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5.15 pm

There are equally difficult cases involving children. It is unacceptable that children are frequently caught up in similar situations. On 7 May this year, the Daily Mail named a four-year-old child, whose photograph appeared on the front page of that paper, in the context of a story about the child's grandmother who had had the child's mother sent to prison. From my understanding of the story, the grandmother probably took the right action: the mother was involved in drugs, and so on. However, I question the newspaper's judgment in putting the name and photograph of that child on the front page. As I have said before, the last thing that a small child needs is for a mass circulation tabloid to print his or her name and photograph on its front page announcing that the child's grandmother had sent the mother to prison.

Who will intervene in such cases? The grandmother was clearly not prepared to do so in that case--perhaps she was poorly advised about the role of the media in that situation. Children must receive some protection, and I believe that article 8 will address that problem. That protection must be balanced against press freedom and, as the right hon. Member for Sutton Coldfield said, it is a delicate balance.

I suspect that the Minister will respond by saying that the solution involves case-made law, and he is probably right. However, the purpose of my intervention is to flag the importance of ensuring access to the law by people who are often on low incomes, who may be inarticulate and who, above all, are not experienced in handling the media and do not know about available remedies. Those people need the protection of article 8, and the courts must look carefully at privacy and the needs of family life when judging such cases.

We should not confuse those cases--as has occurred too often in the past--with the rights of the great, the powerful and the rich to privacy and freedom of the press. We must focus on the everyday cases that appear in so many tabloid newspapers. At present, ordinary people cannot get protection of the type that I hope the proposed new clause will provide. I think that it will meet that need, but any information that the Minister can provide in his winding-up speech will be welcomed by those who might wish to consider this discussion if they find themselves in similar circumstances.

Mr. Garnier: I begin, as I did on another occasion, by declaring my interest as a practitioner at the Bar in this area of law. However, that is perhaps not necessary, given that my right hon. Friend the Member for Sutton Coldfield (Sir N. Fowler) and the Home Secretary have declared it for me. I fear that my colleagues in chambers will snigger when they read the Hansard--if they get around to it--and see the kind things that the Home Secretary and my right hon. Friend have said about my prowess as a lawyer. However, I shall leave it there and bask in the glory, for what it is worth.

The Home Secretary said at the outset that some people feared that the Bill would undermine press freedom, but he went on to say that proposed new clause 13 would enhance press freedom. He cited the agreement of my noble Friend Lord Wakeham, the chairman of the Press Complaints Commission, as evidence of that. The noble Lord has certainly welcomed the new clause, but whether it necessarily follows that it is a good thing is another

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matter altogether. I do not have any huge or principled objections to new clause 13. I suggest, rather offensively, that it may do a little good and some harm--although I accept not very much.

My main point is that I am not sure that the new clause is altogether necessary. I shall not encourage anyone to vote against it, if that assists the Home Secretary and my right hon. Friend the Member for Sutton Coldfield, but I sometimes become wary about undue cross-party cosiness when there are questions that should be tested with rigour. In the debate on the Crime and Disorder Bill, I made that point about anti-social behaviour orders, about which there seemed to be perfectly sensible cross-party agreement. I thought it right to tease out one or two issues then, and I hope that the Committee will forgive me if I have another go on this question.

The hon. Member for Ealing, Acton and Shepherd's Bush (Mr. Soley), to give him his new title--

Mr. Straw: My hon. Friend represented Hammersmith, North when I was first elected.

Mr. Garnier: How times have changed. In those days, of course, many things were different, as the Home Secretary will no doubt remember.

The hon. Member for Ealing, Acton and Shepherd's Bush, in his own way, highlighted the point that the press often forget, find it convenient to forget, or fail to distinguish between two separate concepts: what is the public interest or in the public interest, and what is interesting to the public. From time to time, they defend stories that are of no genuine public interest but which they reckon will sell a lot of newspapers--stories that are interesting to the public. We should be aware of that point, and the hon. Member for Ealing, Acton and Shepherd's Bush put his finger on it by drawing certain cases to our attention.

We occasionally consider such cases in our pastoral role as Members of Parliament, when we assist our constituents, but when we come to Westminster and enter the Chamber, we suddenly put on a different overcoat--that of a very important person--and think that the press should pay particular attention to our rights. However, it is more important for Members of Parliament to protect the interests of their constituents--the small people who do not have access to expensive lawyers and who need us to protect their interests against the big battalions. I applaud the hon. Member for Ealing, Acton and Shepherd's Bush for making that point.

