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Mr. Gerald Kaufman (Manchester, Gorton): Many of us will want to see the text of that amendment before coming to a judgment on it. I hope for a positive and clear answer to the following question: if my right hon. Friend seeks to make an amendment to ensure that article 8 does not have supremacy over article 10, will that amendment also ensure that article 10 does not have supremacy over article 8?
Mr. Straw: I cannot satisfy my right hon. Friend on that matter, because to do so would plainly make the
safeguards entirely circular, and we do not want to do that. I acknowledge that he has not had the opportunity to see our amendments, and I shall be happy to show them to him in due course.
Mr. Hogg: I welcome what the Home Secretary is saying, but does he acknowledge that, through the amendments that he wants to agree with my noble Friend Lord Wakeham, he is in reality seeking to amend the circumstances in which the courts can address the two articles? Has he asked himself whether those amendments, which would change the circumstances in which a right could be asserted under the convention, would be upheld by the Strasbourg Court, which is not bound by what he has just told the House? The judges there may well conclude that what he has just said is in itself a derogation from the convention.
Mr. Straw: The answer is yes: we have indeed asked ourselves that question, and I said only a moment ago that we were certain that provisions along those lines would not be inconsistent with the convention and would be fully consistent with the jurisprudence of the Strasbourg Court. As I explained, that fact was well set out in several judgments, including those on "Spycatcher" and on The Sunday Times and thalidomide. In those judgments, the European Court itself gives precedence to article 10 over article 8 when the freedom of the press and other media is involved.
Mr. David Ruffley (Bury St. Edmunds): In the context of articles 8 and 10, would the BBC and independent television companies be public authorities for the purposes of clause 6?
Mr. Straw: That is ultimately a matter for the courts, but our judgment is that the BBC will be regarded as a public authority under clause 6; independent television companies will not, but the Independent Television Commission will be.
Mr. Straw: I shall give way first to my right hon. Friend the Member for Manchester, Gorton (Mr. Kaufman) and then to the hon. Member for Aldershot (Mr. Howarth).
Mr. Kaufman: Will my right hon. Friend assure the House that the arrangements are the only ones arrived at, and that there is no question of the Press Complaints Commission being excluded from the definition of a public authority under clause 6?
We have before us, in the annexe that lays out the convention, a series of rights and freedoms that will be available under this legislation to all citizens of the United Kingdom. My assumption, when the Bill was introduced, was that all those rights and freedoms would be given equal weight. My right hon. Friend now appears to be telling the House--only a satisfactorily drafted amendment could possibly allay any misgivings on the matter--that the article 10 right will have greater weight than the article 8 right. Many Labour Members would be seriously disturbed by such a change.
Mr. Straw:
The answer to my right hon. Friend's first point is that we do not propose to table amendments that
On my right hon. Friend's second point, I ask him to look carefully at the document that I shall deposit in the Library, which sets out the development of jurisprudence by the European Court in Strasbourg on matters relating to articles 10 and 8. It is always the case that some legal concepts have greater force than others; it happens to be the case that the European Court has given much greater weight to article 10 rights of freedom of expression than to article 8 rights to privacy. We want to reflect that in our domestic law.
Mr. John Bercow (Buckingham):
Will the right hon. Gentleman give way?
Mr. Straw:
I promised the hon. Member for Aldershot that I would let him intervene, after which, if the hon. Member for Buckingham (Mr. Bercow) will forgive me, I must continue; many hon. Members want to speak in this debate.
Mr. Gerald Howarth (Aldershot):
I am grateful to the Home Secretary for giving way. Obviously, we need to see the detail of his proposals on how to reconcile articles 8 and 10. However, I am not clear about his proposals on injunctions that are sought ex parte in advance of publication. As he knows, once something defamatory has appeared in print, it is difficult to undo any damage that may have been caused. Does he intend, in effect, to abolish a citizen's right to seek an injunction in advance of publication?
Mr. Straw:
The hon. Gentleman is talking about ex parte injunctions in cases of defamation, but the Bill does not deal with the law on defamation; it deals with convention rights. It will ensure that it is extremely difficult to gain an ex parte injunction without notice in cases concerning convention rights. That is entirely right and proper in the circumstances that we have laid out, and it is also entirely consistent with the jurisprudence of the Strasbourg Court in the case that I have already cited.
The Churches have expressed concerns about the Bill's impact on them if they are held to be public authorities in carrying out some of their activities--for example, in conducting marriage ceremonies or running religious schools. They fear that the convention rights will be used against them, so that they will have to carry out those activities in contravention of their religious beliefs. As introduced in another place, the Bill did not require them to act against their conscience. In particular, it could not be used to require the Churches to conduct marriages between homosexual couples or divorcees, or to appoint atheists as head teachers of Church schools.
The convention places great store by religious freedom. Indeed, article 9 guarantees freedom of thought, conscience and religion. We therefore think that the Churches have much to gain from the convention rights being given further effect in our law. None the less, before coming to a final conclusion on the amendments
that were made in another place, I shall be happy to discuss those questions further with representatives of the Churches, and I shall put arrangements in hand to do so.
Miss Ann Widdecombe (Maidstone and The Weald):
Will the right hon. Gentleman give way?
Mr. Straw:
The right hon. Lady will forgive me for not giving way, as I am anxious to proceed.
I shall now deal briefly with the detail of the Bill and explain exactly how it will bring rights home. Clause 1 lists the convention rights to which the Bill will give further effect in our domestic law. Clause 2 ensures that, in giving effect to those rights, our domestic courts and tribunals have regard to Strasbourg jurisprudence.
Clause 3 provides that legislation, whenever enacted, must as far as possible be read and given effect in such a way as to be compatible with convention rights. We expect that, in almost all cases, the courts will be able to interpret legislation compatibly with the convention. However, we need to provide for the rare cases where that cannot be done. Consistent with maintaining parliamentary sovereignty, clause 3 therefore provides that if a provision of primary legislation cannot be interpreted compatibly with the convention rights, that legislation will continue to have force and effect.
A declaration of incompatibility will not affect the continuing validity of the legislation in question. That would be contrary to the principle of the Bill. However, it will be a clear signal to Government and Parliament that, in the court's view, a provision of legislation does not conform to the standards of the convention. To return to a matter that I discussed earlier, it is likely that the Government and Parliament would wish to respond to such a situation and would do so rapidly. We have discussed how that would operate and no doubt there will be further detailed discussions in Committee on the Floor of the House.
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