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Lord Cope of Berkeley moved Amendment No. 71:


Page 32, line 11, at end insert--
("( ) In determining whether to make a direction under subsection (3), the court shall consider--
(a) whether it would be in the interests of justice to do so having regard to all the circumstances of the case including, in particular the desirability of avoiding the imposition of a substantial and unreasonable restriction on the reporting of the proceedings;
(b) whether there is good reason to do so, and in assessing whether there is good reason neither the age nor the welfare of the child shall in itself be considered sufficient or good reason to do so, such that it overrides other relevant factors, including the public interest;
(c) whether it would be contrary to the public interest to do so, having particular regard to the special importance of the public interest in freedom of expression; and
(d) the extent to which the matter has already been made available to the public or previously published.").

The noble Lord said: My Lords, my noble friend Lord Astor and I have received representations from the news media and have embodied them in the amendments in the group which carry our names. The Minister indicated that since Committee he has been engaged in discussions with the news media, but I detect that they are not entirely satisfied with the reporting restrictions under Clause 44. I shall be grateful to know how matters stand in that respect.

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Amendments Nos. 76 and 78 have a different provenance. It has been suggested to me by the Law Society of Scotland that a standard approach should be taken by the courts when dealing with a direction under Clause 44(3). A test is already established for courts to apply when they are restricting such directions. The society believes, and I think it has a good point--that it is appropriate that the courts should apply the same test when taking the final step of revoking such a direction. The same arguments apply to Amendment No. 78, which puts the same test into the Bill at a later point in the clause. I beg to move.

Lord Williams of Mostyn: My Lords, Amendments Nos. 71, 73 to 76 and 78 attempt to impose a more stringent test for imposing restrictions under Clause 44. Clause 44 seeks only to replicate Clause 39 of the 1933 Act for criminal cases. We believe that that worked well in its previous guise. The Government's Amendment No. 74 simply mirrors changes already made to Clause 43.

The amendment suggested by the noble Lord would completely change the emphasis of a clause which has protected juveniles since 1933. If there is reason, in the interests of justice or now in the public interest if the restrictions are substantial and unreasonable, the restrictions may be lifted or varied. I know that the amendments are well intentioned, but their consequence would be to downgrade the interests of the welfare of the child in favour of the interests of public clamour for information which we believe should be protected. That is a substantial shift in policy which runs contrary to our stated intention of protecting the most vulnerable members of society when they are involved in court proceedings.

The noble Lord asked about our discussions. They are continuing and there are difficult issues, but the thrust of the amendment would be much more than I could sensibly agree to. I therefore ask the noble Lord to withdraw it.

Lord Cope of Berkeley: My Lords, in the light of the Minister's reply, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Cope of Berkeley moved Amendment No. 72:


Page 32, line 11, at end insert--
("( ) A court shall not exercise its power under subsection (3) above (or revoke or vary an excepting direction) without affording any person affected by any direction, if made, an opportunity to make representations.
In this subsection a person affected by a direction includes a person whose publication might be restricted by such a direction.").

The noble Lord said: My Lords, the amendment is intended to ensure that the press would be enabled to make representations to the court when considering making restrictions. However, Amendment No. 74 has the same effect. Provided that the Minister can confirm that, I shall not press it. I beg to move.

Lord Williams of Mostyn: My Lords, there is no reason why representations cannot be made to the court

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within the legislation as it stands; in other words, that an interested party has the right to ensure that his point of view is adequately communicated.

Lord Cope of Berkeley: My Lords, in that case, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 73 not moved.]

Lord Williams of Mostyn moved Amendment No. 74:


Page 32, line 15, at end insert--
("(4A) The court or an appellate court may also by direction ("an excepting direction") dispense, to any extent specified in the excepting direction, with the restrictions imposed by a direction under subsection (3) if it is satisfied--
(a) that their effect is to impose a substantial and unreasonable restriction on the reporting of the proceedings, and
(b) that it is in the public interest to remove or relax that restriction;
but no excepting direction shall be given under this subsection by reason only of the fact that the proceedings have been determined in any way or have been abandoned.
(4B) When deciding whether to make--
(a) a direction under subsection (3) in relation to a person, or
(b) an excepting direction under subsection (4) or (4A) by virtue of which the restrictions imposed by a direction under subsection (3) would be dispensed with (to any extent) in relation to a person,
the court or (as the case may be) the appellate court shall have regard to the welfare of that person.").

On Question, amendment agreed to.

[Amendments Nos. 75 to 79 not moved.]

Clause 45 [Power to restrict reports about certain adult witnesses in criminal proceedings]:

Lord Cope of Berkeley moved Amendment No. 80:


Page 33, line 12, at end insert ("and
(c) that the administration of justice in the proceedings would otherwise be frustrated or rendered impracticable,").

The noble Lord said: My Lords, Clause 45 takes us away from the issue of those aged under 18 and points us in the direction of vulnerable witnesses, the quality of whose evidence might be affected by the potential publicity given to their evidence. We can all think of such cases and have some sympathy with the thought behind the clause.

Once again, the news media were of the opinion, not entirely unfounded, that the clause went a long way in trying to achieve that objective and left few loopholes within which the public interest could be considered. Although government amendments in the group go some way to deal with the points which were raised with us, it would be useful to know how the Minister's discussions with the news media are progressing and whether we can expect further amendments to the clause. I beg to move.

7 p.m.

Lord Williams of Mostyn: My Lords, the discussions are continuing. Much of it is fine tuning. We are mindful and I hope constantly take account of the need for open justice. That is why subsection (8) already

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requires the court to have regard to the desirability of avoiding a substantial and unreasonable reporting restriction.

Before making a direction, the court must consider that it would be in the interests of justice to do so, given all the circumstances of the case, including the desirability of avoiding such restrictions. Subsection (9) goes on to give protection to the press because it enables the court to dispense with any restrictions to the extent it thinks it necessary if it is satisfied that it is in the interests of justice to do so.

Following my amendment, the court will be able to lift a restriction if it is unnecessary in the interests of justice; and the court is satisfied that the restrictions impose a substantial and unreasonable restriction on reporting; and that it is in the public interest to remove or relax the direction.

I believe that that gives the court a very substantial discretion indeed for the true protection of the public interest, which is not single in its facets. Although the press interest is extremely important, it is not always paramount. Other vulnerable people in our court system have an interest in the matter. I believe that we have the balance about right here. I have not closed my mind. If the media can produce an alternative form of wording which I am convinced is legitimate, my mind is open. But the press has quite substantial protection here if one looks at subsections (8), (9) and my amendment. I ask the noble Lord not to press the amendment.

Lord Cope of Berkeley: My Lords, I am grateful to the Minister for that response. I apologise to your Lordships that I omitted to refer specifically to Amendments Nos. 94 and 95. Those amendments result from suggestions by the Law Society of Scotland that a standard approach should be adopted by the courts in dealing with those directions.

As the Minister said, a test has been established for the courts to apply when determining whether it is appropriate to make a reporting direction. Therefore, it seemed appropriate that the court should apply the same test when taking the step of revoking or varying such a direction. Therefore, the two amendments seek to insert the "interests of justice" test into subsections (10) and (11) in the same way as it exists already in subsection (9). I wonder whether that is necessary or whether the same test would be applied automatically. However, as I said, it has been suggested to me on good legal authority that the amendments may be necessary and I thought it important to put them before your Lordships. Perhaps the Minister will respond to that.


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