The Defamation Bill is almost the law of the land.
When it is enacted and put into effect, the law of libel in England and Wales will, at a stroke, become less illiberal. It will be harder to bring, and thereby harder to threaten, many of the libel actions which have made this jurisdiction the libel capital of the world.
But there is one outstanding issue, and it is an important one.
Many of the most notorious libel cases have been when companies have sued individuals and media organizations for libel. It often appears that libel is used as a tool of so-called corporate “reputation management”. There are certainly lawyers who promote such a service to corporate clients. It is a valuable revenue stream for many City media lawyers.
Claims such as those brought by McDonalds against the McLibel 2 and by the now discredited British Chiropractic Association against Dr Simon Singh have been perceived as little more than bullying. And such claims are only the most visible manifestation of a more general “libel chill” that which means that things are routinely not published or broadcast which would be in the public interest to publish or broadcast.
The Lords’ welcome amendment
On Tuesday, the House of Commons had the welcome opportunity to make it harder for companies to sue for libel and to threaten to sue for libel. The Bill had returned from the House of Lords with a new amendment which consisted of three valuable elements. The amendment was as follows:
(1) This section applies to an action for defamation brought by—
(a) a body corporate;
(b) other non-natural legal persons trading for profit; or
(c) trade associations representing organisations trading for profit.
(2) The permission of the court must be obtained in order to bring an action to which this section applies.
(3) The court must strike out an application under subsection (2) unless the body corporate can show that the publication of the words or matters complained of has caused, or is likely to cause, substantial financial loss to the claimant.
(4) Non-natural persons performing a public function do not have an action in defamation in relation to a statement concerning that function.
In broad terms, the three main things which this clause did were:
(a) to impose a substantive legal requirement that companies had to show the libel had caused or was likely to cause “substantial financial loss” to the claimant;
(b) to provide the procedural requirement that a court must be satisfied at an early stage that a company can show such actual or potential loss, else the claim would be struck out; and
(c) to provide that companies providing a “public function” are prevented from suing for libel just as public bodies are prevented from doing so.
Of these three elements, the first was the least important. This is the because the Bill – and, to an extent, the law as it stands – already provide tests of seriousness before a libel claim can succeed. In the Bill this is clause 1, and at common law it is known as the Jameel test. They do not do the exact same job, and they are not specific to companies, but their existence means that the requirement of ”substantial financial loss” would not develop the law substantially.
However, the other two elements were radical.
The envisaged strike out would have prevented the onus being on the hapless defendant to make an application to strike out (often at a huge costs risk) a claim brought by a company. Instead it would be for the company at a very early stage to convince the court that such a claim was in respect of substantial financial loss. Individuals would therefore be protected by the High Court from having to face potentially ruinous litigation, if they did not shut up and settle. The strike out provision offered real protection – effectively giving “teeth” to the requirement of seriousness.
The extension of the so-called Derbyshire principle to private companies providing public functions was an important modernising measure. Under the Derbyshire principle, public bodies cannot sue for libel, as a matter of law. The actual case was in respect of a statutory corporation, but the principle has been developed to cover all public bodies, whatever their legal basis. It even now covers political parties. But the principle does not apply to the forms of outsourced services unimaginable in 1989 when the facts of Derbyshire occurred.
This means that companies (often with lucrative payments of taxpayers’ money) performing public functions can scare off critics with the threat of libel proceedings, which simply could not be possible if they were public bodies. This, of course, is unacceptable. Free and frank criticism of the performance of public functions by private companies should be uninhibited for the same reasons criticism of public bodies should be.
And so it was with these important elements included that the Defamation Bill returned to the Commons earlier this week.
It just need the approval of MPs, and after all the three main parties had committed themselves to libel reform in their 2010 manifestos. Indeed, the Liberal Democrats has explicitly promised to make it harder for companies to threaten libel actions.
But then something dreadful occurred.
