Press standard, privacy and libel - Culture, Media and Sport Committee Contents


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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