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The German courts also distinguish between speech motivated by greed, and speech that is in the public interest. I see that the right hon. Member for Sutton Coldfield (Sir N. Fowler) has returned to the Chamber. I am not sure that the story he told does him any discredit; I think that all professionals should act with some concept of the public interest in mind, and I consider that the right hon. Gentleman acted in the right way all those years ago. We must balance those rights, and new clause 13 sets out a number of criteria.

I accept what the hon. and learned Member for Harborough (Mr. Garnier) said about ex parte and interim relief. I am not sure that new clause 13 adds a great deal to the existing law in that respect, but I think that it is valuable in that it refers to the public interest and to privacy codes. It is possible that the courts would have developed a deferential attitude to the privacy codes that exist. In judicial review, for example, the Datafin case

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showed that our courts will defer to self-regulatory codes. In that instance, the takeover code was involved. The court said that the City operated the takeover code in a reasonably satisfactory way, that the panel was closer to the market than the court was and that it should, therefore, defer to its operation. In time, our courts may develop a case law that respects the decisions of self-regulatory bodies such as the Press Complaints Commission, but I am not certain that we can say at this point that they will automatically adopt such an approach.

It is also helpful that new clause 13 invokes the concept of the public interest. The hon. Member for Beaconsfield (Mr. Grieve) asked what the term actually meant, and he was right to do so, because it is a difficult concept--the concept of the unruly horse to which Lord Diplock referred all those years ago. Again, German case law is useful. In one of his papers, Professor Markesinis sets out a range of considerations taken into account by the German courts--in particular, the German constitutional court--in the definition of the public interest.

The German courts have considered, for instance, the motives of the publisher, whether the speaker will benefit financially, the extent to which the information has been disseminated, the breadth of the restriction that the plaintiff wishes to impose on the defendant's speech rights and the methods used. My hon. Friend the Member for Battersea referred to the legality of such methods as telephoto lenses.

Although I consider new clause 13 valuable in that respect, I must add that we are only at the beginning of our journey. Over the years, in a range of decisions, the courts will have to reconcile those two rights. Nevertheless, the new clause constitutes a valuable contribution to the start of the journey.

The Parliamentary Under-Secretary of State for the Home Department (Mr. Mike O'Brien): We have had a good debate, in which all hon. Members have welcomed new clause 13.

The new clause seeks to do what--as I think is generally recognised--could have been a difficult, even precarious job: the job of ensuring that the balance between articles 8 and 10 is right. I am pleased that Lord Wakeham, on behalf of the Press Complaints Commission, said today:


I am also delighted by the welcome given to the new clause by the right hon. Member for Sutton Coldfield (Sir N. Fowler), in a very good speech. I particularly enjoyed his account of his failure to write a story which he thought that he should not write, for good reasons, finding later that there might be good reasons for him to have done so. That is a lesson for all journalists who must make such judgments.

The right hon. Gentleman asked a number of questions. He pointed out that the press and broadcasting agencies are all involved in the way in which the convention will operate, and that, in the operation of the new clause, separate codes may be taken into consideration. I confirm that separate codes will operate. As the right hon. Gentleman suggested, there are minor--even marginal--

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differences between them. I suspect that those differences will not make much odds in terms of court judgments, but the right hon. Gentleman was right to point them out.

The right hon. Gentleman welcomed the tightening of the law on interim judgments, which we consider an important safeguard for the press. He asked whether the Press Complaints Commission should develop prior restraint powers. That is not part of our plans, which I hope reassures him. He said that the task of newspapers was to reveal and to expose. We agree that it is a basic safeguard of an active and vital democracy to reveal and expose when at least some public interest is involved. I am sure that that is the right hon. Gentleman's view.

My hon. Friend the Member for Ealing, Acton and Shepherd's Bush (Mr. Soley) and the hon. and learned Member for Harborough (Mr. Garnier) rightly said that we should consider not so much whether the rich, famous and powerful would benefit from the new clause, but whether there would be some protection for the ordinary individual who might feel that his private life was being infringed. I think that all hon. Members want to get the balance right between the freedom of the press--the importance of which was mentioned by the right hon. Member for Sutton Coldfield--and the rights of the "small man", as he was described by the hon. and learned Member for Harborough. We must get the balance right between articles 8 and 10. The courts will no doubt weigh the vulnerability of ordinary citizens and of the rich and famous in the appropriate way. Article 8 is available to everyone, including the small man.

My hon. Friend the Member for Ealing, Acton and Shepherd's Bush asked about various cases. He asked whether the helicopter winchman would be able to claim under the convention and, if so, in which court. The venue depends on the nature of the case and of the claim, so I cannot give him guidance on that, but there would be various ways of proceeding.

Mr. Soley: This is a key question of access to the law. Given that the man was grieving at the time and trying to prevent the intrusion that was taking place, it seems to me that there should be an ability to go to the local court--perhaps the magistrates court--to seek protection. If the human rights convention is now part of our domestic law, is an appeal available on that basis?

Mr. O'Brien: When there is a case that can be brought before a court, the convention can be brought in. Which court that will be will depend on the nature of the case. I cannot give an absolute assurance that the man to whom my hon. Friend referred will be able to pursue the matter in a county court. It would be wrong to give individual advice from the Dispatch Box, and the man will have to rely on his own lawyer. When they become a matter of dispute and concern, issues relating to the convention can be raised in ordinary cases. People have access to rights that previously had to be enforced in Strasbourg. I hope that my remarks have afforded at least some reassurance.

My hon. Friend the Member for Ealing, Acton and Shepherd's Bush also asked about a child. There are various options: the child could be made a ward of court, a guardian ad litem could bring a case, or the official solicitor could look after the child's interests. In some cases, the courts decide that the invasion of privacy outweighs the right to freedom of expression. The new clause does not prevent that.

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An important point that has, to some extent, been overlooked is that newspapers will not be public authorities and could not be proceeded against directly under the Bill, but an article 8 point could be raised in proceedings for harassment or a libel action, for example.

Concerning the example of the expenditure at the tuck shop of an inmate of a special hospital, there are arguments either way about whether publication should be considered to be in the public interest, and the courts would have to decide the case on its merits. The new clause simply requires them to have regard to whether publication would be in the public interest.

The hon. and learned Member for Harborough made the important point that, when Front Benchers agree, it is the responsibility of Back Benchers to put the testing arguments to the Government. He asked us to remember the distinction between the public interest and what is interesting to the public. I hope that, to some extent, we have caught that important distinction in subsection (4)(a)(ii) of the new clause.

The hon. and learned Gentleman asked whether the new clause went further than the current law. I hope that my right hon. Friend the Home Secretary was able to reassure him to some extent. We are seeking to put in place some new safeguards to provide help and clarity in the law. When we introduce something as important as the convention, it is important to ensure that the courts understand how we intend it to be interpreted. The provisions in subsections (4) and, especially, (2) offer safeguards. The hon. and learned Gentleman says that those safeguards are acknowledged to some extent in the practice of the courts, but now they will be acknowledged in statute, and the added clarity in the law will give them substance.

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The hon. and learned Gentleman asked whether the tribunal--by which, I presume, he means the divisional court judge or whoever is considering the application--would have to reach a conclusion at an early stage about whether the case was likely to succeed. That would be the case, but only to the extent that the judge would be considering issuing an injunction. If he decided, for whatever reason, that an injunction was inappropriate, he would not have to consider the substance of the case and its chances of success at that stage.


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