What happened in the Commons
Sir Edward Garnier, the Conservative MP and libel QC, put forward a motion to strike the Lords’ amendment from the Bill. His speech and reasons can be read in the debate here; in essence, his argument was that defendants had sufficient protections and companies should be protected from being easily defamed.
However, the Labour opposition put Sir Edward’s motion to a vote. The shadow justice minister, the Labour MP and lawyer Sadiq Khan, made a powerful speech, explaining why all the protections of the amendment were important. The senior Conservative MP Sir Peter Bottomley agreed with Khan, as did the Labour backbencher and journalist Paul Farrelly MP. Their speeches and reasons can also be read here.
What was the coalition government’s position?
Would the government support or oppose the Lords’ amendment?
The minister – a Conservative - rose to give a pathetic speech. The amendment would be opposed, even though the minster could not quite explain why.
In response to being asked by the Liberal Democrat Julian Huppert, a great supporter of libel reform, the minister seemed to give a concession:
I would also like to make the point—I can hear that there are concerns about this issue—that I am, however, aware of the strength of feeling that exists on this matter and on whether the Bill should contain a provision requiring non-natural persons trading for profit to show substantial financial loss. As we have made clear at earlier stages in the Bill, in order to satisfy the serious harm test, such bodies are likely in practice to have to show actual or likely financial loss anyway. However, I can confirm that we are prepared to consider actively that aspect of the Lords amendment further, and we will listen carefully to the views expressed in both Houses.
This concession needs to be read carefully.
First, you will see it only is in respect of the least important of the three elements of the Lords’ amendment. There is nothing here about the procedural protection of the court being able to strike out claims. There is also nothing about the extension of the Derbyshire principle to private companies performing public duties. The concession goes only to “substantial financial loss” – a point which, though important, is to a large part covered by clause 1 of the Bill already as well as the Jameel principle.
Second, it is not a commitment to anything in particular. It is in the vaguest possible terms. There will be “active consideration” and the government will “listen carefully”. But it will not commit to anything.
In fact, it is difficult to see how it is a concession.
Faced with this supposed concession, Liberal Democrat MPs were faced with a decision.
They could vote down the motion of Garnier and accept the Lords’ amendment, thus fulfilling their manifesto commitment and, with the support of the Labour party, seek to defeat the Conservatives whipped to support the Minister.
There was nothing actually stopping them.
Or they could vote with the Conservatives to remove the Lords’ amendment in its entirety, against their own manifesto commitment, in return for the barest of concessions on just one element of an amendment that otherwise would be lost.
So what did the Liberal Democrat MPs do?
The Liberal Democrat MPs voted against the Lords’ amendment which would have made it harder for companies to sue for libel.
What happens next?
The Defamation Bill now returns to the House of Lords. This will probably be next week.
The government has not stated the extent and form of their supposed concession. They have promised to consider and listen, but nothing more.
I understand the Labour party is seeking to place a new amendment before the Lords, reviving the elements of the Lords’ amendment in full. They will not force the issue to the extent that the Bill as a whole is at any risk; but they may make sure there is another vote.
If the Lords go with any Labour amendment rather than settling for whatever concession the government comes up with, then there will again be a House of Commons vote.
Liberal Democrat MPs may get to vote again.
Of course, there is party politics at play here. The Labour party was never this liberal in office. It is easy to pose as a progressive in opposition.
But the Lords’ amendment that was lost this week was more than a mere political toy.
It actually would have made it harder for companies to misuse libel, and it would have made it libel-safe to criticise private companies in respect of their performance of public functions.
In short, it is an important issue and it is good that the Labour party are forcing it.
It is now up to the government to see what more they can do with their concession.
But whatever it is, it will not be as far-reaching as the Lords’ amendment which was lost, and which could have been passed had the Liberal Democrats simply voted differently.
Valuable potential protections against corporate libel claimants were thrown away this week, just because the Liberal Democrats nodded along with a weak concession and voted against their own explicit manifesto promise.
