Speech to Society of Editors
16 November 2009
It is a great pleasure to have the opportunity of addressing you this afternoon.
I have to admit to you that as a barrister practising well away from media and libel law, I spent my pre parliamentary career largely with little contact with journalists and the concerns that have brought you together today. But after I was elected to Parliament, a friend of my father’s, John Hardeman who had been editor of the Solihull News and very active within your society came to see me on one of his visits to London and spoke to me over a meal of the importance of understanding the changes facing your business and the importance of establishing an honest dialogue between journalists and politicians. Since then he has sent me on a regular basis copies of the Press Gazette for my bath time reading and other background briefing. I am immensely grateful for his kindness in doing this and I trust that the professionalism he embodies has had a beneficial influence on me in my present role.
Now it was Thomas Jefferson who said that ‘the liberty of speaking and writing guards our other liberties.’ I agree and when I was first elected to Parliament in 1997 it did not cross my mind that this principle which underpins our freedom and democracy could be under threat.
Yet of late this freedom seems to have become a bit of a precarious business in this country. We’ve seen a furore over the BBC’s decision to give the oxygen of air-time to Nick Griffin, an MP arrested for revealing the fiasco that left 5,000 illegal immigrants vetted to work in security posts, and a further judicial decision extending the right to privacy into waters previously left free for media comment.
The internet has expanded the implications of free speech, through the media, in ways that could never have been predicted - mostly for the good of our society. But it is not entirely without risk, whether from terrorism or predatory criminals of one sort or another.
I instinctively favour the case for free speech, even where it must be balanced with other considerations.
Free Speech
In the case of the BNP Question Time, for example, there may be reasonable questions about how the show was run. But as to whether Mr Griffin should be allowed on in the first place: I believe that, unless someone is directly inciting violence or serious disorder, their voice must be heard and if the BBC has rules that allow parties to have air time based on representation. It is a bad precedent to skew those to exclude those whose views we rightly dislike. I
take the Samuel Johnson line, that:
Every man has a right to utter what he thinks truth.And every other man has a right to knock him down for it.
Johnson rather presciently added that ‘martyrdom is the test’. We have far too many taboos today as it is, and too much political correctness.
Some of the greatest debates in Parliament in recent times have been on abortion and stem cell research, fuelled by scientific innovations that are sure to continue, and which raise deep and fundamental moral issues. They must be debated from all corners of the ethical, political and religious spectrum. We need a bit more humility, and a lot more debate.
Unfortunately, the trend in recent years has been in the opposite direction. There are the celebrated cases. The two anti-war protesters prosecuted for reading out the names of the war dead outside the cenotaph, because they didn’t ask permission first. The on the spot fines for those audacious enough to sell Bollocks-to-Blair t-shirts. Or the heavy-handed treatment of Walter Wolfgang under terrorism powers just for heckling Jack Straw on Iraq.
But free speech has been whittled away in ordinary daily life too, and that worries me more. We have seen a 15 year old boy threatened with prosecution for the temerity of holding up a banner calling the Church of Scientology a cult, and Philip Howard the Oxford Street evangelist, ASBO-ed for his regular soapbox crie de coeur: ‘Don’t be a sinner, be a winner with Jesus’. And most recently a 67 year old Mrs Howe in Norwich visited by two police officers and warned for the heinous temerity of writing to her council to complain of their support for a Gay organisation. When, as a society, did we lose our sense of proportion and sense of humour? When did we decide there was no place for difference and eccentricity ? And what does this really teach our children, when it comes to tolerance?
But if this strand of the so-called Respect Agenda is in fact ingraining the reverse, it has been bolstered by a raft of authoritarian new legislation. How many times has this government claimed a pressing operational need to plug gaps in the law? We now have an offence of glorification of terrorism, yet I am not aware of a single successful prosecution. Or inciting religious hatred - again not a single conviction in the courts.
Or inciting homophobic hatred, where we have had to fight hard last week to retain a saving clause for freedom of expression, yet it has never even been brought into operation. Of course, there will be some who ask: why are you worried if the legislation hasn’t been used? First, because it shows the government’s arguments were a sham. And second, because even if there are no successful prosecutions, it has the capacity to have a chilling effect on free speech.
In 2007, the Dispatches documentary, Undercover Mosque, revealed the extreme homophobic, sexist and intolerant preaching of extremist Muslim clerics at the Green Lane mosque in Birmingham. The documentary showed preachers referring to homosexuals as ‘filthy dogs’, justifying the 7/7 bombings and explicitly calling for the death of those who convert from Islam. West Midlands police recommended to the Crown Prosecution Service (CPS) that it consider a prosecution - not against the preachers, but rather the filmmakers for allegedly misrepresenting the views of the clerics and undermining community relations. Even when it became clear that there was no evidence to back up this allegation, police and prosecutors still referred the case to Ofcom. Ofcom duly threw out the complaint, finding that Channel 4 and Dispatches had produced the documentary accurately and responsibly.
