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Lord Peston: My Lords, if we are wandering down memory lane, perhaps I may say, first, how right the Government are in emphasising the importance of investment in human capital: in educating and improving the training of the labour force. Some of us have been saying that for 30 years or more. There is nothing new about it. Is my noble friend aware that that makes the labour force more employable; it does not make the labour force more employed? Unless I misheard the Statement, it seemed to say that these days no one believes in demand management. I ask my noble friend to bear in mind that if, next year, we follow the lead of the Bank of England, which has already decided that demand is rising too rapidly--and it appears as if the Treasury believes that as well--most of us believe that, if we were then to cut back on demand for other reasons, unemployment would rise, despite everybody's good intentions with respect to the labour force. When my noble friend next meets his right honourable friend the Chancellor of the

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Exchequer, I hope that he will point out that demand still has a central role to play in determining how many people are employed.

Lord Richard: My Lords, I cannot imagine that my right honourable friend the Chancellor of the Exchequer would disagree with somebody so economically literate as my noble friend.

Human Rights Bill [H.L.]

4.25 p.m.

House again in Committee on Clause 6.

Lord Wakeham moved Amendment No. 32:

Page 4, line 4, at end insert ("or
(c) where the public authority is a court or tribunal and the parties to the proceedings before it do not include any public authority.").

The noble Lord said: In moving this amendment, I shall also speak to Amendments Nos. 33, 35 and 42.

As the Committee will know, it is right for me to declare an interest as chairman of the Press Complaints Commission. The commission's job is to protect the legitimate expectation of privacy on the part of individuals--but to do so through self-regulation rather than statutory control.

Let me begin by saying that I have no great problem with the principles of the convention. My problem is not with the principle, but with the method. In short, the detail of the Bill and the consequences of that detail seem to do something which I profoundly do not want to happen; nor I believe do the Government. The Bill as drafted would damage the freedom of the press and badly wound the system of tough and effective self-regulation that we have built up to provide quick remedies without cost for ordinary citizens. It would inevitably introduce a privacy law, despite the Government's stated opposition to one.

As will be clear, I speak not as a lawyer but as a layman. From that standpoint, it seems to me that the first problem arises because of the role of the courts as public authorities enforcing the convention and developing the common law. As I understand it, it will therefore be possible for the courts to use the convention not just in respect of disputes between individuals and public authorities but in disputes between private individuals.

Again, that is contrary, as I understand it, to the Government's previously and clearly stated intentions. Indeed, the White Paper accompanying the publication of the Bill stated that,

    "the time has come to enable people to enforce their Convention rights against the State in the British courts".

No mention was made of private individuals or organisations.

In my view the Government were right first time. Incorporation of the convention should not be used to enlarge the remedies available in private disputes. It

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must be made clear, as the Government have maintained before and since the election, that it is to be used to curb the power of the state.

I have tabled two sets of amendments to clarify that point and to prevent the courts being dragged into disputes which are nothing to do with public authorities. The first set seeks to prevent the courts using the convention to interfere in issues relating to privacy where those are matters between private parties and do not involve the state. I might add that I think the amendment tabled to Clause 9 by the noble and learned Lord, Lord Wilberforce--Amendment No. 60--relates to the same point.

My amendment aims to stop the development of a common law of privacy. Such a law could never be as effective as self-regulation in safeguarding the rights of individuals. And such a law would seriously erode the freedom of the press, which has been a pillar of our democracy since the first Bill of Rights in 1689.

It would also be highly damaging to ordinary people--in other words, the great majority of those who from time to time are affected by media intrusion--leaving them without the protection of self-regulation. For most people, going to law to protect their privacy would be a ruinously expensive business which few could afford. They simply would not do it. Given that, as I know from experience of the Press Complaints Commission, very few cases of invasion of privacy are clear-cut, I do not believe that the plan of the noble and learned Lord the Lord Chancellor for a "no-win, no-fee" system of costs will work in these kinds of cases.

If there is a law of privacy, fashioned by the courts, I fear that the newspapers will simply say to complainants, "Use it". That will be fine for the rich and the powerful, but it will be a remedy out of the reach of ordinary people. Indeed, where there is a problem with intrusion into the privacy of ordinary citizens, a law will simply make it worse than under tough self-regulation, not better.

I fully expect that the noble and learned Lord the Lord Chancellor will tell me--indeed, he has never sought to make any bones about it--that a judge-made law of privacy is on its way and that it may happen in a year or two anyway as the courts seek to advance, without Parliament's express approval or scrutiny, the law of confidence. With great respect, if I may say so as one who believes in the sovereignty of Parliament and has been Leader of both its Houses, that is no justification. If Parliament wants a law of privacy--which would be a fundamental change in our constitutional balance, to which I am, of course, opposed--it should pass one, not just acquiesce in the courts' creating one without its approval or scrutiny.

