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Lord Lester of Herne Hill: I hope it will be for the convenience of the Committee if I speak to Amendments Nos. 32, 33, 35 and 42 and at the same time to Amendment No. 39, the official Opposition amendment seeking to exclude the press and the broadcasting media from the scope of Clause 7.

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Amendments Nos. 32 and 35 seek to replace the broad definition of "public authority" in Clause 6(3) by a narrow definition that would effectively exclude a wide range of persons exercising functions of a public nature from the obligation to comply with convention rights. For example, they would exclude the Independent Television Commission, the Video Recordings Authority, the Radio Authority, the Broadcasting Standards Commission, the Press Complaints Commission and the Advertising Standards Authority. Those are all bodies, whether public or private in the technical sense, which perform functions of a public nature. They are all subject to judicial review as public authorities, as, for example, is the City Takeover Panel.

I agree with David Pannick QC. Though I have not had the benefit of sight of the Lord Chancellor's letter, I agree with him also that there can be no doubt that the Press Complaints Commission would not only be judicially reviewable but also a public authority for which the United Kingdom would be nationally responsible under the convention if it unnecessarily restricted free speech.

The United Kingdom is responsible under Article 10 of the convention if any one of those public authorities exercises its regulatory powers in breach of the right to free speech under Article 10 or, for that matter, if it purports to determine someone's civil rights or obligations without a fair hearing in breach of Article 6. I say that all those bodies exercising public functions are excluded by the amendment because (a) they are not a "court or tribunal" in the words of Amendment No. 32 and (b) they do not,


    "confer a legally enforceable right or duty on another person",

in the words of Amendment No. 35.

In spite of what has been said by the noble Lord, Lord Wakeham, I do not understand the mischief that this amendment seeks to remove from the Bill in respect of all those public authorities. It is surely essential that any person for whose breach of the convention the UK would be internationally responsible should be within the scope of Clause 6. The amendment will simply create a mismatch between our international obligations and domestic implementation.

I should add that it is in the interests of those regulatory bodies--including the PCC--exercising public functions to be subject to the court's supervisory jurisdiction by way of judicial review because they are protected by safeguards built into that supervisory jurisdiction, including the need to seek leave to apply against them for judicial review, fairly strict time limits, the limited scope for discovery and the discretionary nature of remedies. As regards Amendment No. 42, I am mystified by the proposed exclusion of Clause 6(5) since that serves the important purpose of making it clear that a person is not a public authority by virtue of Clause 6(3)(c) if the nature of the act is private.

Those may seem technical points. Perhaps I may now turn to the thrust of the amendment of the noble Lord, Lord Wakeham, and with it the amendment tabled in the name of the official Opposition which seeks to exclude

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altogether from the scope of the duty to comply with convention rights the press and the broadcasting media. What is therefore contemplated by the amendment of the noble Lord, Lord Wakeham, and those standing in the name of the Opposition is that the press and broadcasting media should be able to enjoy the benefit of the right to free speech guaranteed by Article 10 but that they should not be under any legal obligation to respect the right to personal privacy guaranteed by Article 8.

Among other things, those amendments fly in the face of the Broadcasting Act 1996 sponsored by Mr. Major's government, Section 107 of which imposed a duty on the Broadcasting Standards Commission to draw up a code giving guidance as to the principles to be observed and the practices to be followed by the broadcasting media in connection with the avoidance of the unwarranted infringement of privacy.

Only today the Broadcasting Standards Commission, wisely and effectively chaired by Lady Howe, published a new code on fairness and privacy for broadcasters. The code sets out important basic principles which provide a useful ethical framework. It requires that any infringement of privacy must be justified by an overriding public interest in disclosure of the information. That includes revealing and detecting crime or disreputable behaviour; protecting public health or safety; exposing misleading claims or disclosing significant rather than insignificant incompetence in public office. The code also stresses that the means of obtaining the information must be proportionate to the matter under investigation.

The code seeks to balance two competing public interests--the citizen's basic right to freedom of information and expression and the responsibility of journalists and broadcasters not to infringe the citizen's right to personal privacy without good reason. As Lady Howe points out, there is considerable virtue in the electronic and print media setting standards. She expresses the hope and belief that the Press Complaints Commission will be onside in the same way. Her code--that of the Broadcasting Standards Commission--refers to the vulnerability of children and makes it clear that children do not lose the right of privacy because of the fame or notoriety of their parents or events in their school.

