The heart of the scheme is in the clause, because it tells the court how to determine applications for the orders. I want to query whether subsection (3)(d) was broad enough. It states that the courts should take into account:
the social, cultural or educational value of the activity or product.
As the Minister mentioned during the debate on clause 133, there is, as far as I can tell, no general public interest test. What we have instead is a kind of implied public interest test, with various elements of such tests taken individually. What strikes me about social, cultural and educational is that it does not include politicalthe function of holding the Government to account: for example, the case that I mentioned earlier about a protestor.
There is public interest in information coming out about the activity or authority surrounding a conviction of a protestor for a criminal offenceas all criminal offences are coveredwhere the offender might have something useful to say to the public about holding the Government to account. The Minister said that there was a great deal of discretion surrounding that, and that those cases might not be proceeded with, but I would prefer to have some assurance in the Bill.
Another issue is raised by subsection (3)(f), which seems to be fine until it gets to the general public. To the extent to which any victim and family of the victim are offended, I can see why that is highly relevant. But how is the court to judge offence to the general public? Is it to do an opinion poll, or simply to read the headlines of the popular newspapers to judge whether the public have been offended?
I have just a bitnot a great dealof sympathy for the hon. Gentlemans comments, which seem to be moving too much towards an undergraduate essay question, rather than looking at what the clause does. It is not for me to respond on behalf of the Government, but I comfort myselfeven if I cannot comfort the hon. Gentlemanby looking at clause 139, which states that
An enforcement authority...may make such an application only with the consent of
the Attorney-General in relation to the High Court in England and Wales, and the Advocate-General in Northern Ireland. I would imagine that those office holders would assess the public interest in relation to subsection (3)(f) when looking at whether the general public are being offended. I cannot imagine that there will be a whimsical application made to the court; it will only be in utterly and obviously offensive cases. I do not imagineI certainly hope notthat an Attorney-General would permit such an application. For example, under the legislation, the lady we mentioned who read out the names on the Cenotaph will be prohibited from selling a pamphlet about her arrest and detention.
That is exactly the kind of example that I am slightly worried about, given that the people the lady would be complaining about would be the Government, who would have discretion over whether to apply for an order.
That is the whole point about having an Attorney-General who is an independent law officer, and not as political as, perhaps, some Attorneys-General have been in the recent past. The scheme is there and I can see that, even in notorious and obviously offensive cases, there will be all sorts of arguments about articles 8 and 10 of the convention, and that is what judges are there to arbitrate. However, I do not share the hon. Gentlemans concerns in relation to the application. I hope that it will be dealt with as a matter of common sense, that those cases that clearly offend will be dealt with and that exploitation orders will be made so that those, such as the lady about whom we spoke and others of a similar nature, will be left alone.
The Government will have to work out whether, in future, there will be demands from tabloid newspapersnot only from television, but from newspapers generally. They make money predominantly on the serialisation of such publications. The book publishers are not making the money; it is the author who makes the most money, up front, from serialisation in the Sunday papers. That is where the money will come from to resist these applications; and the Government will have to apply their minds to picking the right case rather than taking a scattergun approach.
First, I reiterate the fact that no one will be prevented from publishing anything. The hon. and learned Gentleman was wrong when he said that the lady reading out the names on the Cenotaph might be prevented from publishing a pamphlet. She would not be prevented from publishing anything
She would not be prevented from selling it; she would be prevented from making a profit if such a case were to become part of the scheme, which it patently will not.
I shall answer the hon. Member for Cambridge. The hon. and learned Member for Harborough was right to say that enforcement authorities, when deciding whether to apply for a court order, would have to take account of whether there was a public interest in doing so. In turn, an application having been made, the court is to consider the factors. Clause 140(3)(c) states that it must consider:
the extent to which the carrying out of the activity or the supplying of the product is in the public interest.
Clause 140(2)(b) states that the court may
take account of such other matters as it considers relevant.
I think that the Committee will agree that that is pretty comprehensive, and that we need not worry too much about the concerns that have been raised.
I hope that I have convinced the Committee. I beg to move that the clause stand part of the Bill.