The PM Privacy Commission spoke to Conservative MP Louise Mensch on Wednesday June 22, 2011. The commissioners are Sir Michael Lyons, Lord Faulks QC and Baroness Liddell.
Please note the PM programme, BBC Radio 4, must be credited if any part of these transcripts are used.
NB: This transcript was typed from an audio recording. The views expressed by the witness are their own.
Because of the possibility of mis-hearing and the difficulty, in some cases, of identifying individual speakers, the BBC cannot vouch for their accuracy.
ML Our next witness is Louise Mensch, formerly Louise Bagshawe, can I start by congratulating you on this summer's marriage. Louise is Conservative member for Corby and a member for the Culture Media and Sports select committee since she was elected in 2010. Louise would you like to just begin by giving us your prospective on this issue that we're looking at, which is the balance of right of privacy of the individual against the rights of freedom of expression of the press, and perhaps give us sense of your involvement in that debate through the select committee
LM Yes. Through the select committee we have been asked to look at this by the Prime Minister following the report of the Master of the Rolls published on the 20th of May of this year. And it's a joint committee being set up, and the Prime Minister wrote to the chairman of my committee, amongst others, asking him to set this up, which I think is the right response. I believe that the main area of controversy here has slightly widened from the debate about what is to privacy and what is the right to freedom of expression to what are the relative powers of the judiciary and parliament and that indeed is the area of which I am most concerned as a member of parliament because I fear that if something is not done fairly soon about clarifying the situation we are on most regrettable crash course between our Sovereign legislature and our judiciary which would be a disaster beyond all telling. It was the issue of parliamentary privilege that John Hemming used to break the injunction over Ryan Giggs. After, it must be said, a tussle with the speaker, who on previous occasions had tried to restrain him from doing the exact same thing, in open defiance of the courts and to the delight of the press corps, who'd wished this injunction to be broken at any price so they could name the footballer concerned. I am extremely worried as a parliamentarian to see our nation going down this route because we are taking our wonderful, flexible, fluid constitution and turning it into a circus. In the respect I think it's completely, it's very important that we tighten up the law, give guidance to the judges and then respect their decisions and that has not been happening yet.
ML But the case you illustrate it seems to point to the need for guidance for parliamentarians about the limits of freedom of speech
LM And there indeed there you have another bit I was most worried about in the report of the Master of the Rolls which contained some sensible, sensible guidelines laid out. He said in my view very controversially that parliamentarians who used their parliamentary privilege in a ways which was not, absolutely had to be absent of malice and had to be in context otherwise they would be found in contempt of court. I must say I reject that suggestion absolutely and from first principles, and I will be amazed if the joint parliamentary committee does not reject that flat out. So I fear that I am not exaggerating when I say this issue has become a tussle of Sovereignty. It is quite wrong to suggest that parliamentary privilege should be trammelled in any way other than by, other than by parliament itself. I think Mr Hemming received the opprobrium of all of his colleagues because he used his parliamentary privilege in a way that everybody felt was inappropriate. However, as I said on Question Time when asked about this issue, Mr Hemming has in the past used his parliamentary privilege in an appropriate way to break super injunctions that were far more important, I refer to the so called hyper injunction that he broke in March of this year, which was a far less interesting case and therefore the press therefore received almost no coverage, to do with an allegation that a constituent believed that paint on the water tanks of ships, and this isn't a footballer, was possibly poisoning the water supply. An injunction was served on that constituent that forbade him to talk to anybody who might further his case, including lawyers and crucially including members of parliament. May I say, it is not for the courts to prevent citizens to speaking to their members of parliament on any matter what so ever. That is a fundamental right of our citizenry and it's standing on the rights of parliament in that way the courts are standing on the rights of the people, not because parliament is all wise and all knowing, I would defer to the lawyers and judges in matters of law, absolutely, but parliament is elected by the people, we can be fired by the people, we can be re constituted by the people in a way that the judiciary can not and we're going back to first principles now rather any individual case, and the first principle of our constitution is that parliament is Sovereign
ML Can we leave the issue of parliamentary Sovereignty, absolutely critical though it is, just to one side for a moment because there are some other areas we'd like to explore with you, and perhaps particularly to focus on whether parliament discharges and adequate scrutiny of the press in this country?
LM Ah, that is a different and related issue, and I came in at the tail end of your last witness and I agree with thrust of the questioning from Lady Liddell in that I believe that the press complaints commission is a good body, a judicious body. It takes strong decisions, the problem is that it's the punishments that it's able to meet out do not fit the crime and as a result there is very little trammelling of the press because although the body is important its punishments are somewhat toothless. I would be very happy to see the press complaints commission be given more powers and I'm sure it's something that the joint committee of parliament will be looking at. In terms of disciplining the press your previous witness made the point that there is not an equivalency of coverage in a wrong allegation and the apology given. As he said the allegation is a headline the apology is buried on page 54 in tiny print that you need a magnifying glass to see. So there's the embarrassment but it might also be worth fining the papers for example, forcing them to pay large amounts of money, they are after all businesses to make this a non cost effective way of doing business. At the moment I think the press complaints commission works very well but needs to have more ability to sanction.