Over at the Observer, Nick Cohen has done a brilliant piece on the BBC’s witlessness over what to do with Ding Dong The Witch Is Dead.
The silencing of the Munchkins must rank as one of the most inept acts of censorship Britain has seen.
As for the BBC, what is there left to say about it? Can it show The Wizard of Oz again? Can it only run the film after the 9pm watershed? Must the announcer warn: “This children’s story contains Munchkin choruses that some viewers may find offensive”?
Nick is, of course, completely right.
In and of itself, there is nothing offensive or unlawful about the Munchkins’ happy chorus: just watch and listen:
So unlike a song which explicitly insults or otherwise derides Thatcher – for example Morrissey’s Margaret on the Guillotine - it is only the interpretation which is being placed upon the Munchkins’ song which can render it offensive to (some of) her supporters, and not the song itself.
It has been a strange week or so for those who are neither Thatcherite nor Anti-Thatcherite.
Twitter has been a battleground for a historical re-enactment of 1980s debates. One side seems angry in part because they never actually defeated her, and the other side seem defensive as it was actually they who removed the only Tory leader since 1970 to win an outright majority for a full parliamentary term.
In all this, getting Ding Dong The Witch Is Dead to number one emerged as a form of protest and celebration for Anti-Thatcherites.
This may well be distasteful; but there is something in this which must be satisfying for (some) Thatcherites.
It is a form of protest and celebration where the royalties go to some United States conglomerate.
And it is a form of protest and celebration by which Anti-Thatcherites indulge in a mass self-identification as Munchkins.
One rather suspects the ghost of Thatcher would find this amusing.
The ghost of Thatcher, however, would also be perhaps disappointed in how soft (some of) her supporters have become in contending that the Munchkin song is actually offensive.
They should harden up, one can imagine her spectre muttering, there are more important fights.
As for the BBC, their response should have been to do nothing different from what they normally would do; the record should have been treated just as another number one.
They should have neither drawn attention to it as a protest or celebration nor edited or censored it.
And by treating it as something which did not warrant any exceptional action, the BBC would have made a silent and effective point about those – like Thatcher but also many others – who seek to interfere with the media for political reasons.
Should companies be able to sue for libel?
The recently launched Lord Lester libel reform bill includes a provision that companies would have to show substantial financial loss before being able to sue.
The House of Commons select committee for culture, media and sport has also called for fundamental reform of libel law in respect of corporate reputation, while many Australian states have limited actions in libel to companies with fewer than 10 employees.
But to the conventionally minded English lawyer there is no question that companies should be able to sue for libel. After all, companies are “legal persons” – and in English law, personality goes a very long way.
The view is that if “natural persons” can sue for libel then so can companies.
The English courts have nevertheless progressively limited the scope of corporate actions in defamation.
The current position is that a company does not have quite as general a right to sue for libel as a natural person does.
It can sue only in respect of its trading reputation and, not having feelings, its entitlement to any damages will usually be lower compared with a human claimant.
But should companies be able to sue for defamation at all?
In the groundbreaking Derbyshire case of 1993, the House of Lords held that a public corporation could not maintain an action for libel.
In 1998 the High Court also held that a political party could not sue for libel.
In neither case was the undoubted fact that a public corporation or a political party had a reputation taken to be determinative.
Instead, the public interest in uninhibited public criticism was deemed more important. By removing the right of a public corporation or a political party to sue for libel, the ability of such entities to threaten to sue is also taken away.
And this is important, for it is the threats to sue which cause libel chill, rather than the actions themselves.
Companies have reputations, and of course in a commercial environment these reputations are important.
But companies already have a wide range of legal means to protect their brand and to prevent unfair competition.
In terms of intellectual property, companies can and do use the law of trade marks, passing off and copyright to prevent inappropriate and damaging attacks on its brand and its products.
There is also the right to sue for malicious falsehoods.