My second set of amendments seek to protect the work of the Press Complaints Commission and the system of self-regulation, which could be fatally undermined by this legislation if the PCC were held to be a "public authority" under the terms of the Bill. We need to ensure that the PCC is held not to be a public authority, not just for abstruse points of legal nicety, but because the future of self-regulation depends upon it.

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If the PCC's adjudications on matters of privacy could be subject to subsequent action by the courts, my task of seeking to resolve differences, to obtain a public apology where appropriate or, if necessary, to deliver a reprimand to an erring editor would no longer be a practical proposition because the courts would be able to intervene after our work had finished. That would ensure that from day one the newspapers' approach to a complaint of invasion of privacy would be highly cautious and legalistic. The courts may also be able to award monetary compensation. My chances of making self-regulation work for the benefit of ordinary people, and without cost to them, would be minimal.

I had intended to pose a rhetorical question about whether the PCC was a public authority in terms of the Bill in order to demonstrate that uncertainty existed on this point. As the noble and learned Lord the Lord Chancellor knows, there was until recently legal opinion from a most distinguished quarter that the PCC was not within the terms of the Bill. However, an article in The Times last week by David Pannick QC asserted, in stark contrast, that the PCC is caught by the definition. In addition, during the Second Reading debate the noble Lord, Lord Williams of Mostyn, suggested that this was a matter for the courts to determine.

It would have been unusual to proceed with such uncertainty because it left open an ambiguity which might have the effect of bringing disputes between newspapers and individuals within the scope of the Bill only by virtue of the fact that the PCC was declared a public authority. However, I can now answer my own question--and I am most grateful to the noble and learned Lord the Lord Chancellor for assisting me in this. He wrote to me this morning to confirm that, in his view, the PCC is a public authority within the terms of the Bill. He also confirmed the point that in privacy matters newspapers would be subject to interim as well as final injunctions under its terms. His letter confirms that, despite what had been said to the contrary, newspapers and magazines are within the terms of the legislation. In other words, we have a de facto privacy law on our hands.

In the courteous way that I would expect of him, the noble and learned Lord the Lord Chancellor seeks to reassure me that a newspaper will not go down to an injunction where there are "solid" public interest grounds, just as when in libel cases a newspaper says it will justify a story. However, the point is that in privacy cases the courts would inevitably err on the side of caution and would not refuse an injunction, despite the fact that a newspaper said that there was a public interest defence. The result would be that all newspapers would be bound by that injunction and it could be years before a full hearing took place. That, in my view, would be an end to investigative journalism.

It may be that these are merely unintended consequences and the Government have not yet had a chance to think through all the implications of what the noble and learned Lord the Lord Chancellor said in his letter to me. It may be that they should look very carefully at my amendments, which would have the effect of taking the PCC out of the terms of the

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legislation and of preventing direct action against newspapers. These amendments, after all, simply help the Government to do what they always said they wanted to do: introduce legislation that applies only to public authorities and not to newspapers.

The noble and learned Lord the Lord Chancellor is an old friend for whom I have the highest regard and who, as he said at Second Reading, until May played an important role in establishing and nurturing the work of the Press Complaints Commission as a member of its Appointments Commission. I know that he feels neither that my fears are justified nor that there will be established a convenient law for the rich to avoid publicity or the corrupt to escape the spotlight of investigation. I know he thinks that a free press will be safe in the hands of the judiciary.

I am sure that he will tell us that the courts will interpret these matters in a sensible and reasonable way by giving due weight to Article 10 of the convention on freedom of expression. We may be told--as David Pannick set out in the article I mentioned earlier--that the courts may seek to leave delicate judgments on privacy matters to specialist bodies such as the PCC. All so well and good. But, if the Government agree with those points, they ought not to leave them to the discretion of the courts; and they should not leave the Bill unamended. These are matters too important to be left to chance. After all, we are tampering with the freedom of the press and with self-regulation not just for this moment but for all time to come.

I am grateful, as I said earlier, to the noble and learned Lord the Lord Chancellor for writing to me to clarify these matters and for doing so in a way that convinces me that there is a very serious problem with the Bill. Self-regulation has come on in leaps and bounds in recent years but, as I have often said, it is not perfect. I do not rule out further improvements over time, but that will be much more difficult to negotiate with a press subject for the first time ever to statutory controls and a privacy law.

In my view, judicial interference in matters such as this and the freedom of the press do not mix. I believe that the freedom of a responsible press can only really be safe in the hands of Parliament. The Bill, as the noble and learned Lord's letter to me confirms, takes the matter out of the hands of Parliament and in doing so introduces a back-door privacy law. I do not want that to happen because I believe that the practical effect for the ordinary people of this country who cannot afford the expense of going to law will be less protection, not more. I therefore strongly urge the noble and learned Lord the Lord Chancellor to look at these matters again before it is too late.

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