Examination of Witnesses (Question Numbers
500-519)
MR PAUL
DACRE AND
MR ROBIN
ESSER
23 APRIL 2009
Q500 Paul Farrelly: In terms of access
to justice for people, in your experience, and we will come on
to the McCanns later though I do not want to use them as a typical
example, would you perhaps characterise the cherry-picking that
goes on by lawyers as not "No Win, No Fee" but really
"Always Win, Double The Fee"?
Mr Dacre: I think I probably would.
I think you will find that most of the CFA cases they take on
they win. What concerns me is they are increasingly used by the
celebrity class and the rich—I know about the NHS and all
that and it is a very worrying matter—so in that sense I
think they are cherry-picking their clients, although they get
a lot of publicity which possibly encourages more clients to come
to them, and they are in a position where they only take on cases
they think are going to win, so the real people who have a case
on the cusp where they might not win I suspect do not get much
of a hearing.
Q501 Paul Farrelly: Have you had
experience of the likes of Carter Ruck and Schillings actually
touting for business among people who might not realise that what
was printed in the United Kingdom was actually there and saying:
"Hey, we can win something for you here"?
Mr Dacre: The honest answer is
I do not know. I am astonished if they are not touting for business.
The number of letters that we get in to the Daily Mail
from Carter Ruck and Schillings must be depleting the forestation
of the globe quite dramatically. They are rapacious, greedy, unscrupulous
in the methods they use. I would be astonished if they were not
ambulance-chasing rich clients and saying, "We saw that picture
of you, do you realise we can get you X sum of money for that"—
Q502 Paul Farrelly: And overseas
clients as well?
Mr Dacre: It is a massive hypocrisy
because often those are celebrity clients who are implicitly at
work with paparazzi photographers to keep their pictures in the
public eye which, of course, makes them more and more money.
Q503 Rosemary McKenna: The other
thing that seems to exercise you greatly in your speech is what
you call the introduction of "a privacy law by the back door",
but is it not the case that the judges are, in fact, applying
the law as it stands through the introduction of the Human Rights
Act?
Mr Dacre: Again, if I can put
some context on this, the Human Rights Act/CFA was a very well-intentioned
act; who could deny human rights to anybody. When it is combined
with CFA, again I think it has a considerable deleterious effect
on freedom of the press—again, interestingly, one that is
exploited by the rich and celebrity classes. You know, and forgive
me if I am telling you how to suck eggs, that the Human Rights
Convention was devised in 1950 and came into British legislation
in 1998, and it is very interesting that before 1998 it was never,
ever used as an attempt to suppress the press or used in privacy
cases, this despite the fact that I suspect in the bad days of
the '80s there were far more egregious offences against privacy
in a much less well-behaved newspaper industry. It was never used.
In 1998 it came into legislation, again pounced upon by lawyers
who have since made a huge industry and a lot of money out of
it. The real problem of the Human Rights Act is that it gives
powers to judges to interpret the European Convention on Human
Rights—sitting in Strasbourg, of course, because it was
created in Strasbourg—rather than to enact laws created
by the Westminster Parliament. The problem also that we have found
is that British judges, and there are very few judges that rule
in this area, give more weight to privacy than to freedom of expression.
Now, they may be doing that because they have no alternative under
the case law created by the Strasbourg Court, but I would like
to come on to that in a minute. Whatever, there are huge implications
for society: we are now repeatedly losing cases in court which
have traditionally been defined as areas of press freedom. Not
only am I concerned about that; the Justice Minister Jack Straw
has said he is concerned about it. When he unveiled the Human
Rights Act he declared at that stage that it would have no effect
on press freedom. I think he concedes now that it does and I think
he is looking at it. The Opposition, of course, are very much
concerned about it. Both the Justice Minister and the Tories have
indicated they would like to see some amendments, they would like
to see—I do not know, some Bill of Rights giving more rights
to recognising the need for newspapers to have freedom of expression.