Channel 4 and Dispatches then sued the police and the CPS for libellously suggesting that the documentary had been selectively edited in order to distort the views of the preachers. Eventually, as we know, the police and CPS were forced to issue a public apology and pay a six figure sum by way of compensation.
But, what wider impact does this have on newspapers, documentary makers and broadcasters ? Do they think twice about broaching certain issues? Or perhaps just pull the occasional punch? I fear that kind of slow dilution of free speech and open debate, in this country far more than the risk of a full frontal onslaught on our freedoms from men in jack boots.
Then there are the whistleblowers. Like Chris Galley and my colleague and friend Damian Green. As we approach the next election, and the prospect of government, a cynic might expect a subtle shift in tone on this subject. Well not from me. Of course confidentiality in the workplace is important. That’s what employment law is for. But if someone is prepared to give up their job to expose information that does not harm national security and is overwhelmingly in the public interest, that is not something for police and criminal prosecutors. The approach of this government has been paranoid, vindictive and foolish.
In another case, Derek Pasquill, disclosed sensitive Foreign Office documents which appeared in newspapers, exposing FCO engagement with extremist Islamic groups, like the Muslim Brotherhood in Egypt. It turns out that some of their members have connections with terrorism. Far from forcing an embarrassed FCO to reconsider its policy on engagement with radical Islamic groups, the government’s reaction was to press for a prosecution against Mr Pasquill for breaching the Official Secrets Act. The prosecution’s case collapsed, when senior FCO officials admitted that a prosecution could not succeed, because Mr Pasquill’s actions were actually beneficial, precisely because they encouraged a constructive debate on a serious matter of public interest.
Last but certainly not least, on the issue of free speech, there is the steady development of privacy law of which the Max Mosley is the most startling example. I should make clear that I am not in the business of criticising individual judicial decisions. If we enact law that lacks precision there is no point complaining when judges fill the vacuum. But I am concerned about this trend for two reasons. First, because I think it creating considerable legal uncertainty which is not satisfactory as it leaves the media exposed to unpredictable litigation. Second, because changes of this magnitude require public debate and it must be for elected law makers, not the courts, to lead this and decide the delicate balance between free speech and personal privacy.
As you, know we have a Bill of Rights Commission looking at the detail of how a new Bill of Rights might address a whole range of problems that have occurred under the Human Rights Act. This is a particular area we are looking at, and I welcome views on it. More generally, free speech illustrates an area where a Bill of Rights can and, in my view, should strengthen the protection of a freedom eroded despite the Human Rights Act. I am always careful not to overstate what a Bill of Rights can achieve within the parameters of the ECHR, to which my Party properly remains committed. But bolstering the protection of freedom of speech is a very good example of an area where we can if we choose strike a different balance than at present.
Rejuvenating British Justice
Then there are the wider issues relating to the British justice system that the next Justice Secretary will need to address. I don’t want to sound apocalyptic but we are in fact facing a serious crisis in the administration of justice which is teetering on the brink between passable efficiency and collapse. There are intense pressures on legal aid given the tight public finances which are restricting access to justice. We will be looking at innovative ways to bring in more money to sustain this vital service provided by the State whether through a Contingency Legal Aid Fund or private insurance cover for legal costs and expenses. One of the consequences of changes to traditional access to justice in the last two decades has been the growth of a litigation culture in which the lawyers have been deliberately encouraged to take an economic stake in the success of their client’s case. I have indicated on many occasions my growing concern as to the impact that this can have both on professional standards in the legal professions and on the cost of litigation. I know that you share those concerns when it comes to the operation of conditional fee agreements, and the size of the cost recovery awards that they have led to, as you consider that it is having a damaging impact in deterring legitimate media comment. It is also undoubtedly leading to England becoming a forum of choice for suing for libel.
These are all linked areas that we are currently looking at. Some of the issues are not easy. Frivolous litigation that might deter legitimate media comment is always to be deplored but this does not mean that the only remedy must be to curtail the right of individuals to seek redress for libel by the media. But the rise in litigation costs to the point where they can bear no relation to the damages sought or obtained seems to me to go to the heart of the issue.
I intend if we get into government to review all this, hopefully on the back of Lord Justice Jackson’s final report. We will need to consult, but my strongly held view is that enhanced costs as success fees arising from the Access to Justice Act must be reduced or eliminated. There may indeed be merit in looking at how other countries handle civil litigation. In Germany for instance, recoverable costs are limited to the final value of the claim. The result is greater certainty on costs, much greater participation by the insurance industry than we have here and easier access to the courts for everyone.
