BBC's photographers seem to be most particularly engaged by expressions of human grief. They tend to take photographs of persons who are in tears after suffering some grievous sorrow. There is an example—it does not relate to the BBC—which came to the notice of the Press Complaints Commission and was upheld, of a local newspaper photographer photographing some sorrowing relatives as they returned from a funeral. Supposing the BBC had done that: it could be alleged that the BBC had offended against Article 8 which guarantees privacy, but it would have been entitled to say in an appropriate case that that article had to be balanced against the article giving a right to free expression.

This is an extremely well drafted Bill, as has been consistently pointed out in this Committee. That is not due merely to the draftsman (although this is obviously a most able draftsman); it is also due to my noble and learned friend because this is very much a Minister's Bill and its various components have been extremely accurately and skilfully fitted together so that it is a coherent and cogent whole. However, as the noble Earl, Lord Russell, indicated at an earlier stage, it is nevertheless a human artefact and human artefacts are liable, like all human endeavours, to be fallible. I suggest that there is a mistake in directing that one of the convention rights is sufficient to put the public authority in peril. As I see those two crucial convention rights operating, they have to be held in balance and the point of balance will, I think, be the public benefit.

Justice will hold the scales of justice with those two convention rights, one in one pan and one in the other, and will weigh the one against the other, the fulcrum being the public interest so that if there is only one to be considered, the Bill does not operate as I am sure that the Government and all those noble Lords who support the Bill, as I do, intend it to operate. I beg to move.

Lord Williams of Mostyn

I am most grateful to the noble and learned Lord, Lord Simon of Glaisdale, for his welcoming words about the general quality of the drafting of the Bill. I know that the officials who hear his words will welcome them, particularly as they come from such a distinguished source. I entirely endorse the noble and learned Lord's description of the internal code of the BBC as being a strict model which is generally regarded as a suitable code and which seems to be vigorously policed by the BBC.

As the noble and learned Lord the Lord Chancellor said on a number of occasions, what is intended as a consequence of the Bill, should it become law, is that a balancing act will necessarily have to be undertaken between Article 8 on privacy and Article 10 on freedom of expression. I entirely endorse what the noble and learned Lord, Lord Simon, said about the balancing exercise.

On earlier occasions the noble and learned Lord has sometimes chided us for having too adamant an approach towards any proposal for improvement. We have considered this amendment (because it might have been reached on an earlier occasion) and we should like to reflect on it with care and on whether the phrase which ultimately appears in the Bill should be, one or more of the Convention rights", as at present or, if the noble and learned Lord's amendment is successful, "the Convention rights", or the third alternative, which has been suggested in the interval between our first consideration in Committee and today, which is "a Convention right". I hope that the noble and learned Lord will accept my assurance that we shall reflect carefully on those three alternatives—that is, on the noble and learned Lord's proposed amendment, on the present wording, and on the further suggestion of "a Convention right"—and that we shall return to the matter at the next stage.

3.30 p.m.

Lord Simon of Glaisdale

That is a very welcome change from the first day of Committee when we had unremitting negatives from the Government. On that occasion, Members of the Committee were probably reminded of Goethe' s description of Mephistofeles as the spirit that always says "No". I would be very reluctant to see my noble and learned friend the Lord Chancellor in the company of Mephistofeles. I very much welcome the change indicated by the noble Lord, Lord Williams of Mostyn, that the Government will reflect upon the matter. It is a notable approvement. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Coleraine moved Amendment No. 31A: Page 3, line 40, at end insert ("except where the public authority is a person who is a public authority by virtue only of subsection (3) and the nature of the act is private").

The noble Lord said: This is a drafting amendment. If I do not altogether agree with what the noble and learned Lord, Lord Simon of Glaisdale, has just said about the drafting of the Bill, I should point out that in this case I am seeking to make good drafting better. I was not able to be present when the Bill was discussed on Second Reading, but I have read and re-read all that was said on that occasion.I should like to think that my amendment is constructive and that I may receive the same kind of warm commendation for it as the noble and learned Lord has just received for his. However, if I do not, I feel sure that it will tease something more out of the Government with regard to the complications surrounding the definition of "public authority" in Clause 6.

The amendment deals with subsection (3)(c), which provides that the expression "public authority" should include, any person certain of whose functions are functions of a public nature".

The drafting that I would also like to see improved is to be found is subsection (5) which says: In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(c) if the nature of the act is private".