And since the introduction in 2008 of the business protection from misleading marketing regulations, companies also have a range of protections from other commercial actors making misleading statements, especially in comparative and similar targeted advertising.
It is rather difficult to see what legitimate purpose the right of a company to sue and – crucially – threaten to sue for libel now has in our society.
A brief look at cases where companies have sued individuals for libel – the McLibel litigation, British Chiropractic Association v Dr Simon Singh, General Electric Healthcare v Professor Henrik Thomsen and the still ongoing case of NMT v Dr Peter Wilmshurst – suggests that whatever the general arguments for allowing companies to sue for libel, it is a legal weapon that can be used in unattractive ways and against the public interest.
There is a strong chance that there will be primary legislation on libel in the next couple of years.
This is a good moment to ask questions about who should be able to use – and threaten to use – this powerful and inhibiting area of law in a modern democratic society.
Given the range of other legal means open to companies to protect their commercial reputations, I think the right of companies to sue for libel should be severely limited, if not abolished altogether.
The public interest requires nothing less.
Margaret Thatcher is dead.
There are already celebrations, and there are already those taking offence at these celebrations (as if much of England did not already celebrate burning the effigy of another controversial figure every 5th of November).
Of course, it is not odd that there are celebrations at the death of any divisive political figures; it is surprising that there are not more.
And already there are paradoxes, if not contradictions. The Telegraph, which routinely invokes freedom of expression for its journalism and blogging, and in defiance of “Leveson”, closed down comments on its Thatcher articles as they were “vile”. In contrast, some on the Left, who last week complained in absolute terms of Osborne and Cameron making political points out of death, were jubilant in the death of Thatcher. One’s response to the death of Thatcher seemed to be the general exception to whatever rules which could otherwise apply.
However, in terms of policy, the record of Thatcher was a lot more mixed than either admirers or haters will ever admit.
For example: the Police and Criminal Evidence Act of 1984 (PACE) is, in practical terms, the most important civil liberties statute of modern times. It may be that, say, the Human Rights Act of 1998 has more overall significance; but it is PACE which on an everyday-basis limits the excesses of police power, and not any heady invocation of human rights.
Similarly, it was under Thatcher that the Single European Act was signed, the most momentous of all transfers of powers from the United Kingdom to what has now become the European Union. And, for anyone sentimental about “national sovereignty”, it was Thatcher who nodded through the extensive placement on British soil of US nuclear weaponry, the possible deployment of which was outside the practical control of Her Majesty’s government.
Thatcher also consistently went against her own Tory hardliners: she resolved the Rhodesia/Zimbabwe issue (in a fashion); she supported the Anglo-Irish Agreement; and she promoted a constructive dialogue with Gorbachev, when the US hawks warned otherwise.
All this, and her government also defeated a Fascist junta – something not many prime ministers can claim.
This is not to say her government was a good thing. But it is to say that (at least until 1988 and the loss of Whitelaw from the cabinet) her government was far more pragmatic than ideological. Even the fights she chose to pick – for instance, against a Scargill-led NUM – were done in a tactical manner.
After 1988, the arrogance of a third election victory set in. We were told a “community charge” was not a poll tax. The later Lawson budgets promoted a myth of economic progress which flatly ignored the reality of a structurally weak economy cross-subsided by North Sea oil. A now-forgotten nurses’ strike was used by a hapless Tory health minister to show the merits of confrontation for its own sake. The Thatcher government became self-consciously “Thatcherite” and so soon lost its power.
There were always parts of “Thatcherism” which did not quite add up. The emphasis on social mobility by self-reliance could encourage particular individuals (of whom I was one, going from a council estate and comprehensive school to Oxford and the Bar); but it was hardly a universal panacea. Not everyone could “get on a bike”.
However, it would appear few of Thatcher’s actual policies were ever reversed, even when those who detested her had large overall majorities in parliament. No politician has dared repeal the substance of her trade union policy. There has been no return of exchange controls.
