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Mr. Garnier: I am not entirely sure that the Minister addressed my point. If the judge--it is a Queen's Bench judge in chambers, as often as not, rather than a divisional court--is not minded to grant an injunction on the application of a plaintiff who is seeking to protect confidential information, that more or less becomes the main question, because once the information is in the public domain, there is nothing to be done other than the award of damages--and we are talking about non-pecuniary loss, not about anything of great financial value.
Mr. James Clappison (Hertsmere): The damage is done and the cat is out of the bag.
Mr. Garnier: Indeed, or as I said in Lord Donaldson's language, the ice, once in the full glare of the sun, has melted.
We need to think more carefully about requiring a judge considering an application for an injunction to reach a judgment on the merits of a trial that could have long-term implications, when we all know that a trial involves the consideration of far more detailed evidence than is available to a judge at that stage.
Mr. O'Brien:
That is right, but judges have to make such decisions, and will have to bear in mind the consequences and consider whether it is right to grant the injunction. They may decide that it is not, but feel subsequently that damages are a better way in which to deal with the case. The judge must consider all the circumstances and find the right balance between articles 8 and 10, taking into account the factors that we have suggested in the new clause and considering the hon. and learned Gentleman's valid point that information that has a value because of its confidentiality cannot regain that value once the confidentiality is lost. The judge will have to bear in mind both that point and the consequences that it might have for what the hon. and learned Member for Harborough called the small man. Those are issues for the judges to wrestle with. I am not sure that we can go much further than providing the judges with the clarity and guidance that we are giving. There will perhaps be more clarity and guidance for the judges when the convention is in place.
The hon. and learned Gentleman said that subsection (3) made no difference. We suggest, however, that the law on granting injunctions is flexible in privacy cases, and we are tightening it to ensure that the applicant will in all cases need to establish a stronger case.
My hon. Friend the Member for Battersea (Mr. Linton) made several points about defects in self-regulation. The Government have no plans to end self-regulation. My hon. Friend rightly drew attention to the Calcutt report and the comments of the former Member of Parliament for Putney, David Mellor, who warned the press that time was running out at the last chance saloon. In many ways, Mr. Mellor's comment had an effect, and the Press Complaints Commission is trying robustly to ensure freedom of the press while trying to ensure that privacy is respected. The Bill helps the PCC to balance article 10 and article 8. Our new clause will add to press safeguards, giving the PCC better guidance on how to achieve that balance.
The hon. Member for Beaconsfield (Mr. Grieve) raised several important points. Unfortunately, his most important point came during his intervention on the Home Secretary about the public interest. My hon. Friend the Member for Dudley, North (Mr. Cranston) also raised that point in his helpful speech. I am perhaps tempting further interventions by going into the issue of what the public interest is, but the basic question is whether the public should have particular information. For example, information might have an effect on proper political discourse, or a matter of public policy. It might also affect individual behaviour. For example, information about BSE might have affected decisions on whether to eat beef. Those are areas in which there is a proper public interest in the press revealing information. The judge would have to ask the same question put by the hon. and learned Member for Harborough: is a matter only of interest to the public, or is it a matter of public interest? There should be some good reason why the public should know.
It is arguable whether there should be a good reason for the public not to know something. That takes us into realms of philosophy and jurisprudence, and I do not want to go too far into them. However, judges will debate that matter among themselves as they reach their decisions.
My hon. Friend the Member for Dudley, North said that we were at the beginning of a journey. We have tried to safeguard the interests of the individual and the interests of press freedom and strong democracy. Much work and thought has gone into that, and I thank the right hon. Member for Sutton Coldfield and others who have praised my right hon. Friend the Home Secretary and Lord Williams of Mostyn for their hard work on getting the Bill right. We worked closely with the PCC, which has been enormously helpful. Getting the Bill right was important to our democracy, and I am delighted that our debates have indicated that we have done so.
Question put and agreed to.
Clause read a Second time, and added to the Bill.
Mr. Robert Maclennan (Caithness, Sutherland and Easter Ross):
I beg to move, That the clause be read a Second time.
