Examination of Witness (Question Numbers
975-979)
RT HON
JACK STRAW
MP
19 MAY 2009
Chairman: Good morning. For the second
part of this morning's session, I would like to welcome the Lord
Chancellor and Secretary of State for Justice, Jack Straw. I will
invite Philip Davies to begin.
Q975 Philip Davies: Perhaps we could
start where we left off with our eminent judges, with the Human
Rights Act. Could you give us your thoughts on the balance between
articles 8 and 10? If not a contradiction, there certainly seems
to be a great tension between the two.
Mr Straw: Essentially it is as
the Master of the Rolls has described—and he is much more
of an expert on how these articles, alongside English common law,
have been interpreted over the years. As he was describing, the
Convention (and therefore the Act) requires that there is a balance
here to be struck between freedom of expression and a right to
privacy under articles 8 and 10 respectively. That is a very wide
discretion given to the courts. The interesting thing about the
Human Rights Act which I think it is always worth bearing in mind
is that, although it was not incorporated into British law until
the year 2000, 49 years after the Convention came into force,
the rights that are written down in the key Convention articles
are essentially British rights. This was drafted by British jurists,
not least Sir David Maxwell Fyfe (as he then was), who later became
Lord Kilmuir, the Lord Chancellor in the 1950s, and they were
trying to set in a code what was understood to be the basic civil
and human rights which we had taken for granted in the United
Kingdom for many centuries—for sure here we have taken for
granted, and the courts have then given some articulation to the
idea both of a right to privacy and to freedom of expression.
Then, as the Master of the Rolls has described—and he has
set out quite a number of the leading cases on this, including
the (Naomi) Campbell case—there was already developing
jurisprudence in respect of the law of confidence, which, crab-like,
as the Master of the Rolls was indicating, was developing something
along the lines of a law of privacy, and then we got the Human
Rights Act, which certainly moved it up a gear. If your next question
is, "Do you think there should be statutory changes made?"
the answer is that I want to wait to see what your Committee has
to say on it. I am not, Chairman, trying to dodge this, but I
was thinking about this overnight, and there are some areas where,
for sure, it is sensible for Parliament to intervene rather quickly.
If you take, for example, the area of the law of negligence, although
there are occasional interventions, not least over procedural
issues (limitation periods and things like that), the law has
developed in a flexible and sensitive way because it has been
developed on some very clear principles which have then been interpreted
in particular cases. That is my starting point, but obviously
I want to see what your report says.
Q976 Philip Davies: Surely the starting
point here—which is what I am trying to get to—is
this: when you introduced the Human Rights Act into British law,
in terms of the judgments that have been made, have they panned
out as the Government intended or have there been some unintended
consequences?
Mr Straw: I am not being forensic
about this, but my judgment is, in general, if we went back to
what we said and what Parliament said in the 1990s, the interpretation
of it has worked out as was thought, and in some areas, it has
worked out in a different way. It is impossible in any circumstances
to take account of an environment which is going to occur in the
future. One of the things which I certainly did not anticipate—which
has not affected this area but it has certainly affected the overall
environment of the Human Rights Act and its application—has
been the fact that 11 months after the Human Rights Act came into
force, which was on 2 October 2000, we had 9/11. That meant that
we then ended up by fighting two wars and having to introduce
a raft of counter-terrorist legislation which tested those articles
in a way in which it would have been better, if it had been possible,
for them not to have been tested until they had bedded down. That
is one example. Perhaps I might add this: it is certainly the
case—and I know that Mr Dacre, when he came before your
Committee, Chairman, was indicating this—that the newspaper
editors and the journalist organisations were concerned about
how article 8 would be interpreted. They were particularly concerned
about interlocutory injunctions, stopping the presses. That is
why I negotiated the terms of what became section 12 with them.
Although, for sure, they have complaints about the level of fees
and costs—which I fully understand and in many respects
share—and they have concerns about particular decisions
in the courts, not least in the Mosley case, section 12,
as the Master of the Rolls has spelt out, has worked to their
advantage without any question.
Q977 Philip Davies: I think you said
in your first answer that the Human Rights Act has given a wide
scope to judges. Surely over the last couple of weeks we have
seen the importance of having a free press and media to expose
wrongdoing in authority. Would you not agree that the time has
come for Parliament itself to clarify the importance that it places
on freedom of speech? I personally would like to see a greater
strengthening of the right of the press to be freer in what it
publishes, but whatever side of the argument one takes on that,
surely it is time for Parliament to decide which should have priority,
freedom of speech or privacy, and set it out clearly, rather than
leaving it to judges to interpret the law. Would that not be more
sensible?
