Previous SectionIndexHome Page


Mr. Douglas Hogg (Sleaford and North Hykeham): Does the right hon. Gentleman accept that hon. Members who support the principle of incorporation remain deeply concerned about the provisions of the remedial order procedure, which depend on secondary legislation Orders in Council? Can he reassure us that, in the great generality of cases, primary legislation will be amended only by primary legislation, and that the provisions in clauses 10 to 12, which deal with the affirmative resolution procedure, will be activated only in instances of real emergency? If he were able to say that, he might gain much more support in the House than would otherwise be forthcoming.

Mr. Straw: I understand the concerns expressed by the right hon. and learned Gentleman; they were raised in the other place and were the subject of extensive debate. I cannot give him the undertaking that he seeks. However, I can say, first, that occasions on which the courts declare an Act of this Parliament to be incompatible are rare; there will be very few such cases. Secondly, the purpose of remedial action is to try to resolve the current paralysis, which is to nobody's advantage. It is not to take away anyone's rights; it is to confer rights. Thirdly, hon. Members will have every opportunity to discuss this matter in great detail in Committee.

In our judgment, these fast-track provisions offer far more safeguards than were provided under the European Communities Act 1972, which the right hon. and learned Gentleman's party supported. Under the 1972 Act, Parliament cannot vote on any declaration of the European Court of Justice that our law is outwith the ECJ; the law must be changed. Furthermore, the Bill provides a better and fairer procedure for deregulation than that laid down by the previous Administration.

Mr. Dominic Grieve (Beaconsfield): May I pick up what was said by my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg)? Many Conservative Members who sympathise with the Government's aims feel that, if the Bill is to work, the House of Commons--or, rather, Parliament--must be seen to be working with the courts to allow human rights to exist and to be enforced. We feel that any derogation--leaving aside what earlier Governments may have done, and the presence of the Henry VIII clause--is massively undesirable.

Mr. Straw: I understand the hon. Gentleman's point, but, in Committee, I hope to convince both him and the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) that, in practice, the Bill will ensure that people's rights--which the courts have declared to be rights--are brought to fruition, and also that we do not repeat the position relating to Chahal, which is unsatisfactory all round. That, however, remains to be seen.

Mr. Simon Hughes (Southwark, North and Bermondsey): The Home Secretary will know that I fully

16 Feb 1998 : Column 772

support the Government's incorporation of the convention into domestic law, and that I have worked towards that end in the Council of Europe. May I, however, ask him to test the central point that he is making against the example that I am about to give?

If a Government introduced legislation or other rules banning members of an organisation such as Government communications headquarters--GCHQ--from belonging to a trade union, would they be able to go to a British court immediately for a remedy that would give them the right to union membership, freedom of expression and freedom of association? If Parliament voted by a majority to prevent those people from having that right, would it be able to maintain the denial of liberties that the convention requires them to have?

Mr. Straw: The Bill makes the position clear, in clause 4(6) and elsewhere. Clause 6 excludes the Houses of Parliament from the category of public authorities, for very good reasons. What the Bill makes clear is that Parliament is supreme, and that if Parliament wishes to maintain the position enshrined in an Act that it has passed, but which is incompatible with the convention in the eyes of a British court, it is that Act which will remain in force.

There is, however, a separate question, which is why, in most instances, Parliament and Government will wish to recognise the force of a declaration of incompatibility by the High Court. Let us suppose that a case goes to Strasbourg, where the European Court decides that an action by the British Government, or the British Parliament, is outwith the convention. According to 50 years of practice on both sides, we always put the action right, and bring it into line with the convention. One of the questions that will always be before Government, in practice, will be, "Is it sensible to wait for a further challenge to Strasbourg, when the British courts have declared the provision to be outwith the convention?"