The Bill does not seek to introduce new human rights into our domestic law. It seeks merely to bring home the rights guaranteed by the European convention. New clause 10 is closely modelled on new clause 13, and on the earlier new clause tabled by the Government at the behest of the Churches, which were concerned about possible interpretations of convention rights. It is intended to help to guide our courts in their interpretation of article 14. It may be asked whether that is necessary, given considerable jurisprudence over the years on article 14, but it has not been conclusively determined whether that article should be interpreted as setting out rights that are exhaustively covered by the phrase "such as", or whether that phrase is merely a preliminary--I submit that that was what was intended--to an illustration of the rights protected by the convention.
The point is limited in some respects. By passing my new clause, the Committee would not widen the ambit of protection to categories of people who are not specifically mentioned in article 14 of the convention for such matters as, for example, employment, which is not covered. Article 14 is, in a sense, a parasitic prohibition against discrimination, in that it derives from other protected fundamental rights and freedoms. A number of people are concerned that it would be possible to interpret the article restrictively and to treat categories of persons as exhaustive.
That would be undesirable, and it would be out of line with much jurisprudence. It would also be out of line with how courts in Ireland have interpreted comparable
provisions in the Irish constitution, in which grounds of discrimination are enumerated. It would be out of line with the Canadian charter of rights and freedoms. In the Egan case in 1992, Canada's superior courts decided that such rights should be interpreted as not exclusively determined by lists of rights.
The matter has come before the European Court of Human Rights, but not conclusively. For example, the Dudgeon case dealt with sexual orientation and the law in Northern Ireland. The matter was resolved by reference not to the status of the individual, but to the article 8 rights on respect for private and family life. Perhaps the matter has been taken rather further in the Sutherland case more recently, in which it could be argued that the court leant more clearly towards regarding homosexuality as another status protected against discrimination.
The new clause is entirely in line with the policy of our Government and our international treaty obligations. Its purpose is to spell out the matter beyond doubt.
Mr. Clappison:
I listened carefully to the right hon. Member for Caithness, Sutherland and Easter Ross (Mr. Maclennan) putting forward his arguments for the new clause. I pay tribute to him for his characteristic care and courtesy in advancing his arguments.
I am somewhat enlightened now about the new clause, but, when I first considered it, it sprang to mind that it expressed a perfectly worthy sentiment, which might have unintended consequences in practice. I agree with the right hon. Gentleman, as I am sure many others, if not all hon. Members, would do, that individuals have access to rights free from discrimination. I know that the right hon. Gentleman did not serve on the Committee on the Crime and Disorder Bill, where we moved similar amendments to protect individuals from discrimination under some of its new provisions. I am sure that the Under-Secretary will remember that. I cannot remember whether he responded at the time, but there was common ground in the Committee on that issue, and the Government were keen to reassure us.
I have some doubts about how the new clause would work in practice. I suspect that the right hon. Gentleman is trying to deal with the problem of interpretation. When I read article 14 in conjunction with the right
hon. Gentleman's arguments, I thought that the wording of the article was clear and did not need further elaboration. It is clearly set out that
'--(1) If a court's determination of any question arising under this Act concerns an issue of discrimination, it must have particular regard to the guarantee in Article 14 of the Convention that the rights and freedoms set forth in the Convention shall be secured without discrimination on any ground.
(2) In this section, "court" includes a tribunal.'.--[Mr. Maclennan.]
Brought up, and read the First time.
"the rights and freedoms set forth in this Convention shall be secured without discrimination".
The right hon. Gentleman gave examples of people who might be discriminated against and, clearly, he has gone into far more detailed legal research than I have had the opportunity to do. The wording of the article at face value and first glance suggests that it is not intended to be an exhaustive list. The characteristics that might give rise to discrimination, such as sex, race, colour, language, religion, political or other opinion, and national or social origin, are set out in the article as examples of the sort of characteristics that should not be discriminated against or lead to a loss of enjoyment of rights under the convention. If I may have my penn'orth on the interpretation of the article, I would think that disability, age and sexual orientation should not give rise to discrimination, but sit alongside the other matters spelt out in the article. They fall broadly into the same category and certainly should not give rise to somebody losing any enjoyment of their rights.
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