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Mr. Straw: The answer from someone much more learned than I is that it could be. We discussed exemplary damages in such situations earlier.
Mr. Garnier: And aggravated damages
Mr. Straw: I am grateful for my continuing education on the issue from the hon. and learned Gentleman. We should all be grateful for that advice because, after all, it is entirely free.
Mr. Straw: Up to a point, the hon. and learned Gentleman says.
Subsection (4) requires the court to have particular regard to the importance of the article 10 right to freedom of expression. Where the proceedings concern journalistic, literary or artistic material, the court must also have particular regard to the extent to which the material has, or is about to, become available to the public--in other words, a question of prior publication--and the extent to which publication would be in the public interest. If the court and the parties to the proceedings know that a story will shortly be published anyway, for example, in another country or on the internet, that must affect the decision whether it is appropriate to restrain publication by the print or broadcast media in this country.
Under subsection (4), the court must also have particular regard to any relevant privacy code. Depending on the circumstances, that could be the newspaper industry code of practice operated by the Press Complaints Commission, the Broadcasting Standards Commission code, the Independent Television Commission code, or a broadcaster's internal code such as that operated by the BBC. The fact that a newspaper has complied with the terms of the code operated by the
PCC--or conversely, that it has breached the code--is one of the factors that we believe the courts should take into account in considering whether to grant relief.
Mr. Dominic Grieve (Beaconsfield):
I am sorry to take the right hon. Gentleman back slightly, but would he care to amplify on the definition of "the public interest", which is a critical phrase in subsection (4)(a)(ii) of the new clause?
Mr. Straw:
I was hoping not to have my brain exercised in such a challenging way. The courts are well versed in making judgments about the balance between a private interest of an applicant before them and the wider public interest. That is inherent in any case in a clash between article 10 and article 8. It is also inherent in the way in which the courts until now have dealt with many issues surrounding proceedings for defamation. The European convention and the European Court of Human Rights have devoted quite a lot of time and effort to developing the concept of the public interest. Without being too tautologous, one of the points of the public interest is, to quote the words of the Strasbourg court in Handyside v. the United Kingdom in 1976, that
Mr. Peter Bottomley:
I am grateful to the Home Secretary for allowing me to intervene a second time. On the subject of privacy codes, one of the interesting questions that need to be put to publishers, proprietors and editors is: what are their own standards that their own staff are supposed to meet? Obviously, there are times when, in the public interest, they have to investigate--to act like a vacuum cleaner and suck up the dirt--in order to discover what is right and justifiable to print. They do not have an easy job, but, instead of relying solely on the Press Complaints Commission code or the similar requirements for broadcasters, will the Home Secretary confirm that all such organisations ought to have their own standards about which their own staff and freelances know; that those standards should be made public; and that if, when challenged, it is shown that they have fallen below their own standards, as well as below the standards of the PCC or the broadcasting authorities, that would class as a "relevant privacy code" under the legislation?
Mr. Straw:
First, the hon. Gentleman asserts that all those organisations ought to have their own privacy code. I understand his point, but I do not think that it is up to us to assert that an individual private newspaper ought to have its own privacy code. However, it is very much in newspapers' interests to have such a code, because otherwise they would not get the benefit of the relevant limb, which is subsection (4)(b) of the new clause.
Secondly, I would point out that national newspapers and those belonging to the regional newspaper associations are all members of the Press Complaints Commission; therefore, they have signed up to the PCC code, which, as far as I am aware, is the strongest and certainly the most public press code available. It may well
be that other newspapers, both those within and those outside the PCC framework, have their own codes on staff conduct. Plainly, the higher the conduct required, the better for the public and--this is why the provision creates a virtuous circle--the better the defence available under the new clause to a newspaper, should it be subject to an application for relief, for example, under article 8.
Mr. Martin Linton (Battersea):
While my right hon. Friend is still on the subject of subsection (4)(a)(i), I should be grateful if he clarified the exact meaning of the material that is, or is about to become, available to the public; and whether that word "public" would have a geographical limitation. This is a "Spycatcher" clause and the argument used in the "Spycatcher" case was that the material was available to the public in any country other than the United Kingdom. In the only similar case--the one involving my right hon. Friend, to which he referred--the argument used was that the material was available to newspaper readers in Scotland. However, if the term "public" was interpreted in a very narrow way, such arguments might fail.
