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Lord Lester of Herne Hill: Before the noble and learned Lord sits down, I shall be very grateful if he can answer one question arising from his very important speech. Clause 13(2) specifically reserves the right to rely on the convention in cases where a person is not seeking a right against a public authority. The noble and learned Lord, Lord Wilberforce, will remember a case in which he gave the leading speech. I believe it was called Baron Cawley's case and it was some years ago. He referred to the convention as a source of public policy in deciding whether a restrictive covenant based on religious exclusion in a will between private persons was or was not against public policy.
From what the noble and learned Lord, Lord Wilberforce, said, I am not clear whether he is seeking to prevent the convention from being relied on in ordinary private law proceedings, say, involving the
contours of the law of libel or whether a restrictive covenant in a will is against public policy. I am therefore quarrelling with Clause 13(2).
Lord Wilberforce: I am much obliged to the noble Lord, Lord Lester, who as usual has raised a very relevant point. Clause 13 has already been discussed and does nothing more than say that you may rely on a convention right without prejudice to any other right. I am perfectly happy to leave intact--I thought that I had made it clear that I wished to leave intact--any right of anybody to go under the common law. If they are going under the common law, they are faced with the perfectly normal position that there is in existence an international convention to which one must have regard and if any statute is involved, it has to be interpreted. I would certainly not wish to exclude the courts from relying on interpreting any law which exists consistent with the convention, as is stated in Clause 2. I do not see any difficulty relating between actions under the convention and actions not under the convention. I want only to ensure, in so far as an action is brought under the convention relying on Clauses 6, 7 and 8, that a court is not to be treated as liable to proceedings under the convention by a private individual.
5.15 p.m.
The Lord Chancellor: I hope that I can persuade the noble Lord, Lord Wakeham, and the Committee that it is neither necessary nor right to go down the road proposed in these amendments.
We believe that it is right as a matter of principle that organisations which are, on a reasonable view and as decided by the courts, exercising a public function should be so treated under the Bill and should have the duty, alongside other organisations having public functions, to act compatibly with the convention rights in respect of those functions. That means (among other things) that, in doing what they do, they should pay due regard to Article 8 (on privacy) as well as to Article 10 (on freedom of expression, which includes also the freedom of the press).
We also believe that it is right as a matter of principle for the courts to have the duty of acting compatibly with the convention not only in cases involving other public authorities but also in developing the common law in deciding cases between individuals. Why should they not? In preparing this Bill, we have taken the view that it is the other course, that of excluding convention considerations altogether from cases between individuals, which would have to be justified. We do not think that that would be justifiable; nor, indeed, do we think it would be practicable. As the noble and learned Lord, Lord Wilberforce, recognised, the courts already bring convention considerations to bear and I have no doubt that they will continue to do so in developing the common law and that they have the support of the noble and learned Lord in making that use of the convention. Clause 3 requires the courts to interpret legislation compatibly with the convention rights and to the fullest extent possible in all cases coming before them.
The noble Lord, Lord Wakeham, properly referred to my letter to him of this morning. I think it preferable, and for the assistance of the Committee since it has already been referred to, that I should read it out in full. The first paragraph refers to the relevant paragraph from counsel's opinion, with which the noble Lord, Lord Wakeham, supplied me, and after referring to that, my letter states:
- "I have been giving further thought to whether the Press Complaints Commission (PCC) is a 'public authority' under the Human Rights Bill.
- The authorities which [counsel] cites are not, as I said, precisely in point because they are judicial review cases. But I do agree that they show a disposition on the part of the Courts to regard the PCC as a 'public authority'. On reconsideration, therefore, of the relevant provision of the Bill: is the PCC a 'person certain of whose functions are functions of a public nature'? (Clause 6 (3)(c)). I now tend to think that ... the press might well be held to be a 'function of a public nature', so that the PCC would be a 'public authority' under the Human Rights Act.
- I do, however, think that, for the reasons I gave when we met, this possibility is an opportunity, not a burden, for the PCC. The opportunity is that the courts would look to the PCC as the pre-eminently appropriate public authority to deliver effective self-regulation, fairly balancing Articles 8 and 10. The Courts, therefore, would only themselves intervene if self-regulation did not adequately secure compliance with the Convention.
- I repeat that when the press has solid grounds, in the public interest, for publication, even where an individual's privacy is invaded, it will not go down to interim injunctions; in just the same way as it does not go down to injunctions, in libel cases, when it says that it will justify.
- I look forward to the debate in Committee on Monday".
I want to tackle the concerns of the press directly. They are essentially twofold. First, will the courts develop a law of privacy, and, secondly, is the PCC itself to be regarded as a public authority which should act consistently with the convention? First, as I have often said, the judges are pen-poised, regardless of incorporation of the convention, to develop a right to privacy to be protected by the common law. This is not me saying so; they have said so. It must be emphasised that the judges are free to develop the common law in their own independent judicial sphere. What I say positively is that it will be a better law if the judges develop it after incorporation because they will have regard to Articles 8 and 10, giving Article 10 its due high value, which the strenuous efforts of the noble Lord, Lord Lester of Herne Hill, in the courts of this country and of elsewhere have contributed to ensuring that it enjoys.
