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Lord Henley: My Lords, as this Bill comes to the end of its journey through this House and before we send it to another place, as is customary I should like to say a few words of thanks to noble and learned Lords on the Government Benches who have dealt with this Bill. In particular, I express thanks to the noble and learned Lord the Lord Chancellor, who has put up with
I particularly thank the noble Lord, Lord Williams of Mostyn, for his very helpful letters both to me and my noble friend Lord Kingsland. I thank my noble and learned friend Lord Mackay of Drumadoon and the noble and learned Lord the Lord Advocate, who has had the difficult task of dealing with some of the rather technical Scottish issues.
I repeat that we have a number of concerns and I mention just three of them. Earlier this afternoon the House passed an amendment moved by my noble friend Lady Young relating to the Church of England and various religious bodies. I sincerely hope that the Government will consider very carefully how to proceed before asking another place to overturn that amendment, but obviously that is a matter for another place to consider. We very much regret that the Government did not move more than they did--I appreciate that they moved a certain amount--on the fast-track procedure. I regret that, especially in the light of the report of the Delegated Powers Scrutiny Committee whose advice we always followed while we were in government from the moment it was set up. It would have been helpful had the Government done the same.
My third point relates to an amendment which we considered tabling at this stage. We then decided that it would not be appropriate to raise a new matter on Third Reading. It is one which my honourable and right honourable friends will consider raising in another place. It is that the Bill should, in effect, provide for a government right of appeal to Strasbourg. The noble and learned Lord the Lord Chancellor made clear today that under Strasbourg law only a citizen, and not a government or public body, can take a case to Strasbourg. We should consider seriously whether amendments can be produced whereby, if the Government are dissatisfied with a ruling of the House of Lords, they can, by ministerial certificate, provide that they shall be under no obligation to amend the law unless and until the issue has been the subject of a Strasbourg ruling.
Lord Wakeham: My Lords, I am the chairman of the Press Complaints Commission and therefore it is right that I should declare an interest. Having had a long day sitting here without saying a word, I feel that I now have to say something about the position of the press. Let me say at the outset that I welcome the fact that the Government have this morning made it clear that the issues I have raised surrounding this Bill, which include questions of prior constraint and financial compensation, remain under active consideration. Discussions continue, and no decisions have been reached.
These are matters of fundamental importance in a free society. For that reason, I wrote today to the noble and learned Lord the Lord Chancellor and his right honourable friend the Secretary of State for Culture, Media and Sport, setting out in detail my concerns, especially on the subject of prior restraints. I have also published the letter in view of the public interest involved.
I have always made it clear that I support incorporation, but I have made no bones of the serious concerns I have about the way in which it is being done. Those concerns may be misplaced. The noble and learned Lord the Lord Chancellor has done his level best to reassure me. On the other hand, I may be right--and, if I am, the Bill will have enormous repercussions for the system of self-regulation that we have built up.
I do not say that as a threat, still less some form of blackmail. I say it because of what I see as the logical consequences of the Bill which grafts a statutory superstructure on to our system of self-regulation. As a result the system will no longer be a self-regulatory one. It will for the first time have a basis in statute.
The PCC was set up in 1991, principally to assist ordinary people in resolving their disputes with newspapers. It centres on a code which covers a number of areas in which the public are right to expect high ethical standards of journalism. It was also set up as a system which was designed to be independent: independent of the press; independent of government; and independent of the direction of the courts. It is that independence that both safeguards the interests of the public and upholds the freedom of the press.
Self-regulation is not perfect--and it probably never will be--but it has achieved far more than any of those who set it up in the first place probably ever expected. It has provided a swift dispute resolution procedure which works only because of the voluntary commitment of editors and the amicable way in which the commission's work is conducted. And its code--the first ever set of rules for all journalists--has also gradually raised standards among all newspapers. They are standards of accuracy and speed of correction; respect for individual privacy; safeguards for the vulnerable, such as children or those in hospital; and protection from harassment. At the heart of my concerns is the fear that the way in which the Government are incorporating the convention will change the nature of the system--and not for the better.
This Bill will almost certainly make the PCC a public authority and part of a statutory system. That is bound to have implications, and it will do so because it will put the courts in the driving seat. It is they who will be able to compel the PCC to change its structure and its powers if they deem that it is not acting compatibly with the convention. That possibility is quite simply inconsistent with the principle of self-regulation.
