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4.45 pm
I assume that that is intended to discourage the courts from developing a law of privacy on the sole basis of article 8's being given further effect in domestic law. But I must tell the Opposition that there are several difficulties in such an amendment, although of course I understand why it has been put forward as a vehicle for a debate about the connection between the development of the common law and that of the statutory law.
First, such an amendment would not prevent the courts from developing a law of privacy through the existing common law, for example by developing the law on breach of confidence, which has advanced to quite a degree over the past three decades. Secondly,the requirement to adjourn proceedings pending parliamentary consideration of a court report would add to delays in the court system. Thirdly, there is no provision for what is to happen after Parliament has debated the report. In particular, there would be nothing to prevent the court from proceeding to grant a remedy for a breach of article 8.
Fourthly, and above all, I urge the Committee to recognise a profound error in the thinking behind new clause 7, which collides with a fundamental pillar of our constitution--the separation of powers between the judiciary and the legislature. It is one of the bases of the rule of law that the courts should be able to say whatever they want, even if that is inconvenient or unacceptable to Members of Parliament and Ministers. So long, but only so long, as the courts are willing to show that independence, can there be a democracy and the rule of law in this country, or in any other country.
To interweave the legislature and the judiciary would lead judges to think, "My intellect, wisdom and sense of public purpose require me to do one thing, but on the other hand I have Parliament looking over my shoulder suggesting that I do something else." That seems to me unacceptable, so I hope that the Opposition will not press that point too far.
New clause 7 would provide that in a case where a court had to decide between a claim under article 8 and a claim under article 10, it should normally give precedence to the article 10 rights. That would be especially so in connection with the right to impart or receive information about matters of public interest.
The difficulty with that new clause is that it goes further than the terms of the convention and Strasbourg case law. Nothing in the convention suggests that any one right is normally to be given precedence over any other right. The courts will need to balance the competing claims and come to a decision on the facts of each case, taking account of any relevant Strasbourg case law. Although the European Court of Human Rights has stressed the great importance attaching to the right to freedom of expression, it has not gone as far as new clause 7 would go.
I remind the Opposition that the same issue arose on the question of how far we could protect the position of the Church under new clause 9, which the Committee has
approved. Then, we said that where an issue of the exercise of religious freedom under the convention came up, the court should have particular regard to the importance of that right. That is exactly what we are saying in subsection (4) of new clause 13; we use the phrase "particular regard".
So far as we are able, in a manner consistent with the convention and its jurisprudence, we are saying to the courts that whenever there is a clash between article 8 rights and article 10 rights, they must pay particular attention to the article 10 rights. I think that that is as far as we could go, and I hope that, on consideration, the Opposition will think so, too. We must strike a balance, and we believe that in new clause 13 we have got the balance right.
I repeat that I am extremely grateful to Lord Wakeham and his colleagues for all the consideration that they have given to helping us to achieve what I believe is a proper balance.
Sir Norman Fowler (Sutton Coldfield):
As the Home Secretary said, new clause 13 is important; as he also mentioned, we have tabled new clauses of our own on the same subject. I begin by declaring an interest, as Idid earlier, as non-executive chairman of Regional Independent Media, which publishes newspapers in both Yorkshire and Lancashire.
The only difference between the Home Secretary and me concerns the relative merits of the Lancashire Evening Post and the Lancashire Evening Telegraph. I shall try to educate the right hon. Gentleman about the former; I know that he is familiar with the latter.
The new clause is not exclusively about newspapers. Just as important, it covers broadcasting and any other areas where the right to freedom of expression may be affected. This is not remotely to do with party politics. I acknowledge that there are differing views in both our parties--I say that to protect myself at the outset from my hon. and learned Friend the Member for Harborough (Mr. Garnier).
The Government have repeatedly said--this is my first general point--that they do not intend to introduce a general law of privacy. The Home Secretary has stated that the Government do not accept that there is a case for general legislation on the matter. Others would take a different view; as it happens, mine is the same as the Home Secretary's. There are hon. Members who believe that we need a new law--there have been a range of attempts to introduce one over the past 10 years. We can all agree--whatever our stance on a general law of privacy--that we should not like a new privacy law to come in by accident, by mistake, or by the back door.
It is one thing to set out proposals openly and for debate; it is quite another to slip through regulations without their full consequences being understood.
Clause 1 sets out the European convention rights that are given effect by the legislation--including article 8, which concerns respect for private and family life. That article states that a public authority should not, except in certain exceptional circumstances, interfere with the exercise of a right to that respect: in other words, it is the right of privacy.
Article 10, by contrast, sets out a right to freedom of expression and to publish information. Clearly, a balance must be struck between the two rights. The right to free speech and free reporting is, after all, basic in a democratic society.
When last we debated this issue in Committee, I offered the example of Mrs. Maclean, the wife of the traitor Donald Maclean who disappeared to Russia with Burgess. When she was left behind, the Daily Express watched her and was roundly condemned for that alleged intrusion on her privacy. In the end, however, she did exactly what the newspaper thought she would, and disappeared behind the iron curtain. That is perhaps an extreme example of the possible clash between the privacy of the individual and a newspaper's freedom to report.
That is why new clause 7 tries to inject some certainty, by stating that a court shall,
My second general point is that clause 6 makes it unlawful
On Second Reading in another place, the Minister, Lord Williams of Mostyn, said that he anticipated that the BBC would be a public authority, that Channel 4 might be one, and that commercial television might not be. Even more dramatically, the Lord Chancellor proceeded on the basis that the Press Complaints Commission was not a public authority and was therefore not covered.
According to The Guardian--the Home Secretary and I are both devoted readers--the Lord Chancellor dismissed with contempt any argument against his stance, in particular the protests of the Secretary of State for Culture, Media and Sport. He did so on the ground that the Secretary of State was only a layman, whereas the Lord Chancellor was an experienced lawyer. As it happened, the layman was right; I can only hope that his victory will serve him well in the forthcoming reshuffle. I doubt whether it will, but he deserves credit for being right on this issue.
Sir Norman Fowler:
The Home Secretary is coming to the aid of the Lord Chancellor.
Mr. Straw:
As the Committee will know, even Homer nodded. It shows the Lord Chancellor's generosity of spirit that he came back and said that, on further consideration, his initial view had been incorrect, and there was
"where the right to impart or receive information about matters of public interest is at issue, give precedence to rights arising under Article 10."
That is a rather broad-brush approach, and I do not intend to press the new clause--but we wanted to set out our view.
"for a public authority to act in a way which is incompatible with a Convention right."
The Home Secretary, not entirely without reason, glossed over this part of the debate. What is and what is not a public authority is crucial, but we have been subjected to a bewildering range of Government advice on that--[Interruption.] I note that the right hon. Gentleman is looking for his folder, so I shall give him time to look up what he needs.
"a disposition on the part of the Courts to regard the PCCas a 'public authority'."--[Official Report, House of Lords, 24 November 1997; Vol. 583, c. 784.]
2 Jul 1998 : Column 545
As to our interpretation of clause 6--the acts of public authorities--I can say without exaggeration that my postbag has been almost full of compliments for the exquisite clarity with which I presented an interpretation of how clause 6 would operate--
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