I find it a bit surprising, especially in the light of the public furore surrounding the death of Diana, Princess of Wales, that both the noble Lord, Lord Wakeham, and the official Opposition seek to remove the Broadcasting Standards Commission, the Independent Television Commission, the Radio Authority, the broadcasters and I dare say the Video Recordings Authority and the Press Complaints Commission from the obligation to respect both the right to free expression and the right to personal privacy.

As regards the exclusion of the independent press, that is unnecessary because a newspaper organisation could not properly be regarded as a public authority within the meaning of Clause 6(3)(c). The effect of the Bill on a newspaper is much more subtle and indirect. It is clear from the Strasbourg case law that there are

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circumstances in which Article 8 of the convention imposes a positive obligation on the state to ensure that personal privacy is respected vis-a-vis private persons as well as public authorities.

Under Clause 6(3) a public authority includes a court. Under Clause 13(1) a person may rely on a convention right without prejudice to any other right or freedom conferred on him under any other law. Clause 13(2) makes it clear that Sections 7 to 9 will not affect the right of any person to make any claim or bring any proceedings which he could make or bring apart from those sections.

I have no doubt that even if these amendments were to be accepted, our courts would develop a common law right to respect for personal privacy in an appropriate case overruling the decision of the Court of Appeal in Kaye v. Robertson. There are already strong dicta to that effect by senior judges in their judicial and extra-judicial capacities. Happily, nothing in the Bill prevents them from developing the common law (see Clause 13(2)), nor does anything in the Bill prevent the courts from having regard to the convention, including Article 8, in proceedings other than those brought under Sections 7 to 9.

I believe that the press has nothing to fear in the development of a common law right of personal privacy whether under this Bill or at common law. I agree with my colleague David Pannick QC, who wrote a very useful article in The Times last week, that where the Press Complaints Commission, with suitably enhanced powers, exercises those powers fairly and reasonably in accordance with Articles 8 and 10, the courts will not intervene but will respect the broad discretionary powers of the PCC. The problem is that the PCC does not have the power to grant effective remedies for infringements of personal privacy, including a power to order the payment of compensation. If the press wishes to avoid unnecessary litigation, this Bill would be a spur to reform because it would be well advised to empower the PCC, under the chairmanship of the noble Lord, Lord Wakeham, to grant that crucial remedy.

As regards the threat of interlocutory injunctions to restrain publications of infringements of personal privacy, our courts will surely take account of the Strasbourg case law emphasising that prior restraints on publication are a draconian interference with free speech requiring a compelling justification based on strict necessity. Where there is a reasonable prospect of there being a genuine public interest defence, no sensible judge would grant an interlocutory injunction preventing publication and thereby creating a breach by the courts of Article 10 of the convention.

I should add for good measure that I have read exaggerated suggestions in, I believe, the Mail on Sunday, indicating that in France and Germany privacy protection hampers the role of the free press in investigating and uncovering information about government and other malpractices. I have checked both with the president of the German Constitutional Court, Professor Doctor Jutta Limbach, and with Roger Errera, a distinguished member of the French Conseil d'Etat and former chairman of the Media Commission

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established by President Mitterand. In Germany, as under the convention, the right to free speech is usually paramount. In France, defamation law is much more favourable to the press than in this country because as the burden of proof is on the plaintiff, there are wide public interest defences and the awards for damages are small. I should also observe that even in the United States, the country of the First Amendment, there is ample protection of personal privacy under state statutes and American common law.

I have had the privilege of acting on behalf of newspapers and broadcasters in challenging many unnecessary restraints on free speech imposed by the English laws of contempt, copyright, defamation, the protection of confidential information, contracts, and so on. In all those cases I have relied on Article 10 of the convention, whether in Strasbourg, or in this country, or in Hong Kong. I doubt whether any other English advocate has made as much practical use of Article 10 in promoting the effective protection of the right to free speech. However, that right is not absolute. The unfairness of these amendments is that they would give the press rights against public authorities while seeking to create immunities where the press acts in breach of its responsibilities to the individual citizen. I devoutly hope that they will be withdrawn.


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