ML Are you satisfied that parliament and parliamentarians are themselves courageous enough? We've had lots of suggestions that such is the power of the press to intimidate the individual that eh....
LM Could you be more specific?
ML Well, examples of members of parliament who have been pursued. David Mellor was and example given by one witness, someone whose life was made very difficult because he criticised press standards, not the only one by any means. And if I can just link that, it's been suggested to us that the editor of one of the big red tops has refused to attend your committee and in contrary to one might normally have expected to be practice you've not sought to use the powers available to you to bring her in front of you.
LM The proceedings of the committee are absolutely secret and I cannot comment on them in any way what so ever. What is done and not done in a public way is not for me to comment upon, I would be in dereliction of my duty as member of the select committee so I'm going to punt that one I'm afraid. And I'm sure my chairman would wish me to do so. But in terms of are parliamentarians afraid of the press, well, you know, when you sign up for parliament you sign up for everything that goes with it and I think all of us, I think there is perhaps, in our slightly thankfully, our slightly less moralistic culture we have now it's frankly a lot easier for a politician to say the modern day equivalent of publish and be dammed and hold their head up because people seem to care about that thing less and less. What you can find in our dustbins is a story for 1 day and of that seems to bear no, have no real bearing on a person's career and how far they can go in parliament. Its political things, thankfully, that mostly brings politicians down. Is it reprehensible when a anybody, or any organisation goes out of their way to target one individual because they don't like a particular political stance, of course it is, but the courage has to come from going into work and doing your job without fear or favour, as a judge is meant to do, as a lawyer is meant to do in representing their clients and that's what we're got to do and we take it as a given that as soon as you put yourself up for public office you are fair game and the press is, if they have a story to write about you they will write it. So do you I think however we are therefore intimidated from going after the press I think absolutely not actually, many a parliamentary career has been made by standing up and having a go at Mr Murdoch or whatever it might be and I think people are quite willing to supervise the press but we are overall a libertarian country. The mind of the people is libertarian, we are a socially liberal country and a libertarian country and there is indeed the intense interest viewer, the BBC will be very aware of the massive interest in super injunctions. It is enormous. When I appeared on Question Time, contrary to the usual practice you look at what were last weeks questions and you assume they will not come up again, not only did it come up again but it came up twice in the same programme having been done the week before, and I was told by the producers this was the direct reflection of the massive interest that they had received in super injunctions, interest so great from the public they literally could not ignore it. They had to go back to the well. Why are the public so interested? I think it is they feel that when the press are trammelled something very fundamental in the British constitution is being trammelled, and whilst politicians are not, let us say, the most popular category of people, never the less they have the great benefit that you can fire your politician, after a general election you can chuck them out if you don't like them and get a new lot in. You can't do that with judges and that I think is the fundamental that people out there fear, they fear that a privacy law, a secrecy law is being imposed upon them by people they did not elect and who are completely unaccountable to them.
ML Sounds like a newspaper editor to me but let me bring in Edward.
EF Now I detect a little bit of hostility towards the judges here but of course they would say that what they're doing is applying an act of parliament, the human rights act, and interpreting the convention and therefore deciding privacy issues in accordance with parliamentary legislation. However, there's no doubt that the fact all of these decisions are made in secret, or part in secret, this has fed the notion that judges are almost unaccountable and we don't know their reasoning. Do you think that parliament ought to legislate about privacy more specifically other than simply leaving the matter to the human rights acts and the interpretation of the convention?
LM Well I believe and always have believed that the human rights act itself needs to be tightened up. It is drawn so broadly that it is a fabulous yet legal catch all and anything, and I am sorry, I do apologise to the judiciary if this comes across as hostile to judges because that is certainly not my intent but having lived in the United States for some time I was worried by the way if the supreme court, of the United States or of a given state, wished to impose a law they would simply declare it as constitutional versus the State of the United States, as the phrase goes, legislate from the bench. The human rights act is drawn so broadly it can apply to almost everything; I believe it's been applied to the Royal Family and Duchess of Cornwall back in the mists of time and her ability to contract a semi morganatic marriage and its been applied to all kinds of things and now it's been applied to super injunctions. When you a law that's a massive catch all it's not for us to blame the judges and I have said this before it is not the job of the judges to write law, as you say only to interpret it therefore it is right that parliament should tighten up this law to give the judges something which they can interpret. That is the job of the judge. It's the job of parliament to write good laws, clear laws, workable laws. By definition we don't have one at the moment.
ML Leaving aside your reservations about the human rights act, which as a matter of fact I share a lot of those reservations, never the less the judges are deciding privacy issues in accordance with what are fairly obvious balance so they have to be struck between the rights of the individual and free speech. Is there any reason do you think, to think they're actually getting these decisions wrong?