This brings us to the Court itself. I do not know whether any
of you read it but Lord Hoffmann, the second most senior judge
in Britain, recently made a brilliant speech. It described how
federal law was now being imposed on United Kingdom law. He criticised
the lack of expertise of the members of the European Court of
Human Rights. You will be aware that very few of them are judges,
there are quite a few academics who quite often have very little
expertise. He highlighted the difference in local traditions,
legally and morally, of those 48 different Member States; he criticised
their self-aggrandisement, their aggrandising tactics and their
activisms. He pointed out that minority nations have far too much
power in the court, pointing out that four of the countries had
a combined population of less than the borough of Islington yet,
of course, an equal vote in deciding matters of huge issue to
the press; and generally that a lot of those countries came from
totally different traditions. It is very interesting. In one of
their most important decisions where they found against newspapers
carrying photographs of Princess Caroline of Monaco, that the
Slovenian judge said "We must move away from this American
inspired fetish with press freedom", and that was one of
his reasons for finding against the newspaper, and very quickly
I would just like to read it because I think it does summarise
this, and I did not include it in my speech but it was something
I had: "By passing the Human Rights Act Parliament surrendered
legal sovereignty over any case that anyone claims involves a
human right, such as privacy, to the ultimate decision of a European
Court staffed by judges, appointed by the very many countries,
many of them former Communist regimes, which are nowadays signatories
to the Convention. The experience of such judges and the societies
in which they have been brought up are in many cases radically
different from the experiences of our own judges and the norms
of our own society, yet our own judges are now duty bound by law
loyally to follow the decisions of the Strasbourg Court, many
of whose members come from countries that have no traditions of
respecting the right to free speech, and others of whom come from
countries whose traditions are far more repressive than our own.
The upshot is that British notions of where the proper boundaries
lie between privacy rights and the right of the public to be informed
about the weaknesses and failings of our leaders and other public
men and women are gradually being usurped by different and foreign
ideas which, if left unchecked, risk the creeping and insidious
destruction of ancient and hard won freedoms ..."—
Q504 Rosemary McKenna: But actually
I asked you a question about a British judge, not about foreign
judges.
Mr Dacre: But the whole point,
with the greatest respect, is that British judges have to respond
to the decisions being made by this Court. It is absolutely vital.
Q505 Rosemary McKenna: But I do not
think it is necessary to rehearse exactly your views of those
courts. I want you to speak about the judge in particular that
you mentioned—
Mr Dacre: I will come to that,
if I may.
Q506 Rosemary McKenna: —but
you are now talking about other countries and regimes that you
do not agree with.
Mr Dacre: That is absolute nonsense—
Q507 Rosemary McKenna: But that is
what you are talking about.
Mr Dacre: With the greatest respect
the judges I am talking about are British judges who have to refer
to the jurisprudence created by this Court, and therefore it is
vital you understand the nature and make-up of that Court. Your
rights as MPs in Westminster ruling on this are being usurped.
Q508 Rosemary McKenna: That is your
view—
Mr Dacre: It is not my view; it
is Lord Hoffmann's view.
Q509 Rosemary McKenna: But would
you like to refer to the fact that you have said it is "a
privacy law by the back door", which was the question I asked?
Mr Dacre: I will come to that,
if I may. I am afraid you have thrown me, give me a minute. This
brings me to the judge you are referring to, my criticism of Mr
Justice Eady. That is what you are referring to, is it not?
Q510 Rosemary McKenna: Yes.
Mr Dacre: Judge Eady is clearly
a brilliant judge but what mystifies many editors is why one judge
seemingly is presiding over almost all the very controversial
privacy cases. Judge Eady clearly has a background; we know where
he comes from; he was a member of the Calcutt Commission which
looked into abuses of press freedom in the late `80s when, in
my view, newspapers did behave badly and have since cleaned up
their act considerably. At that stage Judge Eady wanted to impose
a privacy law on the British press and, indeed, drafted one for
Calcutt. Wiser and different heads prevailed and it never went
ahead. There is a feeling you need to know amongst many newspaper
editors, particularly at the popular newspaper end which are read
by the great majority of the British people, that Judge Eady has
an animus against the popular press. Certainly I have seen speeches
he has given to private gatherings of lawyers in which there are
sneering references to tabloids, papers again which are read by
the majority of people; withering attacks on individual journalists,
et cetera. In my speech I described his judgments as "arrogant"
and "amoral". I am aware those are strong words—they
are not personal, I am talking about his judgments—but I
used those words because I felt passionately that he was adjudicating
in matters that Parliament should be deciding, and the fact he
was not taking on board Parliament, which represents the public,
has huge implications for British society.
