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Lord Simon of Glaisdale: My Lords, as we are once again sitting late on the Bill, I shall not deliver the speech that I had contemplated. However, I should like to refer very briefly to what the noble Lord, Lord Wakeham, said. In the first place, since 1991 there have been a number of offences by the press which have deeply disturbed public opinion; indeed, one cannot just waive them aside.

Secondly, I can see no reason why the Bill should undermine self-regulation. At an earlier stage, my noble and learned friend expressedly disclaimed that. I

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respectfully agree. In so far as there is an effective system of self regulation, there need be no recourse to remedies under the Bill. The remedies are entirely in the hands of the PCC.

Thirdly, the noble Lord referred to what is undoubtedly a danger; namely, gagging writs. Your Lordships had to consider that matter while considering the defamation Bill during the last Parliament. The suggestion was made that patent law could provide a model in that respect. At one time it was a great mischief that threats of action for infringement of patent and action writs for infringement of patent were being inordinately and grossly used by rich corporations sitting on their own patents to snuff out new patents. The law countered that by making it an offence to threaten to or to issue a writ for infringement without reasonable cause.

When that was suggested during the proceedings on the defamation Bill, my noble and learned friend Lord Mackay of Clashfern, the then Lord Chancellor, said that he would take the matter away and have it considered in his department, since when the silence of the grave has descended. I beg my noble and learned friend on the Woolsack to take that document out of its pigeonhole, dust it down and see whether it can usefully be used not only to prevent the gagging writs of defamation but also to meet the anxieties of the noble Lord, Lord Wakeham.

The only other comment that I wish to make is that I would like the Cross-Benchers to be associated with the tribute that was paid by the noble Lord, Lord Henley. Indeed, we must also associate his Front Bench with that tribute. My noble and learned friend the Lord Chancellor and the noble Lord, Lord Williams of Mostyn, have shown a quite unusual command of their Bill and all its background. One must remember, too, that this is only a small part of the multifarious burdens which are descending upon them at present. I desired to say that because I have been critical during the proceedings on the Bill of the inflexibility of Ministers.

Your Lordships will remember Burke's famous picture of the court of Marie Antoinette and the society that sustained it which ended,

    "vice itself lost half its evil, by losing all its grossness".
So we can say that inflexibility has lost half its evil by losing any measure of discourtesy. The noble and learned Lords have left us deeply in their debt.

9.55 p.m.

Lord Lester of Herne Hill: My Lords, I can bet the Bank of England to a blood orange that what I say in a few minutes about the intervention of the noble Lord, Lord Wakeham, will not be reported in the newspapers to the same extent as what he has said. But before I come to that, I shall deal with some more graceful matters.

First, I echo the tribute of the noble Lord, Lord Henley, to the noble and learned Lord the Lord Chancellor and to the noble Lord, Lord Williams of Mostyn. I also pay tribute to their civil servants and parliamentary counsel who have given such magnificent support to the Government and to this House. The Bill

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is brilliantly conceived and exquisitely well executed. I congratulate the Government and especially their unnamed advisers on having produced a measure of this quality.

It is also appropriate to express the privilege I feel in having taken part in debates on the most important constitutional measure that has been introduced into Parliament in my lifetime. It will not be the last of this Government but it is the first, and it will profoundly affect all three branches of government. It is a great pleasure from these Benches to have been able to give wholehearted support to this new reforming Government and to a Lord Chancellor who is committed to important measures of democratic renewal and constitutional reform under the rule of law. His party and my party are committed to that. We have embarked on developing a modern constitution for a modern citizenship in which everyone is able to enjoy their basic human rights; in which there is greater accountability of Ministers and officials to Parliament and to the courts; in which there is subsidiarity, devolution to the nations and the regions; freedom of information and a voting system which more fairly reflects the wishes of the electors in a plural democracy. We are, in truth, privileged to be fashioning, after the ice age of no change in these areas, a true modern constitutional resettlement.

We have made a few modest improvements to the Bill during its passage thanks to the flexibility Ministers have shown. I believe that the Bill has been marred in certain respects. I hope that those defects may be removed in another place. I hope that when the Bill is considered in another place some of those vigorous, open-minded new Labour and Liberal Democrat MPs might join together in their independent minded strength to improve the Bill in some of the respects that we have urged on your Lordships.

I respectfully agree with what the noble and learned Lord, Lord Simon of Glaisdale, has said about the intervention of the noble Lord, Lord Wakeham. I have great respect and affection for the noble Lord, Lord Wakeham. He was the Leader of this House when I came here and showed me particular kindness. He is modest enough to admit that he might be wrong. That applies, of course, to what I am about to say. However, I believe that he is part of an entirely misguided misrepresentation of the effect of this Bill on freedom of speech.