When it comes to bringing greater transparency to the family courts, a Conservative government will be guided by a number of principles. We want a presumption in favour of transparency, but one that can be limited by considerations of child protection. We want greater reporting of cases, but subject to restrictions, redactions where necessary and limited access to the public, to be properly policed by the court. It may be necessary to have a third party body of some kind to help disseminate greater information about procedure and proceedings, with the public interest in mind. And we are interested in the idea of press accreditation for certain family courts, so we can build up high levels of trust between the courts and the media. This is all sensitive terrain. But I hope it gives you a sense that we are inclined towards greater transparency where it will do no harm to children.
My Shadow Justice team colleague Henry Bellingham has undertaken a review in this area, looking at the detailed implications of these principles. Similar considerations drove our approach to the government’s reform of coroners inquests.
We resisted the attempts to have secret inquests, that might be used in cases like Jean Charles de Menezes or military inquests, with enormous public interest - and of course considerable scope for political embarrassment. Transparency in this kind of case is the whole point of the process, not an inconvenient add-on. At the end of the Bill’s passage we secured safeguards to prevent the secret Inquiry route being abused. The outcome is far from perfect but I believe much better than was originally proposed.
Transparency in GovernmentJust as we need greater transparency in the courts, so we have supported the case for greater transparency in government. In particular, we backed the reduction of the time limit for releasing government records to 20 years.
This government deserves some credit for increasing transparency through the Freedom of Information Act. Whilst in many cases they have fought tooth and nail to resist the consequences of that legislation, it has proved an irresistible force for openness. On the other hand, in some of the most controversial of cases, the government has actively prevented a full account of the facts reaching the public domain, despite my Party’s calls for an independent inquiry, whether on the Iraq war, allegations of MI5 collusion in torture, the failures of the intelligence services and police in the lead up to 7/7 and the release of Lockerbie bomber al-Megrahi.
But, I suspect whatever the nervousness of any government and anyone in government, we are witnessing a further sea-change in public expectations. You may have picked up that FoI has also had the odd knock-on effect in Parliament. Over a hundred knock-on effects to be more precise. Having observed this tidal wave, from inside the House of Commons, two things are clear. First, that Parliament has fallen short of the public’s standards, even where it met its own. Second, that the transparency driven by FoI – with a little help from one particular broadsheet - has wrought more real change on the political landscape the any of the constitutional innovations introduced by this government over the last 12 years.
As painful as it may be, I believe over time it will strengthen Parliament. David Cameron understood this from the outset. And a Conservative government will extend the march of FoI into other organisations, such as the Association of Chief Police Officers, Academies and the newly nationalised banks.
Bill of RightsFinally, I should say something on Conservative plans for a Bill of Rights to replace the Human Rights Act.
The basic position is I hope clear. A Conservative government will not withdraw from the ECHR. We want to strengthen the protection of our core freedoms. Can anyone seriously contend that the Human Rights Act has effectively safeguarded liberty over the last 10 years?
We will add certain quintessentially domestic rights, for example in respect to jury trial. And as I mentioned before, we will take the opportunity to look at the balance between rights – such as freedom and personal privacy. We will not dilute our commitment to the absolute rights, like the prohibition on torture. Yes, that creates some difficulties in relation to deporting a limited number of suspected foreign terrorist suspects but that difficulty will always exist in a liberal democratic society. Look at the USA and its problems in repatriating Guantanamo inmates. Frankly, we should be using intercept evidence to prosecute them, and a Border Police force to keep them out in the first place.
We also want to try and limit Britain’s exposure to judicial legislation, both from Strasbourg and increasingly the UK courts under the Human Rights Act.
I accept people will have different views on whether the courts should be expanding human rights law as well as applying it and the Bill of Rights process will offer that debate. But, it is not credible to suggest that there is no debate to be had at all, on the judicial application of sections 2 and 3 of the HRA and some of the decisions of the European Court of Human Rights. There is too much case-law to the contrary. And too many serious jurists, including Lord Hoffman, testifying to - and concerned about - it.
There are limits to what we can achieve using the so-called margin of appreciation, the leeway the UK is permitted under the Convention. But change can be substantive, and make a difference, without throwing the baby out with the bathwater.
Conclusion
Of course, as Gordon Brown has rather painfully learnt, the business of governing is not predictable. We plan and prepare, but the unforeseen will be what really tests us. So, it is important for the public to know our philosophy, not just our policy.
I hope I have demonstrated that an incoming Conservative government would – despite the inconvenience it may occasion – respect freedom, promote transparency and strengthen rather than weaken the pillars of our justice system.
We also recognise the key role the media plays in achieving those same goals.