---

Mr. Lansley: I am listening with care to my right hon. Friend. Before he moves on to the press, will he agree that it is remarkable that, in the other place, a Minister abandoned to the future jurisprudence of UK courts the definition of the scope of the Bill? Does not that leave us in a difficult position in examining the Bill?

Sir Norman Fowler: That is exactly my point--my hon. Friend is entirely correct.

Miss Julie Kirkbride (Bromsgrove): On that point, I was musing why, when the BBC and, presumably, Channel 4 and ITV, are public authorities, ITV companies probably are not--on newspapers, the matter is not clear. From my recollection of my days at ITV, its functions had a public service element, so one would suppose that its activities could be drawn into the ambit of the Bill.

Sir Norman Fowler: The Home Secretary, with his usual clarity, will be able to guide the Committee on those questions, although I am not sure that the Government have so far entirely succeeded in giving clear guidance--we look forward to what the Home Secretary has to say.

My hon. Friends the Members for South Cambridgeshire (Mr. Lansley) and for Bromsgrove (Miss Kirkbride) point to the vagueness that surrounds the matter--none of us is clear about what the legislation means, especially as it seems that it will partly be interpreted only later. As they suggested, it is not that the press is the only issue or that the Press Complaints Commission is the only body that will be affected by the Bill; the status of the press merely serves to illustrate the difficulties with which the amendment is concerned.

Clause 1 sets out the convention rights that are given effect by the Bill, including articles 8 and 10. The trouble is that those articles could be in conflict. Article 8 concerns

17 Jun 1998 : Column 402

the right to respect for private and family life; it states that a public authority should not, except in certain circumstances, interfere with the exercise of that right. Article 10 sets out a right to freedom of expression and to receive and impart information and ideas without interference by a public authority. Somehow, a balance must be struck between what we can call the rights to privacy and free speech and free reporting--we cannot burke the fact that there is a conflict between the two articles.

The Burgess and Maclean case of the 1950s provides a practical example of what I mean. As the Committee will recall, the two British traitors suddenly left the country--they left alone, but Maclean left behind his wife. One newspaper, the Daily Express, took a close interest in Mrs. Maclean, believing that she might join her husband behind the iron curtain. There was a row and the Daily Express was roundly condemned, not least in the other place, for its breach of privacy and its intrusion. Ultimately, of course, Mrs. Maclean did exactly as the newspaper suspected and slipped away to Russia. I do not want to argue the merits of the case. Suffice it to say that there is a true illustration of the real conflict between the two articles.

5.30 pm

So, not surprisingly, a debate has centred on the Press Complaints Commission. Clause 6 provides that it is unlawful for a public authority to act in a way that is incompatible with a convention right. Does that include the commission? The Government's view was that it was exempt from the provisions of the Bill--or, to put it more precisely, that was the Lord Chancellor's view. According to a report on 1 December 1997 in The Guardian--a paper in which I always have the greatest trust--the Lord Chancellor was involved in what the newspaper called a "lively argument" with the now beleaguered Secretary of State for Culture, Media and Sport, who warned the Lord Chancellor that the new law could damage press freedom and interfere with the commission's judgments. According to The Guardian, that argument was shot down in flames by the Lord Chancellor on the grounds that the Secretary of State was a layman and that he was an experienced lawyer. The newspaper reports the Lord Chancellor as telling senior newspaper executives that there was no question of the Press Complaints Commission being affected by the law.

Indeed, the Lord Chancellor sought to give reassurance on Second Reading in the other place when he said--perhaps a less than resounding phrase--

"I am a member of a Government who, as a whole, give the highest value to upholding the freedom of the press."--[Official Report, House of Lords, 3 November 1997; Vol. 582, c. 1229.]

I am not entirely sure what he meant by "as a whole". I suspect that he meant except when the Government's interests are affected. He went on to say, directly to the press--

The Secretary of State for the Home Department (Mr. Jack Straw): Where?

Sir Norman Fowler: I shall have to look that up if the right hon. Gentleman really wants to know. The Lord Chancellor went on to say to the press:

"I understand your concerns but let me assure you that press freedom will be in safe hands with our British judges and with the judges of the European Court."

17 Jun 1998 : Column 403

There might be agreement on both sides of the Committee that "safe in your hands" is a political expression that should be avoided these days by any wise politician because, only a few weeks after the Second Reading debate, on 18 November, David Pannick QC wrote an important article in The Times suggesting that the Press Complaints Commission was a public authority. On 24 November, the Lord Chancellor did a spectacular legal U-turn and accepted that his advice had been wrong. In a press notice he said:


"It is possible that the Press Complaints Commission will be held to be a public authority under the Human Rights Bill when it becomes law. I had earlier thoughts that it would probably not, but an Opinion given to the PCC by David Pannick QC persuaded me that it probably will be."

However, he added:

"If so this is good news for the press because the courts will regard the PCC as the primary body to provide effective protection to people who suffer from press abuses."

He went on to add the slightly dubious proposition that he and Mr. Pannick

"have both been telling the press exactly the same thing."

Those assurances did not entirely settle the matter with the public, the press or, perhaps above all, with the Press Complaints Commission. As the noble Lord Wakeham, the chairman of the commission, pointed out, if his adjudications on matters of privacy could be subject to subsequent action by the courts, his task of trying to resolve differences would no longer be a practicable proposition. The courts would be able to intervene after the commission's work had finished. He added that his chances of making self-regulation work to the benefit of ordinary people and without cost to them would be minimal.

The point being made was that the Press Complaints Commission seeks to mediate and reach agreement. The fear is that, if it becomes a body with new procedures to fine newspapers and to introduce a mechanism for prior restraint of newspapers shown to be on the point of breaching someone's privacy, the whole nature of the commission will change. Certainly it can be argued, as some have, that that should be the case, but I do not think that anyone would seriously argue that we should do all that and change all that entirely by accident. That again is what lies behind my fears about the Bill.

Miss Kirkbride: Perhaps this is a question for the Home Secretary, but you--

Hon. Members: Right hon. Friend.

Sir Norman Fowler: I will answer to anything.

Miss Kirkbride: My right hon. Friend might like to muse on whether, if a judge takes that decision, that judgment could then be overtaken if another judge decided in another case that some of the capacities of the Press Complaints Commission should be considered those of a public authority under the relevant legislation. How moveable a feast will it be?

Sir Norman Fowler: As my hon. Friend said, that is really for the Home Secretary to explain. As far as the chairman of the PCC is concerned, it raises the fear and doubt that it will be bypassed and that people will go

17 Jun 1998 : Column 404

straight to the courts. I am trying to be as neutral as I can--I have my own views on this--and would merely say that, if we are to make changes of that sort, they should be made deliberately and explicitly and in the knowledge of what we are doing. We do not want to drift into such a change.

Mr. Robert Maclennan (Caithness, Sutherland and Easter Ross): To clarify the thinking of the chairman of the PCC, if possible, was he saying that the commission felt that it could not be effective if there were a potential legal remedy? If he was, it would seem to rule the PCC out of considering, for example, potential defamation cases. I am not clear whether its case was expressed as widely as that.

Sir Norman Fowler: The right hon. Gentleman must make up his own mind and he will have read the debates in the other place as I have. Basically, my noble Friend Lord Wakeham said that, first, there was a danger that the whole nature of the PCC would be changed with the right to fine or order compensation, which it does not have at the moment--the idea of prior restraint is certainly entirely different. The second danger would be that no one would take the slightest bit of notice of the commission in any event, but would simply bypass it and go to the courts. Why deal with the middle man, so to speak? My noble Friend had a number of concerns.

---