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Baroness Hollis of Heigham: I wish very briefly to support the amendment, so clearly explained to the Committee. The amendment would provide a permissive power to restrict reporting to ensure the confidentiality of the parties concerned.
As the noble Lord, Lord Kilmarnock, made clear, the problem could involve people with AIDS or possibly those having a history of mental illness who would be very reluctant to pursue their claims through tribunals and the courts if that resulted in widespread publicity for them. Equally, other disabled people might have a medical history of a highly intimate nature involving incontinence or concealed but substantial physical disfigurement that they would not wish publicly to be revealed.
With that proviso, none of the restrictions proposed in the amendment would prevent the appropriate reporting of the decision after the event. In child care cases involving abuse, restricted reporting would prevent the identification of the complainant and of the employer. I believe that there are similar protections whereby mental health review tribunal hearings take place in private as usually, I understand, do hearings of claims under the criminal injuries compensation scheme. I understand also that, for the most part, industrial tribunals can sit in private where national security or information of a highly commercial and sensitive nature is involved, but it is not a widespread practice.
As a former member of the Press Councilwe were often concerned about issues of identification or inappropriate identifications and sometimes there was a jigsaw effectI can assure the Minister that there need be no problem about requiring such restricted reporting, provided only, I suspect, that the press can claim a public interest defence in the very special circumstances that might be generated. I have much pleasure in supporting the amendment.
Lord Mackay of Ardbrecknish: I have some sympathy with the intention behind the amendment, but I wish to underline a point made by the noble Lord; namely, that it has always been the principle that legal proceedings should be held in open court, capable of being fully reported, as summed up in the saying "that justice is not only done but is seen to be done".
The onus has always been on those seeking an exception to the principle of an open and public hearing of a case to demonstrate that it is in the interests of justice for a case to be heard in private on the grounds, for example, of national security, public order, decency, safety or the protection of minors. It is then for the discretion of the relevant judicial authority to decide upon the facts presented to them.
The effect of the wide-ranging amendment before us is to provide for a blanket privacy provision, requiring the hearings of all cases under this legislation in courts and tribunals to take place in private; for the litigant or appellant not to be identified in associated documents; and for there to be restrictions on reporting cases. That is a very wide provision which would apply to all those people involved in actions under the Bill. The amendment would also enable any party to the proceedings to request privacy and reporting restrictions, and would thereby fetter the discretion of the courts and tribunals in these matters. I fail to see any reason why there should be a need for a provision such as this to be introduced under this legislation when it has not been necessary to introduce similar measures under other similar legislation. I fail to see why it should be necessary or even desirable to provide for a blanket privacy exemption for any disabled person involved in action under this legislation.
Perhaps I may point out that parties taking claims under the right of access to goods and services provisions will have the option of having their claims dealt with under the small claims arbitration procedure where, because of the arbitral nature of this procedure, hearings are held in private.
Lord Mackay of Ardbrecknish: I was thinking about the tribunals. I mentioned the legislation under which tribunals work and the models of procedure of tribunals which, as I indicated, adhere closely to the principles outlined in the European Convention on Human Rights.
I suspect that the motive behind the amendment was directed more towards people with AIDS or HIV who may require the protection of the amendment. If the amendment is designed entirely to protect such people, it is drawn rather too widely because it currently applies to all disabled people under the Bill. I would argue also that there is no similar blanket right of privacy under existing employment rights legislation and I am not aware that that causes any particular problems for people with AIDS or HIV. I would therefore stand firmly on the fundamental point of justice that I mentioned earlier.
The Bill attempts to deal clearly and effectively with issues of discrimination against disabled people. It would be a mistake for us to take a step such as that proposed in the amendment which, while of some benefit to a small group of people covered by the Bill, such as those with AIDS, would be of no benefit to the majority and might allow those who have discriminated to hide from exposure in the media.
One of the principles of justice in this country is that it is public. One of the reasons for that is that the public, through reporting and so forth, learn what is and what is not legal. I should have thought that Members of the Committee would be keen for the messages of tribunals and courtsthough one hopes that there will not be too many of themto be widely reported and learnt by other people who may be tempted to practise the same discrimination policies.
I believe therefore that it would not be right to make an exception in the case of this Bill and decide that cases should be heard in private. The overriding principles are too important to remove them too quickly and too readily. For that reason I hope that the noble Lord can withdraw his amendment, though I suspect he will not be entirely satisfied with my answer.
Lord Kilmarnock: The Minister is certainly correct in his last supposition. He adduced the Council on Tribunals models of procedure but did not explain why there had been extensive derogations from that in the exempted areas which already appear in the rulesthe ones we have mentioned of national security and commercial confidentiality. So there are already some quite big holes in the basic principle which presumably the Council on Tribunals approved.
The noble Lord refers to a blanket provision, but it remains ultimately in the power of the courts to decide the issue. The situation at the moment, as far as I can read it, is that the court does not have a power to decide on a private hearing in these cases. It seems to me that at least it ought to have that permissive power.
The Minister referred to AIDS and HIV, and I do not conceal that that is certainly one of the motives behind the new clause, but that is not the only group of people involved. People with disfigurements and other kinds of disabilities may well also be affected. The noble Lord's remarks rather surprised me in the context of this Bill, which is supposed to make it possible for people to come forward without fear or favour and bring cases for unfair dismissal which in certain circumstances they might find it very difficult to do.
I have to agree with the noble Lord's last remark. But I am not satisfied with what he said. I shall read it carefully tomorrow morning and together with the noble Baroness, Lady Gardner of Parkes, I shall look carefully at the text of the amendment to see whether we can modify it in a way that would meet his objections. I do not think we want to let the matter drop entirely but I shall withdraw the amendment at the present time. I beg leave to withdraw the amendment.
Page 26, line 27, at end insert:
("(6) Subsection (1) does not require an order under section (Special authorisations) which applies only to a specified vehicle, or to vehicles of a specified person, to be made by statutory instrument but such an order shall be as capable of being amended or revoked as an order which is made by statutory instrument.").
Page 26, line 28, at end insert:
(""accessibility regulations" means regulations made under section (Accessibility regulations);").
Page 26, line 40, at end insert:
(""licensing authority" means
(a) in relation to the area to which the Metropolitan Public Carriage Act 1869 applies, the Secretary of State or the holder of any office for the time being designated by the Secretary of State; or
(b) in relation to any other area in England and Wales, the authority responsible for licensing taxis in that area;").