And as regards “privatisation”, her mere asset sales to shareholders were nothing compared to the Heath-Robinson “private finance initiatives” of both the Tory and Labour governments which followed. Almost all of what can be called “privatisation” (and which will cost taxpayers a fortune for decades to come) was done by Tory and Labour politicians after 1990 on a scale unimaginable by Thatcher, and in a radically different way. And it still continues.
The policies of Thatcher were in part a continuation of the Labour government beforehand (especially the post-1976 economic policy) and they were in turn largely continued by Major, Blair and Brown afterwards. Her governments were generally pragmatic until around 1988. In some ways, though not every way, she did what any prime minister of the 1980s would have done.
But on her death today, the hate felt towards her was stark in its expression. As I type this, many people are having parties to celebrate her death, some 23 years after she had any control over policy.
Historians will one day explain how Thatcher was just another pragmatic politician, even with her strident and polarising rhetoric; but they will need to explain the sheer hate too.
On the face of it, the sentence imposed on Mick Philpott today seemed lenient.
He was found guilty, along with his wife and another, of starting a fire which killed six children.
In those circumstances, the reported fifteen years appeared inappropriate: it would mean little over two years for each dead child.
However, Philpott was not found guilty of murdering the children.
Had he done so, he would have received a sentence at least as heavy as the one imposed today, and possibly one significantly higher.
But he was instead found guilty of manslaughter, and that was an important difference.
There are many types of manslaughter in English law.
One thing they have in common is that the cuplrit responsible for the death did not have sufficient “mens rea” (or culpable state of mind) for the charge of murder.
Philpott got the maximum sentence available for manslaughter: the so-called “life” sentence.
As such, there was not a more onerous sentence which an English court could impose.
However, “life” does not necessarily mean life in terms of incarceration, though it can do. So a judge imposing any life sentence also has to set a minimum period of imprisonment which must be served before there is any posible question of parole. (Although the prisoner may not then get parole once that period has ended.)
In the Philpott case, the judge held that the “determinative” sentence (the sentence which would have been served by Philpott had she not imposed a life sentence) would have been thirty years.
She then added:
I am required by Parliament to halve that to reflect that were this a determinate sentence you would serve only half. The minimum period you must therefore serve before you are considered for parole is one of 15 years.
The “minimum” of fifteen years needs thereby to be seen in context: a life sentence was imposed, and had a life sentence not been imposed then a sentence of thirty years would have been. The difference is that with a life sentence, any parole period will last for the rest of his life, whilst any parole with a thirty year sentence ends at with that thirtieth year.
But there is another context.
The sentence of life with a minimum of fifteen years would appear to be one of the heaviest sentences ever imposed for a conviction for manslaughter.
The only other examples which I and others could find today are of the cannibal serial killer Peter Bryan (life with a minimum of fifteen years on appeal) and Mohamed Boudjenane (life with a minimum of sixteen years on a re-trial after the quashing of a murder conviction). (Hat tips Lyndon Harris and Simon Taylor.)
Both of these sentences were for a different type of manslaughter, those which are committed with diminished responsibility.
The case of Philpott is different from that of Bryan or Boudjenane: there was no “diminished responsibility” which prevented a murder conviction – the lack of mens rea for murder here was not because of any mental illness.
Accordingly, the sentence imposed on Philpott appears to be the heaviest ever imposed for manslaughter, other than in cases of diminished responsibility.
A straight thirty year sentence for Philpott would have sounded harsher; but he would only have to serve half before release.
A life sentence with a minimum of fifteen years instead means only the possibility of parole after fifteen years. It is a paradox but life with a minimum of fifteen years is harsher than a straight sentence of thirty years.
The irony is that had the judge imposed a thirty year sentence, she may well have avoided much of the criticism her sentencing received today.
A week ago primary school teacher Lucy Meadows was found dead at her home.