I readily concede that, by all the normal standards of convoluted drafting, that subsection is crystal clear. Nevertheless, I found it bizarre to read that a person may ape the chameleon and be a public authority at one moment in relation to an act the nature of which is not private, but not be a public authority the next moment where the nature of the act is private. It seems to me that if a simple drafting amendment could allow a public authority to be a public authority for all the Bill's purposes, without in any way altering the sense of the legislation, it would be useful and make the understanding of what the Administration means by a "public authority" just a little more clearer and more accessible.

With my amendment, and my support for Amendment No. 42 which is tabled in the name of my noble friend Lord Wakeham—to leave out subsection (5)—I seek to provide that under subsection (3)(c) a "public authority" does not act unlawfully if it is acting privately. I hope that that suggestion will find favour with the Government. I beg to move.

Lord Henley

I should like to add a few words to what my noble friend Lord Coleraine said about his amendment, which he described merely as a drafting amendment. I have to say that we on this side of the Committee find Clause 6 rather difficult. I believe that the noble and learned Lord the Lord Chancellor said that "public authority" was fully defined in Clause 6. We have tabled a number of later amendments with which we shall be exploring that point. I should imagine that we shall be exploring it after the Statement has been repeated by the noble Lord the Leader of the House.

It would, therefore, be of some use if the noble Lord who is to reply for the Government could say a little more when responding to my noble friend's amendment on the definition of "public authority", so as to allow us a little time to ponder over such matters before we come to deal with later amendments on the clause. I certainly find it a very difficult clause to understand—and I speak not as an eminent lawyer as most speakers in this debate have been—and, indeed, a very difficult concept to understand. It would be useful to have such matters explained. I appreciate that it is often most difficult to explain them in language which a simple person can understand, but I would like to hear the exact meaning of the definition explained in simple terms.

Lord Lester of Herne Hill

As one of the later amendments has already been referred to and because of the way in which the amendments are grouped, I feel that I ought to say a few words reflecting the other side of the coin as regards Amendment No. 43, which stands in the name of my noble friend Lord Meston. My noble friend is currently detained in one of Her Majesty's courts in Chelmsford and apologises for his absence.

If one looks at Amendment No. 43, it will be seen that, as I shall explain later, it is designed to ensure that the mere fact that something is categorised as private will not necessarily take it outside the scope of the clause, especially as regards certain employment relationships. I shall return to that aspect later, unless the Committee would find it more convenient for me to deal with it now. I should point out that the matter has been raised by the Bar Council and is of some importance.

Lord Williams of Mostyn

If the noble Lord, Lord Lester, will forgive me, I shall not deal with Amendment No. 43 now bearing in mind the groupings which I believe have been agreed. We suggest that "public authority" is plainly defined in Clause 6. When the Bill is enacted, one will be dealing with two types of public authority—those which everyone would recognise as being plainly public authorities in the exercise of their functions, and those public authorities which are public authorities because, in part of their functions, they carry out what would be regarded as public functions. Examples vary, but I believe that the courts will have in mind changing social economic and cultural conditions when they come to consider particular decisions on particular aspects of a public authority.

We suggest that the purpose behind the noble Lord's amendment is unnecessary because the Bill already brings about what he wishes to achieve. As Members of the Committee have seen, Clause 6(1) makes it unlawful for a public authority to act in a way which is incompatible at present—subject to reflection on the amendment that we have just discussed—with convention rights. Clause 6(3)(c) provides that a "public authority" includes, any person certain of whose functions are of a public nature". Clause 6(5) provides that: In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(c) if the nature of the act is private". I believe that my noble and learned friend the Lord Chancellor gave an illustration on an earlier occasion. For example, Railtrack has statutory public powers and functions as the safety regulatory authority; but, equally, it may well carry out private transactions, such as the disposal of, the acquisition of, or the development of property.

If one follows the scheme through, we suggest that it is perfectly capable of being understood. The amendment would exempt from the prohibition in Clause 6(1) a public authority falling within Clause 6(3) in respect of its private acts. However, I venture to suggest to the Committee that that is already achieved, we say satisfactorily, by subsection (5). The other public authorities specified in Clause 6(3) are courts and tribunals which, we think, are in a very similar position to obvious public authorities, such as government departments, in that all their acts are to be treated as being of such a public nature as to engage the convention. I hope that I have given a helpful explanation—indeed, my response was intended to be helpful—and I ask the noble Lord to withdraw his amendment.

Lord Coleraine

Having heard what the Minister said in regard to my amendment, I beg leave to withdraw it.

Amendment, by leave, withdrawn.

Lord Hoyle

My Lords, I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

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