Q511 Rosemary McKenna: Then, if Parliament
should decide, would you support a statutory privacy law brought
in by Parliament?
Mr Dacre: Before I answer that,
you gave Mr Mosley a huge length of time to put his position on
these matters. Could I deal with that before I answer in that
respect? As I said, "arrogant" and "amoral"—
Q512 Rosemary McKenna: So you are
suggesting that I am treating you differently than we treated
Mr Mosley?
Mr Dacre: Not at all, but you
did give him a great deal of time -
Rosemary McKenna: I think you have had
quite a lot of time too, and you have the rest of the morning.
Q513 Chairman: We are quite happy
to continue for as long as you would like to, so please go ahead.
Mr Dacre: Thank you very much,
Chairman.
Q514 Chairman: We will want to come
back and press you on points.
Mr Dacre: Please, I would welcome
that. Yes, I accused him of being arrogant and immoral, arrogant
because he was setting himself above Parliament, and amoral because
he was not setting his decisions in a British legal and moral
context, and two cases illustrate this and I am sorry if I am
being too prolix for Ms McKenna but I do think it is absolutely
vital that you understand my position, as I say you did give Mr
Mosley a lot of space. Two years ago Mr Justice Eady ruled that
a cuckolded husband could not sell his story to the press about
a married man, a wealthy sporting celebrity who had seduced the
man's wife. The judge was worried about the effect of the revelations
on the celebrity's own wife, and the Judge, in an unashamed reversal
of centuries of moral and social thinking placed the rights of
the adulterer above society's age-old belief that adultery should
be condemned. Recently, of course, Mr Justice Eady effectively
ruled that it is perfectly accepted, and this is where we come
to Mr Mosley, for the multi millionaire head of a multi-million
pound sport that is followed by countless young people to pay
five women £2,500 to take part in acts of sexual perversion.
The judge found that Mr Mosley had not engaged in a "sick
Nazi orgy", as the News of the World contested, even
though the participants were dressed in military-style uniforms,
Mr Mosley was issuing commands in German while one prostitute
pretended to pick lice from his hair—
Q515 Chairman: Can I just interrupt
you for a second? Whilst obviously I am perfectly keen that you
should have the opportunity to make points, we have all had copies
of your speech and read it, so to that extent you do not need
to repeat what you said in the speech.
Mr Dacre: Fair enough. I had not
realised that you followed my words so punctiliously. Well, I
would just like to say one thing. Mr Mosley, when he gave evidence
to this Committee, with the greatest respect to you, I think a
lot of us were very surprised at the soft time you gave him. For
Max Mosley to present himself as a knight in shining armour proclaiming
sanctimonious and aggrieved self-righteousness in his crusade
to clean up the press is an almost surreal conversion of the moral
values of normal civilised society. Indeed, for Mr Mosley to crusade
against the media is a bit like being the Yorkshire Ripper campaigning
against men who batter women. Let me explain why I feel so strongly
about this case, and this was not in my speech. There is a growing
belief centred on the Mosley case that what people do in their
private lives is up to them and nothing to do with newspapers.