Over the last week there has been a great deal of interest in the case. There has been a vigil outside a national newspaper office; there are petitions calling for an individual journalist to be sacked; there is the prospect of a House of Commons debate; and various groups have claimed the tragedy supports their objectives.
In all this, there is little concrete information. This post sets out, as of today, what we know and – more importantly – what we don’t know about what happened to Lucy Meadows before she died. This post deals with these points in broadly chronological order, and as this is not a “blame” piece, I have anonymised the names of all but Lucy Meadows.
The full sources and other links for what follows are here.
What happened with the school
We know Lucy Meadows was a primary teacher at a certain school and that she was transitioning from male to female. We know she had the support of her headteacher and of the diocese. It appears she was popular and highly regarded.
We know that the headteacher put thought into how to communicate this news to the school, and it appears the headteacher decided to do this by means of a low-key announcement in the “staff changes” part of the school newsletter.
The local press
We know that the local press covered the story before the national press were aware of it. We know that the local press – one paper in particular – were able to get a quote (and a photograph) of a concerned parent. We know that claims were made that other parents were concerned, but there is no explicit evidence of this.
We do not know what either Lucy Meadows or the School did about this local news coverage, other than to provide statements. Lucy Meadows and her headteacher released statements asking for privacy to be respected.
(26/3/13 ADDED: See Dan Waddell’s two detailed posts http://dan-waddell.blogspot.co.uk/2013/03/here-there-be-monstering.html and http://dan-waddell.blogspot.co.uk/2013/03/here-there-be-monstering-follow-up.html on how the news story went from local to national level.)
The national press
The national press picked up the story soon after it was published in the local press. We know that the national press sought “before” and “after” pics of Lucy but had to settle for unauthorised Facebook pics and a child’s drawing. We know that the national press took the decision to publish a story in December 2012 based on the adverse reactions of the parents. However, there were still no more named concerned parents.
Once the story was covered in at least two national tabloids as a news story, we know that a controversial columnist used the information acquired by others for a critical main piece in his weekly column. We do not know what Lucy Meadows thought of this column, as it is not mentioned in any of the emails which have so far been published.
The complaints of harassment and press intrusion
We know that Lucy Meadows complained of the press intrusion in emails sent to another trans person. These emails have not been published in full. In these emails we are told that Lucy Meadows was concerned at the presence of photographers at her school and the attempts to obtain private information (and pictures). We are also told that the press seemed uninterested in the parents who wanted to say positive things.
Lucy Meadows also wrote that she had to significantly change her routine to avoid the press attention, arriving at school early and leaving late.
We do not know whether this is correct (though there is no reason to doubt it). We also do not know whether the press which were present were freelance or were staff journalists/photographers.
We know that Lucy Meadows submitted a PCC complaint in January 2013 and it is understood that there were others. We know that her complaint was “resolved” but we do not know on what basis.
We know that the columnist’s piece was edited on-line on or before 12 March 2013 and that it appears text and photos were removed. We do not have a reason for that edit.
The death of Lucy Meadows
We do not know the cause of death, though very early reports said it was suicide. We do not know the relevant circumstances if it was suicide, and the Samaritans caution that no suicide should attributable to one factor.
We know that the police do not believe there were suspicious circumstances and that the death was unexpected. We know that a file has been passed to the coroner and that the coroner is expected to have an inquest.
We do not know what, if any, relationship there was between the press coverage/conduct and her death. And even if there was a relationship, we do not know what aspect of the press coverage/conduct is of most importance. In particular, we do not have any evidence that the columnist’s piece was directly relevant.
The significance of the death
We do not know the significance, if any, of the death. We do not know whether it supports “press reform” or is irrelevant to it. We do not know whether it is linked to transphobia or to any other cultural point. We do not know whether it justifies the sacking of any reporter, photographer, picture desk editor, or news editor.
We simply do not know.