LM It would be nice wouldn't it if we could make that judgement based on full, open justice and have access to all their reasonings, and the principles involved in the facts of the case. But anonymised injunctions, and I don't just refer here to technically super injunctions, take away that ability. It is unfortunate that everybody concentrates on the love lives of a few footballers and celebrities, which are extremely unimportant. I'm concerned by some of the secrecy applied to the family courts, for example, where the consequences for the individual families are far more serious, where there's a very clear public interest and where members of parliament and others are prevented from raising cases of their constituents in parliament because of injunctions. And so I think that that's an area that we should look at. And that's what the, I believe that's the point of the commission.
HL What are the issues of accuracy? One of the issues that we've been talking around here is the illegality that we've seen in certain newspapers and of course there are lots of headlines about that, people going to jail as a consequence of it. The question is how much more of it is going on? But I actually think that much more pernicious is the whole issue around the accuracy of stories that sort of don't let the facts get in the way of a good story. And Max Mosley brought to our attention the difficulties that he has encountered, not least in relation to his dealings with the European Court, in relation to pre disclosure. If you are to be the subject of a story in the media should you be told about it either 48 hours beforehand or beforehand to allow you to seek some kind of legal redress. How do you feel about that?
LM I think the two things go together don't they. One is not to tell a subject and give him the opportunity to rebut the story that you are going to publish something negative about him or her. Is that the subject, especially if they are very rich, may then run to the courts and get an injunction preventing you from publishing your story. As a result it used to be the practice, as I understand of Fleet Street in general, to call up and say we're going to print this, do you have any comment. This may be less so now because they fear, especially if the subject of their story is a big rich famous celebrity that they will be straight off to Mishcon de Reya to get an injunction to prevent the story from coming out. So if we were to make it legislatively more difficult to tighten up the conditions anonymised injunctions could be granted, one beneficial side of that would be that, one would hope, the press would be more open to allowing those who are the focus of such stories to be given a chance to rebuff and I don't see why they shouldn't go hand in hand. If the law were tightened up so it was more difficult to get an anonymised injunction the press could also be directed, whether by a new code of conduct enforceable through the press complaints commission or other to give the subject of such stories the chance to send in the statement or put their side of the story or correct matters of fact, and if they do not give them that, give them that opportunity then they should be very sure of their facts. They should be very sure of their facts and if they're going to go to press and print something that is not true they should be aware that they will suffer genuine financial consequences as well as embarrassment, by the punishment that will follow by the Press complaints commission. So, all those things work together. The ability of the press complaints commission to hand out effective punishment, a limit how and when judges can grant anonymised injunctions, and at the same time the opportunity given to the subjects of exposes to rebut them should they wish to do so.
ML Just before you joined the select committee, it published it's report on these very issues, including some quite substantial recommendations for changes in the way the PCC works. Do you if those changes are being made?
LM. Not to my knowledge. But I must confess I'm not expert on it, I'd have to go back and look it up. I certainly have seen no signs of it myself.
ML And I think that we've reached the same sort of tentative conclusion. In your view, if those changes aren't made voluntarily, what does that point to? Given that you've agreed that there is action to be taken and the select committee is being very clear about the steps that should be taken
LM Well the select committee of course is not the Government. We scrutinise the Government, we make recommendations to the Government. Perhaps the silver lining in the cloud of the mess that is super injunctions and publics reaction to it and parliamentarians define the judiciary as Uncle Tom Cobley and all, is that huge media focus that has followed this issue will now compel people to listen a bit more carefully to the report of the joint committee that will come out as directed by the Prime Minister and would imagine, how shall I put this, that that report when it comes out will have a bit more teeth and it's recommendations are far more likely to be followed, because the public is watching and ultimately they are the arbiters of us all. If the public do not like the conclusion that parliament and the judiciary reach together on super injunctions they will make that very clear and action usually follows when the public raises its voice.
ML We know that you're under tight time constraint and than you for finding time within that heavy schedule to come and speak to us today. I've offered other speakers an opportunity, other witnesses an opportunity just to close by speaking as it were to the listener on this issue. Is there anything, do you want to take up the opportunity?
LM Yes, thank you there is. I would say to everybody out there who is concerned and this may run counter to the way I've presented some of my arguments earlier. We really mustn't blame the judges. They are doing what they believe to be right and they are interpreting law according to their lights and that after all is their job. It is not the job of judges to write the law, it is the right of parliament to write the law and clearly the law is too loose and is allowing a form of secret justice to arise. But the simple answer to that is for parliament to legislate, it's not for parliamentarians to stand up and defy judges because that strikes at the heart of constitution. We've worked incredibly will in this country, over a thousand years having a flexible and loose constitution that has never been written down that has served us very well. And we shouldn't lose the beauty in the flexibility in that constitution over a couple of footballers.