Fair enough. If Mr Mosley wishes to persuade Mrs Mosley in the
privacy of their bedroom to dress up in military uniform, give
her instructions in German and whack him on the backside—fair
enough, that is nothing to do with newspapers. If Mr Mosley wants
to persuade the neighbours to come in and dress him in prison
uniform, pretend to pick lice out of each other's heads and whack
him on the bottom—again, nothing whatsoever to do with the
newspapers. This was a totally different situation. This was a
case of a man who went to a flat rented for the purpose, paid
five women procured by a madam £500 each to engage in acts
that exploited and degraded and humiliated those women. Go further
down the road from that flat and you will probably find a massage
parlour. Inside are poor East European girls; rather than a madam
there is probably a pimp; they are being exploited at £75
a go by punters. Parliament, your party with great respect, Mrs
McKenna, has said the latter is unacceptable, totally wrong, outrageous,
the law must be changed, prosecute those men if they are being
procured by a pimp. Justice Eady says that Mr Mosley's behaviour
is merely unconventional, not illegal. I see, I am afraid, a direct
curve, a direct line, from the acceptance of Mr Mosley's behaviour
to the treatment meted out to those girls in a massage parlour
by guys who have nothing like the money of Mr Mosley. I find the
one legitimises the other and I very humbly suggest to you that
that should be of huge concern to MPs, particularly women MPs.
Q516 Chairman: The difference is
that nobody is suggested that what Mr Mosley was doing was illegal,
whereas the courts did rule that, despite your strongly held view,
what you did or at least what your newspaper did was in breach
of law?
Mr Dacre: My newspaper?
Q517 Chairman: Sorry, the News
of the World. I take that back.
Mr Dacre: The Daily Mail
would not have published that story. I find myself in a difficult
position defending a paper that I—
Q518 Chairman: You are passionately
defending the newspaper—
Mr Dacre: Well, freedom of the
press. Yes. I am not suggesting whether it is legal or not; what
I am saying is that by accepting that it is acceptable behaviour,
if unconventional, you are legitimising what is going on in that
massage parlour, and it seems inconsistent that you should be
concerned about one and not the other.
Q519 Rosemary McKenna: Do not assume
for one minute that we are not concerned about those places. We
are, and we deal with that every day. However, this is about press
and media intrusion, not about that, and I asked you if you would
support Parliament bringing in a statutory privacy law. Since
you obviously do not like the effect of the Human Rights Act and
the way it is being interpreted by judges, is the alternative
bringing in a privacy law?
Mr Dacre: That is a good and very
fair question. Can I try and answer it? Unequivocally I would
not be in favour of a Privacy Act. I believe it would have a very
deleterious effect, a chilling effect, on the press and the media
in general. I believe that the Human Rights Act needs to be amended:
I believe it needs to be recalibrated to give greater recognition
to the importance of the democratic process of the vital and vibrant
free press. I believe it needs to be recalibrated to give more
weight to freedom of expression over right to privacy. Again,
those are not my views: those are held by the Opposition and Jack
Straw himself. The crucial question in the privacy law would be
what is in the public interest. My problem is I am not sure that
judges—whom I respect enormously but who come from a narrow
and privileged background—always understand or accept what
is in the public interest. One or two of them have a low opinion
of the popular press. They are not elected. I would argue that
what is in the public interest by and large be decided by the
public—which means Parliament—and I would like a debate
of Parliament on that subject. Another problem with it is that
all stories involve an element of privacy, whether it is a gossip
page paragraph or a major investigation, and it could therefore
be used by lawyers to injunct a paper. My experience of injunctions
is that judges invariably grant them because there is less risk
in them granting them than making a decision on the spur of the
moment and in difficult and fast and rapid circumstances. That,
again, involves huge amounts of money and lawyers and time. I
believe that privacy law would have a chilling effect on journalism.
Can I give you an example? If an individual found out that a newspaper
was making inquiries about him the first thing he can do is rush
to the courts and try and get an injunction. Maybe that newspaper
had not had time to do all its inquiries, or was not ready to
go to publication. The injunction would be granted; it would get
ground down to a hugely expensive process; I believe this would
be a dangerous form of prior restraint. Journalists would immediately
find themselves under great pressure to reveal their sources;
they would not reveal their sources. As you know, it is an act
of faith in journalism not to; it is more time, more costs. News
is often very perishable and the story could be negated. So for
all those reasons I am against a privacy law, but I would like
a debate by Parliament on the takeover by the European Court of
this area.
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