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Mr. Straw: It is Deposit 6042, which I placed in the Library of the House on Second Reading. I have a copy before me and further copies are available in the Library.
5.30 pm
Mr. Garnier: I am amazed at the Home Secretary's command of command numbers--
Mr. Garnier: I shall not worry about the Home Secretary's deposits. I simply repeat my confession that I have not read it. However, if it says what I suspect that it says, it contains a lot of wise words.
Although the convention has not yet been domesticated--or, to use the Home Secretary's words, deposited--within British statute law, the courts are increasingly taking into account the jurisprudence of the European Court in so far as it deals with articles 8 and 10. The Home Secretary will know of the case of the Crown
v. Khan and the wise words of the, sadly, late Chief Justice Lord Taylor. He said that from the authorities that he cited,
In article 10 cases, the Court of Appeal in the House of Lords has again taken a sensible approach to making use of European Court jurisprudence. In the case of Rantzen v. Mirror Group Newspapers in 1986, Lord Justice Neill noted that the courts had no power to enforce convention rights directly, but might refer to the convention for assistance to resolve an ambiguity in English legislation or when considering the exercise of a discretion. He went on to say:
Mr. Straw:
The Under-Secretary of State for the Home Department, my hon. Friend the Member for North Warwickshire (Mr. O'Brien), will wind up the debate. The new clause is no sense a gesture. Anyone who reads it can see that it provides important substantive and procedural safeguards for those seeking to rely on article 10 rights.
Mr. Garnier:
I am always happy to take the Home Secretary at his word and, during the Bill's proceedings, my happiness to do so has increased. I accept his assurance that the new clause is not simply a gesture, although I am still not entirely sure that it is strictly necessary. I have no quarrel with the message underlying the new clause, even if it is not a gesture. If it is of any comfort to anybody, I shall not invite the Committee to divide on it.
I wish to anticipate some remarks that may be made by the hon. Member for Battersea (Mr. Linton). He was concerned about the use of the word "public" in subsection (4)(a)(i), which says:
That is quite enough from me. The Home Secretary is getting fidgety and obviously wishes to leave. It was polite of him to remain in the Chamber to listen to my warblings. I hope that the Under-Secretary can allay some of my gentle fears that the new clause is unnecessary, albeit well intended.
Mr. Linton:
I rise to support new clause 13 as someone who has never seen what is wrong with a law on privacy. The Home Secretary says that he is not in favour of a general law on privacy--and I accept that--but this proposal is a law about privacy, because it incorporates in our law the words of article 8 of the European convention, which guarantees privacy in people's private and family life and in their correspondence.
The Bill may not be solely about privacy, but it deals with the subject as I imagined a privacy Bill would do. Crucially, it determines where the principle of privacy ends and freedom of the press begins. By saying that the court must "have particular regard" to article 10, the new clause establishes, in the fairest possible way, a balance between article 8 on privacy and article 10 on freedom of the press. New clause 7 would put undue weight on one rather than on the other. Subsection (2)(a) and (b) of new clause 13 solve the problem of Maxwell-type ex parte injunctions, and subsection (4)(a) deals with the "Spycatcher" issue to which the hon. and learned Member for Harborough (Mr. Garnier) referred. Subsection (4) brings the Press Complaints Commission within its ambit.
It has always surprised me that Lord Wakeham has been opposed to this measure. He has argued that self-regulation has been an unsung success story. Self-regulation of the press has been a success in the sense that it has defended the press against regulation for many years, but it has not been a success in protecting the public from the press.
I have never believed overly in self-regulation. Life is a jungle. I can conjure up a picture of the jungle in which it is decided that too many children from the neighbouring villages have been eaten by tigers and in which self-regulation is introduced. The high council of the jungle discusses how the restraint can be exercised. Baloo the bear says to Shere Khan, "Could you kindly eat a quota of babies next week? Do not eat too many. Restrain yourself a little."