I am not entitled to say much about many things, but I am entitled to say this because I have spent my professional lifetime using the human rights convention in Strasbourg on behalf of newspapers and citizens to reach places with the convention that could not be reached by English statutes or judicial decisions. I did Spycatcher, the thalidomide case, the Harriet Harman case and a series of similar cases of that kind. Having represented newspapers in Strasbourg and in this country, it sticks in my throat when I read in newspapers that they are entitled to have the benefit of Article 10 of the convention on free speech, but they must be somehow immunised against the effects of Article 8 on privacy. There is no other democracy in the world where

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that is the case. It is not the case in the United States, the land of the First Amendment, where there is privacy protection and the protection of free speech. It is not the case in Australia, Canada, New Zealand, India or the rest of Europe. I know of no country which has in its legal system what has been advocated by some sections of the press during a campaign against these aspects of the Bill.

To use a phrase of the noble and learned Lord, Lord Ackner, in a case which I once lost in front of him, Spycatcher, I am glad that the Lord Chancellor and his colleagues have so far proved themselves to be a rock and not jellyfish. It would be easy to cave in to this press campaign.

The reason that I believe the noble Lord, Lord Wakeham, the Press Complaints Commission and the press which support the commission are misguided is easy to summarise. First, the right to free speech is paramount, especially when newspapers act as watchdogs in reporting news rather than simply entertaining on matters of public interest. There is an entirely consistent body of case law in Strasbourg which states that. And English courts have now followed the Strasbourg jurisprudence--even before this Bill had been incorporated. The right to privacy is an exception to the right to free speech. The two have to be balanced by the principle of proportionality. I know of no case in Strasbourg which has ever threatened the freedom of the press. That is the first point. Bringing those rights home means bringing home a balanced legal system in which our courts will be in the same position as the Strasbourg courts.

Secondly, the Bill poses no challenge of any kind to the work of the Press Complaints Commission. If the Press Complaints Commission and its backers choose to stay as they are and not be given further powers, that is their entitlement. But if they choose that unwise course, it will simply mean that they will not be able to provide effective remedies through self-regulation in cases where they otherwise could. To the extent that they do not provide effective remedies, it will be left to the courts to do so using the common law as they always have done.

That is why I agree with the Lord Chancellor who has consistently argued that it is in the interest of freedom of the press to give the PCC, as a self-regulatory body, effective powers and effective remedies. That does not mean turning the PCC into a court of law; still less does it mean giving them the power to issue injunctions. But if it can compensate victims, make recommendations and show through its procedures that it can provide effective remedies, the courts will defer to the PCC.

The PCC is a public authority. I can illustrate that by asking noble Lords this question. What would be the position if the PCC were to hand down a decision which unnecessarily infringed on free speech? Let us suppose that it gave too much preference to privacy and too little to free speech. The PCC would be breaching the convention and there would be a need for an effective remedy against the PCC acting in an unduly censorious way; and quite rightly, too. The PCC exercises public powers in the same way as the Advertising Standards Authority or any of the other regulatory bodies.

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The noble Lord, Lord Wakeham, and the PCC are better off being a public authority than a private club because no one can bring proceedings against the PCC except by way of judicial review. Leave needs to be sought, the remedies are discretionary, discoveries in cross-examination are rare and the PCC is given all the advantages of a public authority.

During the debates, the noble Lord, Lord Wakeham, referred several times to the poor and the rich. He complained that somehow this would be a rich person's charter--and what about the poor? When I heard the noble Lord say that, I longed to ask--I have not yet done so--what does the PCC really want? Is it legal aid for the poor to be able to bring privacy claims against the press? I do not think that Mr. Murdoch or Mr. Conrad Black would be terribly pleased if one gave legal aid on a widespread basis to bring privacy claims any more than to bring defamation claims. The reality is that the Bill will aid the poor as well as the rich, provided that the Lord Chancellor and his colleagues are able to deliver the public interest legal aid that we have been promised.

I do not perceive any threat whatever to the freedom of the press or, more importantly, the freedom of the public. If I may say so, I am sorry that the noble Lord has chosen to make a prepared speech of that kind rather than moving an amendment today, as it was open to him to do, to test the opinion of the House. I do not believe that the opinion of the House would at all accord with the views that he expressed. I may have sounded rather rough in my remarks and apologise if that was the case; however, it is important that we are clear about these matters.

I wish to say one final thing, and I apologise for having taken so long. We are incorporating the convention at just the right time--I echo the fears expressed by the noble and learned Lord, Lord Browne-Wilkinson, at an earlier stage as to the future of the European Court of Human Rights. Thirty judges have now been elected under the new procedure to the permanent court; there are another 10 to go. All I can say, with great respect to them, is that we may have lived through the best period of the European Court of Human Rights. It may never be able to match in my lifetime the strength that it had 10 or 15 years ago. Thank heavens, this Bill will empower British judges to give effective domestic remedies to our citizens. I warmly congratulate the Government on making that possible and express delight from these Benches.

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