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36
After Clause 13, insert the following new clause--
(".--(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.
(2) If the person against whom the application for relief is made ("the respondent") is neither present nor represented, no such relief is to be granted unless the court is satisfied--
(a) that the applicant has taken all practicable steps to notify the respondent; or
(b) that there are compelling reasons why the respondent should not be notified.
(3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.
(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to--
(a) the extent to which--
(i) the material has, or is about to, become available to the public; or
(ii) it is, or would be, in the public interest for the material to be published;
(b) any relevant privacy code.
(5) In this section--
"court" includes a tribunal; and
"relief" includes any remedy or order (other than in criminal proceedings).").
Lord Williams of Mostyn: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 36. It is an extremely important amendment because it deals with the potential impact of the Human Rights Bill on the freedom of the press. As your Lordships will recall, a good deal of concern was expressed that the Bill might undermine press freedom and result in the introduction of a privacy law by the back door. We did not take that view.
However, after the Bill left this House we had a number of further conversations and representations in correspondence with a large number of people who were interested in free speech, whether in conventional writing, journalism, the broadcast media and so forth. Having considered all the representations made--and I should say how grateful the Government are notably to the noble Lord, Lord Wakeham, and the representatives of the broadcast media--we thought that we should put forward this amendment which is designed, and designed solely, to ensure that free speech, free expression, is abundantly safeguarded after the Bill becomes law.
The terms of the clause are well known to your Lordships. It relates to questions of protection of free speech and free opinion as well as maintaining a proper balance for those whose personal interests in their reputation and private life need to be properly safeguarded.
Of all the occasions during the passage of this Bill, the occasion of introducing this amendment to your Lordships' House is one which gives the greatest pleasure.
Moved, That the House do agree with the Commons in their Amendment No. 36.--(Lord Williams of Mostyn.)
Lord Lester of Herne Hill: My Lords, it gives me great pleasure to support the amendment. I am sorry that the noble Lord, Lord Wakeham, is not in his place. I am glad that the Government resisted the Press Complaints Commission's attempt, which the noble Lord, Lord Wakeham, led, to immunise itself from liability under Clause 6 of the Bill as a public authority. The PCC performs extremely important public functions which have an impact on free speech, a fair trial and personal privacy. If it makes decisions which breach convention rights, it is important that the victim should have an effective remedy against it as a public authority.
I am glad also that the Government have successfully resisted the suggestion from some sections of the media that the Bill should not be able to be used as a springboard for the development by the courts of a common law protection of personal privacy. I am glad that they have not given in to an ill-judged campaign from some sections of the media.
This amendment creates a fair balance between the right to free speech and other competing rights and interests. What I like about it in particular is that it will ensure that prior restraints on free speech against the media--the most draconian form of interference in free speech--are imposed by the courts only when necessary and that the right to free speech is given particular weight by the courts.
But there is another aspect which I also welcome. This amendment will encourage the media to develop effective means of enforcing privacy codes because the extent to which a newspaper has complied with a relevant privacy code is a matter to be taken into account by the courts in deciding whether to grant a media injunction. The amendment will not fetter the courts in developing the common law nor in construing legislation in conformity with convention rights, including both the right to free speech and the right to respect for personal privacy. Therefore, thanks to this amendment, our law will be able to develop, on lines similar to those in other common law countries, including the United States. We fully support this fair and balanced amendment.
On Question, Motion agreed to.
37
After Clause 13, insert the following new clause--
(".--(1) If a court's determination of any question arising under this Act might affect the exercise by a religious organisation (itself or its members collectively) of the Convention right to freedom of thought, conscience and religion, it must have particular regard to the importance of that right.
(2) In this section, "court" includes a tribunal.").
38
Clause 20, page 12, line 30, after ("power") insert ("of a Minister of the Crown").
Page 12, line 32, after ("power") insert ("of the Lord Chancellor or the Secretary of State").
Page 12, line 36, after ("made") insert ("by the Lord Chancellor or the Secretary of State").
Page 12, line 40, at end insert--
Clause 21, page 12, line 41, at end insert--
Page 13, line 8, at end insert--
Page 13, leave out lines 15 to 18 and insert--
Page 13, line 20, after ("legislation") insert ("(otherwise than by the National Assembly for Wales, a member of the Scottish Executive, a Northern Ireland Minister or a Northern Ireland department)").
Page 13, line 24, at end insert--
Page 13, line 31, leave out ("or") and insert--
Page 13, line 32, at end insert ("or the corresponding provision of the Northern Ireland Act 1998; or
Page 13, line 34, leave out ("Northern Ireland Assembly") and insert ("Assembly established under section 1 of the Northern Ireland Assembly Act 1973;
Page 13, line 40, leave out ("paragraphs") and insert ("paragraph (ab),").
39
40
41
("( ) The power of a Northern Ireland department to make--
(a) rules under section 2(3)(b) or 7(11)(c); or
(b) an order under section 7(13);
is exercisable by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979.
( ) Any rules made under section 2(3)(b) or 7(11)(c) shall be subject to negative resolution; and section 41(6) of the Interpretation Act (Northern Ireland) 1954 (meaning of "subject to negative resolution") shall apply as if the power to make the rules were conferred by an Act of the Northern Ireland Assembly.
( ) No order may be made by a Northern Ireland department under section 7(13) unless a draft of the order has been laid before, and approved by, the Northern Ireland Assembly.").
42
(""amend" includes repeal and apply (with or without modifications);").
43
(""Northern Ireland Minister" includes the First Minister and the deputy First Minister in Northern Ireland;").
44
("(f) Order in Council--
(i) made in exercise of Her Majesty's Royal Prerogative;
(ii) made under section 38(1)(a) of the Northern Ireland Constitution Act 1973 or the corresponding provision of the Northern Ireland Act 1998; or
(iii) amending an Act of a kind mentioned in paragraph (a), (b) or (c);").
45
46
(""the Sixth Protocol" means the Protocol to the Convention agreed at Strasbourg on 28th April 1983;").
47
("(ii) made").
48
(iii) amending an Act of a kind mentioned in the definition of primary legislation;
(ab) Act of the Scottish Parliament;").
49
(ca) Act of the Northern Ireland Assembly;").
50
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