Education Bill

Debate between Lord Black of Brentwood and Lord Knight of Weymouth

Wednesday 6th July 2011 Grand Committee

[Lord Black of Brentwood]

My Lords, I support the amendments tabled by my noble friend Lord Phillips and will speak also to Amendment 73M. Just for the sake of the record, I draw attention to the interests I declared earlier. I was very struck by what the noble Baroness, Lady Howarth, said earlier. She said that this clause as currently drafted is unworkable and that unworkable legislation simply brings the law into disrepute. My noble friend has just said that we are not in super-injunction territory, but I fear that, because of the impact of digital media, which I shall talk about in a moment or two, we will be in super-injunction territory at a sort of local level that will cast this legislation into that disrepute.

If we are to have legislation, at least let it be workable. I believe that the amendments tabled by the noble Lord, Lord Phillips, try to do that by importing into new Sections 141F and 141G the concept of the public domain and the public interest. The exclusion of any mention of the public interest in Clause 13, as it stands, is quite remarkable. I cannot think of any other legislation dealing with incursions into the freedom of the press and freedom of expression which do not have a public interest defence. That must be put right.

In my view, these amendments are crucial because the real problem with this clause—the unworkability factor—is that it takes no account of how allegations are spread and the damage that they can do to schools and to innocent teachers in the absence of responsible press reporting. As I said at Second Reading, my concern is that this legislation will simply drive innuendo and rumour underground and new Section 141F(12) will encourage that. Its definition of “publication” is designed to catch the media, which is not at the root of any mischief here, by tying it to material addressed to the public at large. That is the wrong target. The Minister in another place, Nick Gibb, made it clear that this legislation is not intended to capture private conversations, which include e-mail exchanges, texts, Facebook postings, Twitter and all sorts of other mechanisms. That is precisely where allegations and innuendo, which it seems to me that the Government want to be at the root of this legislation, will build up, now that Clause 13 makes it impossible for them to be dealt with in a responsible way in the press, which is constrained by the laws of libel and contempt. In a short space of time, the weight of individual private exchanges may mean that in a small school everyone knows when a teacher has been accused of something, but only the local newspaper will be unable to report it.

[Lord Knight of Weymouth]

The noble Lord makes a really powerful point. I am sure that this legislation was drafted before super-injunctions and before the Twitter activity around certain footballers whose names were disclosed and the mischievous and false rumours spread on Twitter about other celebrities and what they may or may not have been doing. Is that not all the more reason for the Government to look at this again?

[Lord Black of Brentwood]

I could not agree more with the noble Lord. It is a point that I would like to address. Who could imagine what would happen if rumour or innuendo, which turns out to be false, circulates at the school gate about a teacher. There may indeed have been an assault, but perhaps the wrong teacher has been accused in the diaspora of cyberspace, or perhaps, as the noble Baroness said earlier, two teachers have been named in allegations that have been pumping around parents. The only way for teachers to clear their names would be through responsible publication in a local newspaper. That would be in the public interest, and it would reflect the fact that the material is already, in effect, in the public domain because of digital media.

If this law is not to become the same sort of fiasco as the super-injunctions, those defences need to be put in here. I believe that the proposed amendments to this clause will act as a vital pressure gauge and allow accurate and fair reporting where the public interest demands. They will also help some of the massive legal uncertainty that flows from the definition of publication which, by experience, the courts, particularly the magistrates' courts, are not good at dealing with. Often these issues are beyond their competence.

These amendments also mirror exactly the terms of Section 12 of the Human Rights Act, which deals with interference in the European convention right to freedom of expression. That legislation directs a court to have particular regard to the extent to which,

“(i) the material has, or is about to, become available to the public; or

(ii) it is, or would be, in the public interest for the material to be published”.

This legislation, which is a substantial incursion into the convention right, should have exactly the same defences as the Human Rights Act, especially as it is certified to be in accordance with the terms of the Act, and these amendments seek to secure that.