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Lord Henley: Perhaps I may speak briefly to the amendments put down in the name of my noble friend Lord Wakeham. I start by mentioning Amendment No. 39, which stands in my name and that of my noble friend. First, I reassure the noble Lord, Lord Lester of Herne Hill, that I was not going to press it; secondly, it was therefore not necessary for him to address it at quite such length; and, thirdly, if I was going to press it, or even move it, it would be the Government's response I would be listening to and not necessarily the noble Lord's.
My noble friend Lord Wakeham explained in some detail what was behind his amendment. It was a fear that the Government were seeking to introduce a privacy law through the back door by means of the Bill. We have considerable sympathy for the approach he adopted. There might be or there might not be arguments for or against a privacy law. But if there were to be a privacy law, my noble friend was quite right to make it clear that it is something Parliament itself should hammer out and should go through in considerable detail by means of legislation rather than leaving it to the courts to develop as they wish. For that reason we share his fear that one of the effects of the clause would be to bring in a privacy law by the back door.
I do not know my noble friend's intentions about the amendment either at this stage or at a later stage of the Bill. But I have to say that, if he wanted to test the opinion of the House on this or another occasion, we would certainly be offering our support from these Benches.
Lord Campbell of Alloway: Perhaps I may deal briefly with the question of definitions. "Public authority" is not defined in the convention and there is
no definition in Article 8. It has been interpreted by the European Court of Human Rights in a series of case law decisions under a system where there is no binding precedent. There are few of those decisions--I say this subject to correction--where the public authority is not an authority set up by the parliament of one of the signatory states which renders services, or sometimes goods, to the public. I am not seeking to substitute a definition. I am only concerned with what is going to happen with this Bill, which is a domestic Bill."Public authority" is defined in Clause 6(3)(c) as,
- "any person certain of whose functions are functions of a public nature".
The noble Lord, Lord Williams, said--I usually agree with him, whether or not it is convenient to do so--that what is a public authority is a matter for the decision of the court in each particular case. I think he is right. That is not in this context a satisfactory or certain way of importing a law of privacy by the back door. For that reason alone I would be disposed to support the amendment of my noble friend Lord Wakeham, but there are other reasons too which my noble friend has put forward which I hope will attract the support of the Committee.
Baroness Williams of Crosby: Perhaps I may make a brief intervention in the debate which has been, on most parts of the Bill, obviously and quite properly dominated by voices from the legal profession. I speak as someone who in a turgid part of my youth was a tabloid journalist. I also speak as someone who has had some part in various aspects of the media. It may be helpful to have just one voice from that quarter. I do not wish in any way to detract from the tremendous contribution that the noble Lord, Lord Wakeham, has made to upgrading the standards of the media in saying that I think there is a genuine problem here. The problem is one that can only be met by a balance between Articles 8 and 10--the two sets of principles: those protecting privacy and those protecting the freedom of the media. Both sets of principles are crucial in a democratic society.
It is at least arguable that the balance may have gone a little far from Article 10 to Article 8. In other words, we are not now sufficiently recognising the real public reaction to intrusions on privacy. The noble and learned Lord the Lord Chancellor, in an article in the Daily Mail a few days ago, pointed out that in a recent poll 91 per cent. of the public indicated that they thought there should be greater protection of privacy. That is very much the public mood. It was, as my noble friend Lord Lester of Herne Hill said, affected very much by what was seen by many as something of a feeding frenzy over the whole of the news concerning the death of the Princess of Wales. One sees spreading strongly throughout decent public opinion a sense that the intrusions have gone too far.
Perhaps I may give one of a common set of examples which anyone who has been in public life knows very well. I refer to the intrusion into the lives of the children and families of people in public life. All of us who have been in public life recognise that we need thick skins
and that we ought not to whinge and complain about attacks in the press on ourselves. But it is of a very different order of both pain and unfairness when such intrusions are directed against one's spouse, one's children or one's parents. I speak as someone who, in respect of my parents and my children, has suffered from such intrusions, to the great distress of people not able to defend or protect themselves. Indeed, I speak perhaps more lightly as someone who found a press photographer sitting in a drugs cupboard of the Middlesex Hospital at seven o'clock in the morning at a time when I had broken my leg and he wished to take a photograph of me, presumably in some state of agony. We have to bear in mind that there is a tendency for the press--I refer to the press much more than to television or radio--to take to the outer limits of what is possible the endless pursuit of ratings and circulation.The noble Lord, Lord Wakeham, has made out a strong case and has made a great contribution to the Press Complaints Commission. However, as my noble friend Lord Lester pointed out, the sanctions against misbehaviour are still very slight indeed. The issue of what sanctions might be taken is very important. In my view, the single greatest danger to the freedom of the press, which I care about as much as any other Member of the House, comes from growing public repudiation of what they regard as adequate standards. It would be a protection for the press to be faced with trying to strike a balance between Articles 8 and 10--the genuine right to privacy as compared with the absolute necessity of having the freedom of expression.