The Press Complaints Commission is based on a similar principle, because it comprises the editors of several national newspapers, including the editors of the Daily Mail, until the recent death of Sir David English; The Sunday Times; The Sporting Life; and the Sunday Mail. In the recent past, it has included the editors of the Sunday People and the News of the World. I am not suggesting that any of those individuals are incapable of self-restraint, but the principle involved in self-regulation is strange, because it assumes that newspaper editors are the best people to protect the public against the press.
It also surprised me that Calcutt, at the end of his long inquiry, recommended against a privacy law, although he was in favour of a law against bugging, burgling and telephoto pictures. Eighteen months later, in the light of experience, when he reviewed his own report, he recognised that the Press Complaints Commission was not an effective regulator of the press and he recommended a statutory press complaints tribunal.
It is strange that many years after Calcutt came to that fair conclusion, so many people resisted that recommendation. Only 27 out of 3,023 cases before the PCC in 1996--the last year for which figures are available--were upheld. It cannot be maintained that such regulation is a success. I have been alarmed at the reluctance with which the press, and Lord Wakeham in particular, have conceded inch by inch that press regulation is inadequate. That has became more and more obvious, particularly in relation to events involving the royal family. A few days after the death of the Princess of Wales, Lord Wakeham said:
"it is clear that it is permissible to have regard to the Convention, which is of persuasive assistance, in cases of ambiguity or doubt. In the circumstances of the present case the position is neither ambiguous or doubtful; nor is it incumbent on us to consider whether there was a breach of article 8, and we do not propose to do so."
Thus, the Court of Criminal Appeal took a flexible and sensible approach to the jurisprudence of the European Court, despite the fact that it was not part of English domestic law.
"Where freedom of expression is at stake, however, recent authorities lent support for the proposition that article 10 has a wider role and can be properly be regarded as an articulation of some of the principles underlying the common law."
As my hon. Friend the Member for Beaconsfield (Mr. Grieve) would be the first to admit, there is an awful lot of good in the convention, of which we need not be frightened, and I am not. All I am saying is that, by virtue of the sensible way in which our common law has developed with the assistance of the convention, we may not need new clause 13 because it does no more than what we are already doing. If the Home Secretary can persuade me that it is not simply a gesture--I see the Home Secretary shake his head disapprovingly. If he can persuade me that the new clause is not being inserted in the Bill simply to placate my noble Friend Lord Wakeham and the barons, big and small, of the press, I shall be grateful to him.
"the extent to which . . . the material has, or is about to, become available to the public".
He may find help from the wise words of the noble and learned Lord Bridge in a case that involves his former employer, the publishers of The Guardian, in the
"Spycatcher" case. Those Committee members who took an interest in that aspect of press freedom will remember that the House of Lords upheld the then Attorney- General's application for an injunction to restrain the publication of information that was confidential to the Government. However, Lord Bridge gave a powerful dissenting judgment. He was dealing with information that was made available to the public outside the jurisdiction of the court, and he said:
"I can see nothing whatever, either in law or on the merits, to be said for the maintenance of a total ban on discussion in the press of this country of matters of undoubted public interest and concern which the rest of the world now knows all about and can discuss freely . . . The maintenance of a ban, as more and more copies of the book Spycatcher enter this country and circulate here, will seem more and more ridiculous. If the Government are determined to fight to maintain the ban to the end, they will face inevitable condemnation and humiliation by the European Court of Human Rights in Strasbourg. Long before that they will have been condemned at the bar of public opinion in the free world."
Lord Bridge, although in the minority in the Judicial Committee in the House of Lords, was proved rights because the European Court disapproved of the injunction and awarded The Guardian and its sister newspaper, The Observer, £100,000, and The Sunday Times £100,000. That underlines the humiliation point and goes some way towards answering the concerns of the hon. Member for Battersea about information that is in the public domain but not necessarily confined to the jurisdiction of our courts.
"Motorbike chases, stalking and hounding are unacceptable",
as though he had just been driven to that conclusion. The PCC amended the privacy code to make it clearer that it was over-zealous to hound someone on a motorbike.
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