Mr. Kevin McNamara (Hull, North): The problem for many of us is not the existence of the provision, but the fact that the Court has not an absolute right to strike down legislation. If we are to have the declaration of incompatibility, will there be a time scale within which the Government will correct the position? Otherwise, as often happens in such cases, someone who might not be the most perfect person--someone who might attract considerable moral opprobrium, and no sympathy from the community or, certainly, the popular press--might bring a case and be left dangling in regard to the correcting of the position relating to a particular right.

Mr. Straw: I do not believe that writing a timetable into the Bill would be desirable, or consistent with the scheme of the legislation. It would challenge the sovereignty of Parliament. In practice, however--even under the current arrangements--Governments always move to remedy a matter if it has been found in Strasbourg to be outwith the convention. The best example from my hon. Friend's point of view is the decision that the European Court made in 1995 in respect of the three people--I think that they were Provisional IRA terrorists--who were shot dead in Gibraltar. The previous Government certainly did not like the decision in that case, but they acted in accordance with the judgment.

16 Feb 1998 : Column 773

Before I turn to the detail of the Bill, I should like to comment on two issues that have gained particular prominence: the positions of the media and the Churches. Both have concerns that centre on the provisions of clause 6, relating to public authorities, so I must briefly explain the principles underlying that clause.

Under the convention, the Government are answerable in Strasbourg for any acts or omissions of the state about which an individual has a complaint under the convention. The Government have a direct responsibility for core bodies, such as central Government and the police, but they also have a responsibility for other public authorities, in so far as the actions of such authorities impinge on private individuals.

The Bill had to have a definition of a public authority that went at least as wide and took account of the fact that, over the past 20 years, an increasingly large number of private bodies, such as companies or charities, have come to exercise public functions that were previously exercised by public authorities. Under UK domestic common law, such bodies have increasingly been held to account under the processes of judicial review.

As was generally acknowledged in debates in another place, it was not practicable to list all the bodies to which the Bill's provisions should apply. Nor would it have been wise to do so. What was needed instead was a statement of principle to which the courts could give effect. Clause 6 therefore adopts a non-exhaustive definition of a public authority. Obvious public authorities, such as central Government and the police, are caught in respect of everything they do. Public--but not private--acts of bodies that have a mix of public and private functions are also covered.

I shall now deal with the position of the media under the Bill. The convention contains two articles of particular concern to them: article 10, the right to freedom of expression, and article 8, the right to respect for private and family life. Given the concerns of the press and the Press Complaints Commission about the possible implications of incorporation for a law of privacy, it is worth pointing out that, in practice, the convention has already been extensively used to buttress and uphold the freedom of the press against efforts by the state to restrict it. There are at least four leading United Kingdom cases in which the Strasbourg Court has done that--and not one on privacy has detracted from such a line.

I am placing in the Library a paper prepared by my Department that contains details of cases on freedom of expression. Among others, there is the 1979 case concerning The Sunday Times, where the European Court found that an injunction preventing publication by the newspaper of material on the thalidomide disaster amounted to a violation of article 10. In its judgment, the Court referred to


There was the 1991 "Spycatcher" case, where the European Court held that the continuation of an injunction preventing newspapers from printing excerpts from the book was contrary to article 10. In that case, the Court used the following words, with which I agree, and which I think the media would also endorse:


    "the dangers inherent in prior restraints are such that they call for the most careful scrutiny on the part of the Court. This is especially so as far as the press is concerned, for news is a perishable commodity and to delay its publication for even a short period may well deprive it of all its value and interests."

16 Feb 1998 : Column 774

I could also quote from other United Kingdom cases where article 10 has been successfully invoked--for example, the 1995 Tolstoy libel case on the amount of damages awarded in defamation actions, and the 1996 Goodwin case concerning the anonymity of press sources. There is also Strasbourg case law involving other convention countries, all supporting the view that the European Court of Human Rights accords a high value to the right to freedom of expression and recognises the crucial role of the press to a healthy democracy.

One benefit of incorporation for the press is that United Kingdom courts will be required to take account of European Court judgments and will thereby develop more positive concepts about the right to freedom of expression.