But what we do know is that the press coverage/conduct in December was personally unpleasant to Lucy Meadows and that she complained of it both to a contact and the PCC, and that it appears that the press coverage/conduct was in breach of her own stated preference for privacy.
And we are also entitled to form a view as to whether the press coverage/conduct in December was humane and decent; and in my personal view, it plainly was not. In particular, what one can only call a “monstering” was wrong on its own terms, regardless of what happened afterwards.
Comments are pre-moderated. No purely anonymous comments will be published; always use a name for ease of reference by other commenters. Other comments published at my absolute discretion.
Lucy Meadows is dead.
She was a popular teacher at a primary school. But on Tuesday, police and an ambulance were called to her home. She was found dead. Her death is not being treated as suspicious. Already various people have said she took her own life. Helen Belcher reports that friends said that Lucy Meadows had spoke of suicide. The police told me today a file will be passed to the coroner.
At the moment we do not know how she died and, if it was the case that she took her own life, what the relveant circumstances were.
But what we do know is that Lucy Meadows was monstered by tabloid newspapers when news emerged that she was transitioning from male to female.
Suddenly she became not only a figure in sensational news reporting, but someone ridiculed and criticised by a national newspaper columnist. There was, of course, no public interest in any of this.
Such “monster” pieces are easy for tabloids to produce (especially if they get “before” and “after” photos), and the powerless figures caught up – victims – are unlikely ever to fight back. In a way, the tabloids treat trans people the way they would treat anyone, if they could get away with it.
In December 2011, the group TransmediaWatch made a submission to the Leveson Inquiry (I helped with some of the drafting). It documents the monstering of trans people by tabloids. Anyone with an interest in media matters should read it. The stories are horrific.
A person in transition is likely to be going through intense psychological and emotional changes: the worst thing for them is the humiliation of a sudden tabloid monstering (see more on this here). They are also having the most personal surgery one can perhaps imagine; but no other comparable group of people having surgery – say women having a mastectomy or hysterectomy – would feature in such sensationalist news reporting. Instead such intimate matters are rightly regarded as nobody’s business but that of the person involved.
And this should be the case for trans people. It is a basic privacy matter. The fact that someone is in transtion does not create any automatic public interest in their national media exposure. In fact, their situation calls for a genuine respect for their privacy and autonomy. The monstering of Lucy Meadows and other trans people is wrong on its own terms, regardless of any consequences.
Such monstering pieces really must now come to an end.
Post script – I have created a resource page here.
I also did an interview for Radio 4 on the above – you can hear it here at 25:20.
Comments are pre-moderated. No purely anonymous comments will be published; always use a name for ease of reference by other commenters. Other comments published at my absolute discretion.
Over at the Spectator my friend Nick Cohen has blogged about the disclosure of evidence by the Sunday Times in respect of the prosecutions of Chris Huhne and Vicky Pryce.
Nick in turn links to a statement from the Crown Prosecution Service about this disclosure. There are two points of particular interest in that statement.
First, it would appear that the the CPS regarded that evidence as determinative in bringing the prosecutions. In other words, had the evidence not been provided, the prosecutions of Huhne and Pryce would never have happened.
Second, the CPS tells us that the Sunday Times dropped an appeal against the court order obliging the disclosure. The newspaper instead complied with the order without putting it to challenge before a more senior court.
Of course, a newspaper should not be above the law. Court orders are there to be complied with; that is part of what the “Rule of Law” means.
For example, the Guardian once complied with a court order which meant their source was revealed to be the civil servant Sarah Tisdall, who was then prosecuted and convicted. But the Guardian fought this to the House of Lords before they complied.
In contrast, the Sunday Times did not appeal the order which appears to have led to the convictions of Huhne and Pryce. It also did not judicially review any relevant decision either. We do not know why: perhaps the legal advice was unfavourable, or that they did not wish to air certain matters in open court. However, unlike the Guardian in the Tisdall case, the Sunday Times would have had the benefit of the Human Rights Act and Article 10 of the European Convention. How would the appeal courts have dealt with such an appeal? We will never know.