Mr Straw: I do not rule out the
idea of legislation on this; I just say that it is very complicated.
My experience of decisions in respect of human rights over the
years is that some of those which caused the greatest initial
excitement have ended in a situation where, because of changed
circumstances or appeals to the Court of Appeal or the Law Lords,
things have calmed down, because those senior courts have produced
a better balance. Since I am a respondent to a large number of
cases any day in the courts on human rights bases and others,
I can think of a number of cases in my area. So I do not rule
it out, but where you are seeking to balance privacy and the right
of expression, in the end, if those rights are justiceable, you
are going to have to give that balance to a court. After all,
yes, we have seen in the last two weeks the value of a free and
independent press. I do not think there is anybody in this place
who has challenged that, or very few—I mean, there was an
argument beforehand, but that has not been challenged—so
quite how a law would have helped there I am not sure. In every
jurisdiction I can think of which seeks to provide justice, you
have, by one means or another, a right of privacy and a freedom
to express yourself as you wish, and a recognition too that those
are potentially, sometimes, in practice in conflict and therefore
it means resolving those conflicts.
Q978 Philip Davies: I am somewhat
encouraged that you are considering some kind of legislation to
clarify the position one way or the other—you certainly
have not ruled it out—but we have had so much case law now
that it is becoming increasingly clear where we are. What would
have to happen for you to decide either, yes, we definitely will
or, no, we definitely will not, that we do not already know?
Mr Straw: Since this is a public
session and there are members of the media here, I do not want
to over-egg what I am saying through your interpretation, but
there is a difference in the scale of things between not ruling
something out and considering it. On the scale of things: I am
not ruling it out. There are some things I would rule out. I do
not rule this out. You and your Committee, Chairman, are devoting
a lot of time to this issue, and I want to see what you have to
say. That is not passing the parcel: I think that is a sensible
way to do this. If you are going to go for change in this area
of law, you have to do your very best to make sure it is pretty
consensual—not absolutely agreed, but it would be ludicrous
to have it so that it becomes an issue of a partisan battle. I
would just say in my own defence, as it were, that I recognised
in 1998 when we were putting the Human Rights Act together and
early 1999 that there were not just concerns in the media but
that they needed to be dealt with. There were also issues of the
churches and religious organisations. We sought to deal with them.
But I am not in favour of altering the articles. That, as the
Master of the Rolls said, would involve a huge change in approach
by the three parties to do that, but I have never ruled out the
equivalence of sections 12 and 13 in the Human Rights Act, which
are to do with procedure and alerting the court as to how they
should tip the balance and where they should shine the spotlight.
Q979 Chairman: There is no doubt
that section 12 was the one area where Parliament attempted to
give guidance to the courts. We have just heard from the Master
of the Rolls that, indeed, if section 12 is applied when an application
for an injunction is made, the judge should give greater weight
to the importance of freedom of expression. The Master of the
Rolls also conceded that on a Saturday night when the News
of the World comes along and says, "Here's our splash
story," and the subject of it says, "I want an injunction,"
the chances are that the judge may well say, "Well, we can
think about this over a few days and I will give a temporary injunction
to allow us to have greater consideration," which of course
is the last thing the News of the World wants, and therefore
the case of the media is that section 12 is not really having
the effect intended and that judges do tend to grant injunctions.
Mr Straw: As far as that is concerned,
Chairman, I would like to see the evidence. I do not have data.
Looking at summaries of the evidence you have already taken, one
of the questions raised was data on the number of applications
made for interim injunctions out of normal hours, or, indeed,
in hours as well, and the numbers granted I would like to see
what, the data is on that and, also, before and after the coming
into force of the Human Rights Act. I guess that I am probably
the only person in this room who has had experience of not only
seeking an injunction on a newspaper but being successful in getting
it on a Saturday night, and that was in respect of the leak of
the Lawrence inquiry report to the Sunday Telegraph in
mid February 1999. The argument there was about a breach of copyright,
rather than a breach of privacy. In the end the court did grant
the injunction on the grounds that there was no public interest
in publishing this document on a Saturday when it was going to
be published anyway the following Wednesday, but they were not
patsy about this at all—I mean, they were pretty thorough.
Section 12 says in its first subsection: "(1) This section
applies if a court is considering whether to grant any relief
which, if granted, might affect the exercise of the Convention
right to freedom of expression." Although, as the Master
of the Rolls correctly said, it specifically, as in subsections
(2) and (3), relates to interim injunctions, subsection (1) makes
it clear that it is drawn more widely and has general application.
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