My right hon. Friend the Member for Sutton Coldfield and the Home Secretary said that this issue is to do with not only the press in the widest sense--I include within that ambit the electronic media such as television and radio--but the rights of expression of ordinary citizens, to which the hon. Member for Ealing, Acton and Shepherd's Bush referred. I hope that we can protect those rights, just as much as I hope that we can construct a suitable balance between the rights of the press, and our rights and the rights of other citizens.

I shall briefly outline what I think is the current state of the law with regard to libel and confidence. They represent the two most easily available courses of action available under the common law which the new clause attempts to bolster. In respect of libel, there are already rules of sufficient quality to protect defendants--potential

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publishers--because, first, the plaintiff must show that what the defendant intends to publish is, with reasonable certainty, capable of being defined. The plaintiff could not go to a judge and say, "I fear that someone is going to say something nasty about me." He would have to persuade the court that particular defamatory allegations were about to be published, so, much as I would sometimes like it to be the case, there would not be, for example, a blanket injunction saying, "Don't talk about Edward Garnier in tomorrow's paper--that won't do."

Secondly, the plaintiff must show that what the defendant intends to publish is plainly defamatory of him. In that respect, the Home Secretary was kind enough to recount something that I said last week. If the defendant said to the judge, "I will justify it and prove it to be true," or said that he would rely on another substantive defence such as qualified privilege or fair comment, the judge would say, "That does not permit the granting of an interim injunction." It is my understanding that the blanket rule can be overcome only if the judge is persuaded at the interlocutory hearing that those defences--justification, or qualified privilege or fair comment--are bound to fail. Indeed, it is rare for a judge to reach a conclusion of that sort on affidavit. Such matters are normally left to the constitutional tribunal of fact--the trial.

Thirdly, the plaintiff must normally notify a defendant of his application and, if the defendant does not attend the hearing, should tell the court what he genuinely believes the defendant's position to be. I have been at this game for 20 or 25 years and, in my experience, it is unheard of for a person to go to a judge's house to try a Friday night job without expecting him to say, "What will the defendant respond to your application? Will he say that it is true, or that he does not intend to publish what you think that he is going to say?" The plaintiff would be tested, and I am not entirely convinced that new clause 13 does any more than is already provided.

With all the diffidence at my command, I suggest that the new clause adds nothing in practice, except perhaps the imposition of an obligation on the court to express a view about the ultimate merits of an application before trial. Indeed, the Home Secretary was candid enough to make that clear when he went through new clause 13(3), referring to the words:

He translated that into "likely to succeed at trial". Out of the mouth of the Home Secretary came a requirement on the tribunal to reach at an early stage--when evidence is broadly unformulated and the issues not entirely defined--a pretty firm conclusion about the result of the trial.

In respect of confidentiality, the current rules provide sufficient protection to a defendant because, first, a plaintiff must satisfy the court that what is intended to be published is confidential and, secondly, an injunction would not be granted if the public interest in disclosure was significantly strong or the information was already in the public domain. If the plaintiff discharges the first of those criteria, and the defendant cannot satisfy the court about the second, the injunction serves to protect the confidence until the trial, which can, in appropriate cases, be expedited.

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When discussing the granting of an injunction in a confidence case, the former Master of the Rolls, Lord Donaldson of Lymington, deliberately used the pun, "Confidential information is rather like a block of ice: once it is exposed to the full glare of the sun, it melts." We should be careful about exposing potential plaintiffs' rights to the protection accorded to confidential information where such information would lose its value if publication were not restrained. That is the obverse of the Home Secretary's point about newsworthy stories: if such stories are restrained, they can lose their newsworthiness and the value of publishing can be lost over a few hours or a weekend. We have to do a little more than worry about the newsworthiness of newspaper stories and the concerns of editors to beat the competition to a particular exciting story. To come back to the point made by the hon. Member for Ealing, Acton and Shepherd's Bush, we are also here to protect the interests of the small man.

My third point on the question of confidentiality is that the new clause involves a full trial of the issues on the application, which in many respects can be practically impossible, and the risk is that the subject matter of the action will be destroyed before trial. It may turn out after a full investigation that the plaintiff was right all along. It will be little comfort to him in six months' time if the full trial agrees that the information was confidential and should not have been disclosed. What use is that to the plaintiff? By virtue of clauses 2 and 6, the court will, in any event, have to have regard to jurisprudence under articles 8 and 10 of the convention in dealing with such applications. Can the Home Secretary persuade me that the new clause does not conflict with article 8 by preventing the courts from protecting article 8 rights before trial? That matter concerns me a little, but I am sure that the Home Secretary can resolve my doubts in his usual way.

Mention was made of the existing law and of articles 8 and 10. I have not yet seen, as I should have, the paper that the Home Secretary has placed in the Library of the House, but if it is based on the learning in a text book written by Toulson and Phipps, I probably know what it says.

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