My main worry is what a statutory basis will do to the processes by which self-regulation operates. Those processes, which are voluntary and based on common sense, are in many ways the antithesis of statute and legal supervision.
If the PCC's adjudications on matters of privacy were subject to subsequent action by the courts, my task of seeking to resolve differences, get a public apology where appropriate or if necessary deliver a reprimand to an erring editor would no longer be a practical proposition. This is because voluntary co-operation by editors would open them up to subsequent action in the courts. Material freely volunteered would become part of a legal action. From day one, therefore, the newspapers' approach to any complaint of invasion of privacy would be highly cautious and legalistic--if, indeed they chose to co-operate at all.
There are other problems arising from the legal supervision of the PCC by the courts. First, the PCC has no powers of prior restraint--rightly, in my view. Such powers of prior restraint, exercised by the PCC or by the courts, would have serious implications for the role of a free press in a free society. However, the courts could force it upon us.
There is another problem. It has been suggested that the courts will seek to satisfy themselves that the PCC has "effective remedies" at its disposal, including the power to award compensation. But, again rightly in my view, the PCC has no such power and seeks none. If therefore the courts say, "Yes, the PCC should award fines", we will have to change, but that change will make a mockery of the principle of self-regulation. It is no longer the newspaper industry regulating itself; it is being given direction by the courts.
In those circumstances, the process by which we resolve 90 per cent. of the thousands of complaints we receive will be put into jeopardy. Newspapers and complainants will know that we are the first round in an expensive legal battle that could end up in the High Court with damages and costs. Newspapers will find it impossible to co-operate with us in a friendly fashion and will deal with all complaints through lawyers.
That is not the way it is meant to be. The newspaper industry set up the PCC as an independent body to resolve disputes and gave it a powerful sanction: to demand an editor print a critical adjudication in his newspaper. It set it up to provide what the Master of the Rolls described recently as a robust, common sense system of dealing with complaints. It was never intended to be a legal system.
But if the courts are able to interfere in the way that I have just described, and they will be under a duty to do so, newspapers will have an entirely different system on their hands. The PCC will not be able to resolve disputes because it will no longer work on an amicable and friendly basis. Indeed, how could it when many, particularly the rich and those set on gold-digging, would use it as a first stop on the route to court?
My concern in those circumstances is this: why should the newspaper industry continue to support the PCC? It will be part of a legal system only because the PCC exists. And in turn, the PCC will be unable to carry out the function that it was originally intended to do: to administer a code and to resolve disputes in a non-legalistic way. Therefore, we shall be of no use to ordinary people, for whom we were set up, and no use
I hope that a way will be found to continue the system, despite the changes. But it may be simply too difficult to unscramble self-regulation from law. In my view, the two do not mix. In those circumstances, the choice is not as simple as the one put forward by the noble and learned Lord the Lord Chancellor that the Bill will make a good system even better. The choice is not necessarily between the PCC and a better PCC. It may be a choice between the PCC and no PCC, or at least a seriously diminished one. That would put at risk all aspects of our work, by far the bulk of it, which does not relate to privacy.
My proposal at an earlier stage of the Bill was to exclude the PCC and its activities from the supervision of the courts so that ordinary citizens could continue to complain to us without the necessity and cost of legal representation, which will be the inevitable consequence of newspapers using lawyers as part of a legal system. Nothing in the scheme of things that I propose would stop the rich, the powerful, the corrupt and those with something to hide going over our heads directly to the courts if the courts, encouraged by the Bill, develop the common law in the way that has been suggested. So be it. But at least the vast majority of ordinary citizens will still be able to use our services to resolve complaints without the cost of using the law.
As your Lordships may recall, I had also put forward proposals to deal with the problems which will arise if the rich and powerful are able to take out interlocutory injunctions against newspapers on the grounds of intrusion into privacy. Those problems are acute and the Government have still not indicated to me how they intend to deal with those points, although I suspect that Ministers are indeed aware of the issue. I do not intend to go into great detail about those matters. My views are on the record and the issue continues to give me great anxiety.
I conclude by saying that it may be that I am wrong on some of this. Certainly the full effects of this Bill will not be swiftly felt, probably not until the final years of this Parliament, but I fear--and I repeat that this is not a threat but merely the logical consequence of this legislation--that the PCC will be undermined; the vast majority of ordinary people who do not have large financial resources to take on a newspaper but who do so now through the PCC will be left with nothing but the courts and the very real risks that go with them. I really do not want that to happen.
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