I believe it to be well recognised, including by the press, that Parliament, if invited to do so, might well pass a tougher statute outlawing invasion of privacy than the judges are likely to develop having regard to Articles 8 and 10, balancing them and giving each its due value and giving Article 10 its due high value. I would respectfully suggest that the noble Lord, Lord Wakeham, had his tongue somewhere in his cheek when he said that he would have preferred the Government to introduce a privacy statute, although, of course, he would have opposed it in principle. This Bill does not impose any statutory controls on the press by a back-door privacy law. I remind the noble Lord,
Lord Henley, that the previous government promised a White Paper on privacy, a promise which they did not deliver.I would not agree with any proposition that the courts as public authorities will be obliged to fashion a law on privacy because of the terms of the Bill. That is simply not so. If it were so, whenever a law cannot be found either in the statute book or as a rule of common law to protect a convention right, the courts would in effect be obliged to legislate by way of judicial decision and to make one. That is not the true position. If it were--in my view, it is not--the courts would also have in effect to legislate where Parliament had acted, but incompatibly with the convention. Let us suppose that an Act of Parliament provides for detention on suspicion of drug trafficking but that the legislation goes too far and conflicts with Article 5. The court would so hold and would make a declaration of incompatibility. The scheme of the Bill is that Parliament may act to remedy a failure where the judges cannot.
In my opinion, the court is not obliged to remedy the failure by legislating via the common law either where a convention right is infringed by incompatible legislation or where, because of the absence of legislation--say, privacy legislation--a convention right is left unprotected. In my view, the courts may not act as legislators and grant new remedies for infringement of convention rights unless the common law itself enables them to develop new rights or remedies. I believe that the true view is that the courts will be able to adapt and develop the common law by relying on existing domestic principles in the laws of trespass, nuisance, copyright, confidence and the like, to fashion a common law right to privacy. That was more or less what the noble and learned Lord, Lord Hoffmann, said in an important public lecture. They may have regard to the convention in developing the common law, as they do today and as the noble and learned Lord, Lord Wilberforce, says it is right that they should.
The experience of continental countries shows that their cautious development of privacy law has been based on domestic law, case by case, although they have also had regard to the convention. I repeat my view that any privacy law developed by the judges will be a better law after incorporation of the convention because the judges will have to balance and have regard to Articles 10 and 8, giving Article 10 its due high value. What I have said is in accord with European jurisprudence. In Winer v. United Kingdom in 1986 the European Commission on Human Rights concluded that because of Article 10 it did not consider that the absence of an actionable right to privacy under English law was a lack of respect for the applicant's private life.
I believe that effective self-regulation is the way forward. The noble Lord, Lord Wakeham, was good enough to acknowledge that as a member for some years of the Appointments Commission to the Press Complaints Commission I had assisted in self-regulation and its governance. The PCC should embrace and welcome the possibility that it may come to be regarded as a public authority under the Bill and expected to deliver convention rights. A beefed-up PCC, as the noble Lord, Lord Lester of Herne Hill, suggests, perhaps with the
power to award compensation in appropriate cases--a power that the PCC lacks today--could become the general arbitrator in practice in these cases provided it did its job strongly and well.The courts may well develop a law of privacy, not because the Government require them to do so but because they will be exercising their freedom to do so in their own independent sphere. But if there were effective self-regulation a law of privacy developed by the judges would hardly ever have to be invoked against the press.
It is wrong for noble Lords to allow this debate to focus exclusively upon a privacy law that applies only to the media. I emphasise to the noble Lord, Lord Wakeham, that the right to privacy is a basic human right. That right can be infringed by a neighbour, an intrusive commercial agency, private investigators, the police and all manner of other people. The little man needs protection against these bodies. It is primarily these malpractices without a shred of public interest to justify them that will be in the sights of the courts if they move to develop a right to privacy as part of the common law. A well regulated press which is essential to a free society has nothing to fear and everything to gain.
I tend to believe that the important function of the PCC to adjudicate on complaints from the public about the press may well be held to be a function of a public nature, so that, as I said in my letter, the PCC might well be held to be a public authority under the Human Rights Bill. But I believe that this is an opportunity, not a burden on the PCC. The opportunity is that the courts would look to the PCC as the pre-eminently appropriate public authority to deliver effective self-regulation fairly balancing Articles 8 and 10. The courts therefore would have to intervene only if self-regulation did not adequately secure compliance with the convention. The message for the press is plain: strengthen self-regulation and strengthen the PCC under its eminent chairmanship.
I do not believe that the courts will grant temporary injunctions where there are solid grounds for the press to maintain that they have public interest grounds to publish something, just as the courts do not restrain libels where the press intends to justify them. I say to the press that its salvation as it sees it can be in its own hands.
The noble Lord has rendered an important service to the House in tabling the amendment. It raises important issues which deserve time to be devoted to them, as has happened, for them to be fully ventilated and discussed. I have given as full a response as I am able to the amendment tabled by the noble Lord. I am sure that he and the interests he represents will consider carefully what I have said, just as I will consider carefully what he and other noble Lords have said. I do not close the door to any proposal. The noble Lord, together with some of his colleagues, has had one meeting with me already. He knows that my door is open for further discussion. But I believe--I agree with every word that the noble Lord, Lord Lester of Herne Hill, has said on this subject--that the door is really open to the PCC, which the noble Lord chairs, to strengthen self-regulation so that the courts will be satisfied in all cases concerning the press that effective remedies are
provided by the PCC and they amount to compliance by the United Kingdom with its obligations under the convention without any need for intervention.
For those reasons, I invite the noble Lord, Lord Wakeham, to seek leave to withdraw his amendment.
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