One of the consequences of this matter is to drive out of public life altogether some of the best people that noble Lords and, speaking personally, I myself know. They refuse to run for Parliament, they refuse to be considered as Ministers and they refuse to enter politics because, out of their own decency, they are not prepared to put their friends and relatives at such risk. That is a consideration which anyone who cares about democracy must take into account.
5 p.m.
Lord Callaghan of Cardiff: I am encouraged by what the noble Baroness, Lady Williams of Crosby, has just said. I also wish to put in a word as a layman. I have listened carefully to the debate and tried to understand some of the legal points, but I do not understand them all. It seems to me that there is another principle here apart from the privacy of the individual on the one hand and the freedom of the press on the other. Both of them are important. As I understand it, an attempt has been made to keep a balance in the drafting of this Bill.
But there is a third principle which has not been mentioned this afternoon, as far as I can make out, and that is the principle of accountability. If there is a criticism of the press which I believe is generally held at the moment, it is that while everybody in a democratic society is accountable, it seems to laymen--I have no objection to the course that the press are pursuing in general because they have done a wonderful job--that there is no accountability except to the noble Lord, Lord Wakeham. I have every admiration for him,
but I do not believe when one matches that against the accountability that Parliament has or that which the lower courts have to the higher courts, it begins to measure in the balance.If I thought that there was a greater degree of accountability in the press, I would be more impressed with the argument. Until that accountability is held in balance--as I understand it, the impression is that the Bill has been drafted in such a way that it is held in balance and that there is a proper balance between the right to privacy and the freedom of the press--I do not feel convinced and I would not be able to support the noble Lord.
Lord Wilberforce: The noble Lord, Lord Wakeham, has rendered a very valuable service in drawing attention to the difficulties which exist in the convention at the present time. He speaks with his great expertise and experience as regards the press. So far the debate has tended to concentrate on that aspect of the matter. I do not believe that we ought to allow the debate and discussion on the Bill to be completely hijacked by questions which are no doubt of great interest, but which relate to the press, the newspapers and the media. There are other aspects in the convention of great importance to which we have to have regard. I am personally more concerned with them and I propose to address my remarks to them.
My concern relates to the relation and difference between public authorities on the one hand and private persons on the other. There is nothing between the Government and myself, or between them and the noble Lord, Lord Wakeham, on that matter. It has been made perfectly clear by the noble and learned Lord in his speech at Second Reading and also by the noble Lord, Lord Williams of Mostyn, in his winding up speech on that occasion, that the Bill is aimed entirely at public authorities and not at private individuals. It is not meant to introduce a tort of privacy. As regards matters relating to the press, they are to be left to self-regulation and others to the common law.
There are certain difficulties in that regard which exist in the Bill. As the noble Lord has said, his amendment covers the same ground as that which I have attempted to cover in Amendment No. 60. Indeed, if I had come earlier this morning I would have agreed to my amendment being grouped with Amendment No. 32. They cover the same ground and deal with the same problem, but in a slightly different technical way.
The problem is simply this. It is perfectly true that Clauses 6, 7 and 8 of the Bill deal only with public authorities and not with private persons: indeed, nothing in the Bill deals with private persons. The problem arises when one turns to the courts. It is said in Clause 6 that a court is to be treated as a public authority. The noble Lord deals with the problem I am now discussing by taking courts out of that definition in cases where only private litigants are involved.
There is a problem. A case is brought in court between an aggrieved person and a person who is not a public authority. At the moment I am not discussing whether any particular person is or is not a public
authority. That is a problem to one side which we shall come to later. We assume that he or she is not a public authority. A remedy is asked for or an injunction of some kind against the private person. It may be a journalist or a paparazzo (if that is the right singular) or against any other wrongdoer. If the claim is based on the convention the court ought to say that there is nothing wrong under it because the convention only makes it unlawful to act in that particular way if one is a public authority. The case should be thrown out.But there may be cases where an attempt is made to carry the dispute further and to say, "You, the court, have acted incompatibly with the convention"--those are the vague words that are used--if one either has or has not granted a particular remedy. I am very anxious to ensure that there is such a case that courts are not exposed to further proceedings against them for acting unlawfully and incompatibly with the convention.
Of course, we know that damages cannot be given against the court. Clause 9 states that one has to go by way of appeal or judicial review. The wording of the noble Lord's Amendment No. 32 does nothing more than to say that in such a case the court is not to be treated as a public authority and that remedies are not to be granted against it as if it were a public authority. There is nothing in that which is contrary to the spirit of the Bill or which prevents the common law and the courts from developing a law of privacy. I am not afraid of that at all and in that I differ rather from the noble Lord, Lord Wakeham. There is nothing to prevent the issue of privacy being developed at common law or the courts acting in a perfectly normal way, with appeals and so forth, so long as they are justified.
In so far as proceedings are based on this Bill, I am only concerned that, under the convention, in cases where private persons are concerned, there should not be a whole chain of judicial reviews, appeals and so forth on the ground that the court has acted incompatibly with the convention. I am perfectly happy to support the noble Lord's amendment. I repeat that it does not deal specifically with the press, but with a general problem of public versus private. My amendment comes to the same thing. I take no position whatsoever on the enlarged or more specialised dispute so far as it relates to the press.
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