Mr. Straw:
There is no direct qualification to the word "public" in the new clause. Ultimately, it would be a matter for the courts to decide, based on common sense and proportionality. The fact that the information was available across the globe in very narrow circumstances would not be weighed in the balance. The fact that, in the situation in which I was involved at Christmas, the information was fully public in newspapers in Scotland and, by virtue of that fact, available in newspapers on sale at every London railway terminus and airport, made the notion of protection by an injunction issued in courts covering only England and Wales rather risible. The courts would be bound to take such facts into account. As I said earlier, they would also take into account the extent to which the information was available in another country or on the internet, but in each case, the courts would have to apply balance and proportionality.
The reference in the new clause to
Subsection (5) provides that references to a court include references to a tribunal, and that references to relief include references to any remedy or order, other than in criminal proceedings. We drafted the amendment with civil, rather than criminal, proceedings against the media in mind. Without such an exclusion, judges wanting to impose reporting restrictions in a criminal trial would, for example, have to consider any relevant privacy code, although plainly it would not be appropriate in that context.
Nevertheless, as public authorities, the criminal courts will of course, in the same way as other courts, be required not to act in a way that is incompatible with articles 8 and 10 and other convention rights. The special provision that we are making in new clause 13 does not therefore exempt criminal courts from the general obligations imposed by other provisions of the Bill. However, had we included criminal proceedings under new clause 13, we would have made the running of criminal trials very complicated.
I hope that the Committee found that explanation useful. I shall now make some general points and then deal with the Opposition new clauses. Much of the debate on this issue in recent months has concerned the Press Complaints Commission. Indeed, amendments were tabled that would have exempted it from the public authority provisions of the Bill.
As the Committee will know, we did not consider that the idea of exempting any particular organisation from the provisions of the Bill would have been consistent with the scheme of the Bill. Indeed, it could have been inconsistent with the convention as well. In any event, new clause 13 seems to us a better and more thorough response to the concerns that have been expressed.
As the regulator of the newspaper industry, the PCC has an obvious interest in any amendment to safeguard the freedom of the press. As I explained on Second Reading, Lord Williams of Mostyn and I had been involved in detailed discussions about that with the chairman of the PCC, Lord Wakeham, and we reached an understanding on a framework for amending the Bill.
The new clause was drafted in consultation with Lord Wakeham and representatives of the national and regional press. They have given it a warm welcome, as Lord Wakeham made clear in a statement earlier today. I am grateful to him for having said:
Similarly, on self-regulation, the new clause provides an important safeguard by emphasising the right to freedom of expression. Our intention is that that should underline the consequent need to preserve self-regulation. That effect is reinforced by highlighting in the amendment the significance of any relevant privacy code, which plainly includes the code operated by the PCC.
I am glad that we have been able to frame an amendment that reflects the Government's stated commitment to the maintenance of a free, responsible press, and the consequent need for self-regulation, while maintaining the protection of the convention that all our citizens should, and do, enjoy.
I have explained the effect that we want to achieve with our new clause. If, for any reason, it does not work as we envisage, and press freedom appears at risk, we shall certainly want to look again at the issue. I shall now deal briefly with the Opposition new clauses.
"freedom of expression constitutes one of the essential foundations of a democratic society, one of the basic conditions for its progress, and for the development of every man"--
and these days, I have no doubt, every woman. That is a brief sketch of a subject on which I have every confidence in the courts' ability to make good judgments in particular cases.
"conduct connected with such material"
is intended for cases where journalistic inquiries suggest the presence of a story, but no actual material yet exists--perhaps because the story has not yet been written.
"I warmly welcome it"--
the new clause--
"as I know does the newspaper industry--and am grateful for the skilful way the Government has dealt with the potential problems."
The Government have always made clear our support for effective self-regulation as administered by the Press Complaints Commission under its code of practice. We have also said that we have no plans to introduce legislation creating a general law of privacy. On the question of prior restraint, our intention, as I said in the House on 16 February, is that the thresholds that the new clause sets will mean that interlocutory injunctions should be granted ex parte only in the most exceptional of circumstances.
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