I emphasise that point with good reason. We have repeatedly stated our support for the freedom of the media and our opposition to a statutory law of privacy. We do not believe that the Bill is contrary to that position. We do not believe that it will lead to the courts developing the common law in a way that will inhibit legitimate press investigations into matters of public interest. Nor do we believe that it will lead the courts to issue injunctions in respect of stories in which there is a public interest in publication.

Despite all that, I recognise that the press are bound to be alive to any possibility that their freedoms might be eroded gratuitously by legislation before the House. In turn, the Government and Parliament have a corresponding duty to seek to assuage those anxieties if we possibly can. That is precisely what we have done in respect of data protection. We have proposed legislation on data protection, not because of any manifesto commitment but because of the imperative of an EU directive passed by the previous Administration.

The press--through the chairman of the Press Complaints Commission, Lord Wakeham--raised serious concerns about the impact of the data protection directive in the Bill on investigative journalism. I therefore readily agreed that the Under-Secretary of State for the Home Department, my noble Friend Lord Williams of Mostyn, should hold discussions about those concerns with Lord Wakeham. The outcome of those discussions was fruitful and satisfactory, and is now to be found in clause 31 of the Data Protection Bill.

Under that clause, the duty that would otherwise be placed on the press to disclose data that they held on those they were investigating is abrogated if the data are being processed for a journalistic, literary or artistic purpose, and


One key test of public interest in practice is whether there has been compliance with the Press Complaints Commission code--thus preserving the self-regulation of the press.

The Human Rights Bill is, of course, different from the Data Protection Bill, but, at their root, the anxieties expressed by the media about both Bills are the same: whether they will interfere with freedom of expression; whether they will lead to much greater use of injunctions that halt publication in advance; and, in the case of the Human Rights Bill, whether the Bill itself will encourage the development of a privacy law.

To try to allay these anxieties, Lord Williams and I have been involved in detailed discussions with Lord Wakeham. In particular, we have considered whether

16 Feb 1998 : Column 775

safeguards similar in framework to those set out in clause 31 of the Data Protection Bill could be brought into this Bill, without compromising its essential purpose.

I am pleased to tell the House that these discussions have borne fruit, and we have reached an understanding with Lord Wakeham, on behalf of the Press Complaints Commission, on a framework for amendments to the Bill which we believe would satisfactorily safeguard the position of the press in a way that is more comprehensive than providing an exemption for the Press Complaints Commission under clause 6.

The precise wording of the amendments has not yet been agreed, and I should be happy to discuss their terms not only with Lord Wakeham, but with the right hon. Member for North-West Cambridgeshire(Sir B. Mawhinney), the right hon. Member for Berwick-upon-Tweed (Mr. Beith) and the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan).

The components of such an amendment would be, first, an explicit provision that no relief or remedy is to be granted regarding article 8 on respect for private life unless the respondent is either present or represented, or the applicant has taken all practicable steps to alert the newspaper against which the application is brought--that would virtually rule out pre-publication injunctions being granted ex parte; secondly, an explicit provision that in any case in which a person applies for relief or a remedy on article 8 grounds related to respect for private life, and the granting of a remedy would raise issues concerning an article 10 convention right, the court must have particular regard to freedom of expression--this would be consistent with the jurisprudence of the European Court, which already lays great emphasis on article 10 rights, but it could also constitute a useful signal and reminder to the United Kingdom courts; thirdly, a requirement for the court--in the case of an application involving journalistic, literary or artistic material--also to take into account the extent of the public interest in the publication in question, whether the newspaper had acted fairly and reasonably, and whether it had complied with the provisions of the Press Complaints Commission's code.

Provisions along those lines, modelled broadly on clause 31 of the Data Protection Bill, would not be inconsistent with the convention, but would send a powerful signal to the United Kingdom courts that they should be at least as circumspect as judgments of the European Court of Human Rights have been about any action that would give the article 8 rights any supremacy over the freedom of expression rights in article 10. I hope and believe that an amendment along those lines will deal satisfactorily with the concerns of the press.


Next Section

IndexHome Page