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'. In any proceedings where a court has to adjudicate between--
(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),
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.'.
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
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:
I hope that this provision will strike a chord with the hon. and learned Member for Harborough, who said:
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.
"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.
"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
2 Jul 1998 : Column 537circumstances, 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."
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