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Baroness Buscombe moved Amendment No. 7:

The noble Baroness said: My Lords, I shall speak to Amendments Nos. 7 and 8 and I shall not move Amendments Nos. 13 and 15.

We return to a subject debated in Committee—the principles of good regulation. There was a considerable measure of agreement on all sides of your Lordships' House. We all accept, and are in favour of, the principles of good regulation.

On this side of the House, we believe that the principles of good regulation should be overriding principles rather than merely a factor to which Ofcom must have regard. I am particularly concerned about

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the expression "must have regard". It is an expression familiar to lawyers and has been considered by one of the judges of the Queen's Bench Division in an application for judicial review against the Police Complaints Board. For those who have access to law reports, this case is reported in the second volume of the All England Law Reports for 1983 on page 353.

In that case, Mr Justice McNeill held that a requirement that the Police Complaints Board had to have regard to guidance given by the Secretary of State meant no more than that the board was required to take the guidance into account. It did not mean that it was obliged to comply with the guidance. In this context, it is worrying with regard to principles of good regulation because we do not consider that it is acceptable that Ofcom merely has to take the principles of better regulation into account. It is not obliged to comply with those principles and is therefore free to depart from them. To all intents and purposes, Ofcom should be obliged to comply with those principles.

The principles should not merely be included as a factor or objective to be taken into account or to which regard must be had in subsection (3). The principles are overriding principles which must be observed in taking into account or having regard to the factors and objectives in subsection (3). They are on a very different level from those mere factors or objectives in subsection (3) and various factors or objectives may or may not be applicable in one case or another. In contrast, the principles of good regulation must apply in every case. It is important—indeed essential—that Ofcom must take particular account of these principles.

In Committee, the Minister referred to the distinction between subsection (2), which concerns matters that Ofcom can control, and subsection (3) which, on the whole, concerns matters it can only influence. That begs the question: in what circumstances would the principles not apply? Surely, if a regulator can ignore principles of better regulation, the Bill should specify them—and specify when. I am grateful to the Minister for the opportunity he gave between Committee and Report stages to discuss this matter. I hope that he has taken this issue on board. Our amendment meets the Minister's concerns in Committee. I beg to move.

7.15 p.m.

Lord McIntosh of Haringey: My Lords, again, perhaps it would be helpful for me to intervene, thus curtailing further debate. We recognise the relevance of the principles of better regulation, particularly transparency and accountability. We recognise that there are still concerns on this issue. The noble Baroness, Lady Buscombe, has put forward an eloquent case for us to consider whether there is any way in which we can strengthen the references to the principles of good regulation. We accept that as a regulator these principles will impact directly on

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Ofcom and should be central to how it will operate. We shall take this away for consideration, with the aim of producing appropriate amendments at Third Reading.

Lord Avebury: My Lords, I thank the Minister for his comments. In any further discussions which he may have in consequence of the promise that he made in Committee to look into this matter and determine whether a better formulation can be found—repeated again now—I should be most grateful if he would involve me in the discussions.

Lord McIntosh of Haringey: My Lords, with pleasure.

Baroness Buscombe: My Lords, I thank the Minister for his very encouraging response. I hoped that our amendment could be accepted. I believe that it meets all the criteria and concerns raised in Committee. I am sorry that we have to wait with bated breath until Third Reading. I hope that at that stage there will be a government amendment or amendments which we can support. For now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 8 not moved.]

Baroness Howe of Idlicote moved Amendment No. 9:

    Page 3, line 49, at end insert "consistently with the proper protection of other fundamental rights"

The noble Baroness said: My Lords, Amendment No. 9 concerns the legal balance between two fundamental human rights—namely, the right to privacy and the right to speak freely. Both those rights are spelt out in the European Convention on Human Rights, respectively in Articles 8 and 10. I am sure that I need not remind your Lordships that the ECHR was drafted by UK lawyers some 50 years ago and has, since the Human Rights Act 1998, been part of our domestic law.

Those two rights were then perceived, as they are today, as being of equal value; that has recently clearly been reaffirmed in more than one way. I cite first Council of Europe Resolution 1165 of 1998. Paragraph 11 states:

    "The assembly reaffirms the importance of every person's right to privacy and of the right to freedom of expression, as fundamental to a democratic society. Those rights are neither absolute nor in any hierarchical order, since they are of equal value".

As drafted, this clause does not properly reflect that balance. I know that this is a point of law—I am no lawyer—but that view has been very clearly argued in an article in Legal Week, dated 12th December, by a partner in the well-known law firm, Peter Carter-Ruck and Partners—namely, Mark Thomson. He makes the point—so do I—that the reference in subsection (3)(g) to acting in a manner which,

    "best guarantees an appropriate level of freedom of expression",

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implies that this right has some kind of priority over other fundamental rights. I would argue that this is incorrect both legally and practically and is contrary to the obligation of the United Kingdom under the European Convention on Human Rights.

Freedom of expression is specifically protected by the word "unwarranted" in subsection (3)(2)(f)(ii). An infringement of privacy made in the proper exercise of freedom of expression would obviously be "warranted". For example, where privacy is invaded in order to expose crime or wrongdoing, the invasion could not be described as "unwarranted". Subsection (3)(g) appears to go wrongly in the opposite direction, quite possibly in three respects, by the use of three almost superlative words—"the need to secure", "the manner that best", "guarantees", and so on. Put simply, the attempt to "guarantee" some kind of priority for freedom of speech manifestly goes too far.

I close by mentioning two cases decided by the courts, each of which started during my chairmanship of the Broadcasting Standards Commission: the Dixon case and most notably the case of Peck v United Kingdom. The Peck case ended up in the Strasbourg court, which held that the UK was in breach of its Article 13 obligations to provide Mr Peck with an effective remedy in order to provide sufficient respect for his privacy rights.

The Master of the Rolls, the noble and learned Lord, Lord Phillips of Worth Matravers, has subsequently commented that that case suggests that,

    "either the Courts or the legislators are going to have to establish a tort of invasion of privacy if this country is to comply with the Convention's obligations".

If this clause is allowed to stand unamended, it risks being struck down as being out of line with our convention obligations. My amendment is designed to prevent that happening and to restore the balance that is required not only by the European convention, but also by any reasonable sense of balanced justice.

There is perhaps one other possible way to deal with this issue: that is, omit Clause 3(3)(g) altogether. I beg to move.

Lord McNally: My Lords, in Committee, the noble Lord, Lord Lipsey, referred to a complaint that had been made against a particular programme on which the Broadcasting Standards Council produced a censorious verdict and about which the programme makers had pretty well rejected the council's adjudication. At that point the noble Lord said that in his view what was needed was a cultural change in the relationship between the broadcasters and any regulators. That is probably true. I have often referred to what I think is the wholly healthy relationship between the advertising industry and the Advertising Standards Authority.

The noble Baroness, Lady Howe, does great service to the House and to the Bill by moving her amendments today. Amendment No. 9 again draws attention to areas where the broadcasters may feel desperately strongly about the right to freedom of speech. It is in the public mind a real concern and fear

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that, if the balance is too wrong between the two rights to which the noble Baroness has referred, they will become the victims of that freedom of speech with little power of redress. Therefore, her points deserve firm consideration by the Government.

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