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

Examination of Witness (Question Numbers 975-979)


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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