As we do not know why the Sunday Times neither appealed or seek to judicially review the decision to grant the order, we cannot necessarily assume the worst. But it is a cause for concern that the Sunday Times did not appeal an order which appears to have led directly to the conviction of a source. A newspaper surely should protect its sources to the fullest extent possible. In not appealing, the Sunday Times appears not to have done this.
And whatever one’s view of the conduct of the relevant journalist in all this, it is highly unlikely that the decision not to challenge the court order was her decision. The litigation decisions of newspapers are made by senior editors and in-house lawyers: so if Isabel Oakeshott is culpable in any way (and views do differ), it almost certain that she was not responsible for the Sunday Times not appealing the court order.
But someone did make that decision; and it would be interesting to have their explanation.
So the Human Rights Act and the European Court of Human Rights are in the news.
One Tory Minister wants to repeal the Act, and another wants us to withdraw from the Court. The extent to which either of these propositions make sense is expertly set out by Adam Wagner, perhaps the UK’s leading legal blogger.
The proposals are depressing on two levels.
First, it is clear that such calls are gesture politics. The Tories have lost a by-election and feel the need to play to the audience. There is no real chance that the Act will be repealed or the UK withdraw from Strasbourg.
Second, it represents a failure by those in favour of human rights law. It is now over twelve years since the Act took effect, but still uninformed and misleading statements about human rights law are made by those who should know better and circulated by those who could not care less.
But since 2000, human rights have become part of the mainstream in litigation. Even Associated Newspapers has sought to rely on its Article 10 right to free expression under the ECHR (see paragraphs 33 and 36 here). But the frequent use of human rights law in the courts has not been matched by a more informed public debate.
Indeed, one of the shortest conversations one can have in British politics is when a critic of human rights is asked to be specific as to which rights under the ECHR and provisions of the Human Rights Act should be abandoned. It is almost as “human rights” is a hobgoblin with no more substance than is necessary to scare us.
In fact, the Human Rights Act is an instrument which should be commended by those who want the UK courts to decide things instead of Strasbourg. The Act’s existence has made it rare for applicants to go to the European Court of Human Rights, and the case law developed by UK judges in UK courts since 2000 means that Strasbourg jurisprudence has become less relevant. The Human Rights Acts also provides that UK judges cannot disapply primary legislation on human rights grounds, and so the supremacy of parliament is maintained.
And as for the convention rights themselves, which ones should we not have as protections? As the late Lord Bingham said in a lecture which should be read in full by anyone interested in the human rights debate:
The rights protected by the Convention and the Act deserve to be protected because they are, as I would suggest, the basic and fundamental rights which everyone in this country ought to enjoy simply by virtue of their existence as a human being.
Let me briefly remind you of the protected rights, some of which I have already mentioned.The right to life.The right not to be tortured or subjected to inhuman or degrading treatment or punishment. The right not to be enslaved.The right to liberty and security of the person.The right to a fair trial.The right not to be retrospectively penalised.The right to respect for private and family life.Freedom of thought,conscience and religion. Freedom of expression.Freedom of assembly and association.The right to marry.The right not to be discriminated against in the enjoyment of those rights.The right not to have our property taken away except in the public interest and with compensation.The right of fair access to the country’s educational system.The right to free elections.
Which of these rights, I ask, would we wish to discard? Are any of them trivial, superfluous, unnecessary? Are any them un-British?There may be those who would like to live in a country where these rights are not protected, but I am not of their number.Human rights are not, however, protected for the likes of people like me – or most of you. They are protected for the benefit above all of society’s outcasts, thosewho need legal protection because they have no other voice – the prisoners, the mentally ill, the gipsies, the homosexuals, the immigrants, the asylum-seekers, those who are at any time the subject of public obloquy.
Here Lord Bingham nails it: just which of these rights do we really wish to discard?