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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 Welcome back to the privacy commission. Before we begin today's proceedings I'd just like to say that having received quite a lot of evidence about the role of the Press Complaints Commission and indeed the evidence of its own director. We've decided to go back to the recommendations made by the Select Committee for Culture, Media and Sport about how PCC might operate more effective regulation, and given the limited time available to us we've decided to write to the PCC asking them if they would like to share with us their reactions to those recommendations and indeed any actions that they've taken or plan to take.
It's our intention to publish both the letter from the commission and their reply on the PM website. Marcus is also Chair of the Media Lawyers Association, so right at the very heart of this debate.
Marcus, would you say a little bit about your role and your experience in this debate which brings together the rights of freedom of expression for the press and the rights of privacy for the individual. MP Certainly. Thank you very much for inviting me. I have considerable experience in privacy cases, having been involved in A versus B and C which is known as the Gary Flitcroft case and also the Naomi Campbell case which is still ongoing as MGM versus the United Kingdom.
A few years ago I got particularly interested in the procedure that was happening about injunctions; how they were obtained and how they were served on third parties such as media outlets without the third party being given an opportunity to appear in court or being given an opportunity, in some cases to see the evidence in which the injunction was based.
I was also a member of the Master of the Rolls Super Injunctions Committee which has recently reported another case I was involved in Cream Holdings versus Banerjee which is a leading case on Section 12 3 and the test that the court should apply when deciding whether to grant and injunction.
ML I get the impression from an article that you wrote in The Lawyer recently that you are clear that bringing in the Human Rights act the Government legislated primarily for freedom of the press and to a much greater lesser extent for the privacy of the individual. Is that right? But yes, I am very clear. I think one of the things that really needs to happen in this debate is the debate that took place in the House of Commons on the 2nd of July when it became Section 12 of the Human Rights Act was introduced, I think everyone in this debate would benefit from actually revisiting that debate.
What was said by the minister and I'm very clear that I think from about a case called re-es which was a House of Lords case the courts have simply balanced Article 8 and Article 10 without doing it, without looking at Article 8 and Article 10 in the way that Parliament intended.
And that's where I think we have gone wrong. And I think if you look at that debate, what Parliament said and what the minister said I think we would of ended up in a slightly different position than we are now. ML So that leaves you to conclude that Parliament needs to do more to protect the rights of the individual citizen? MP I don't think Parliament needs to do necessarily more, I think it's a question of the courts looking at what Parliament intended.
ML But by your own comments you are suggesting that Parliament focused on the interests of freedom of expression and therefore perhaps by implication didn't give enough attention to protection of the individual. MP No I don't agree with the implication. I think that Parliament clearly considered Article 8; the right to respect for private and family life and considered Article 10 and Parliament said, and this is the minister's own words that they were doing more to entrench freedom of expression in this country and simply bringing in the European Convention of Human Rights.
I don't think they necessarily need to do more for the Article 8 right. ML I think what you're suggesting, if I've understood you correctly, is the judges ought to look at what the minister actually said in the debate which would involve the Pepper and Heart rule.
Now it has been suggested that the law although essentially clear enough would benefit from some further confirmation by legislation. Maybe they are repeating what's already reasonably established. Do you think that it would be useful if there was a specific privacy law as opposed to the Human Rights Act involving as it does the convention and balancing of Article 8 and Article 10? MP No. I don't think, I think obviously the problem we are in, I believe, is that the courts haven't paid enough attention to what Parliament said.
So if it's necessary for Parliament to re-say that, then it might be appropriate but I don't think there's a need for privacy legislation beyond European Convention. ML So you don't think we need to change the law but it may be a good idea as it were to confirm it by legislation which says more or less the same thing but specifically sets out what perhaps is a little more elusive as you have to look at what a minister has said to find out what Parliament really intended? MP I'm sort of rather against that because I think it will take years and years to do and I think it is just a question of, as you said at the beginning, the judges looking under Pepper Heart, Pepper and Heart, at what the minister actually said.
ML Generally speaking do you think that judges have approached the question of privacy and injunctions in a balanced way? MP I think they have generally approached it in the way that they think they should, which is to balance the two rights, but I don't think that's in accordinance with what Parliament thought they were going to do.
I think one of the problems here is so much of the case law now is based on injunctions and when Section 12 was introduced the minister was very clear that he thought X party with only one side being there would not be the norm. Unfortunately over the last few years they have been the norm. I just don't think people really understand that when these injunctions are granted that more often than not there's only one party in court, giving the court a one-sided version of the situation.
Parliament clearly intended to look as Section 12 too that there would be no disinterested parties. Now one of the recommendations from the Neuberger Report is that the media should be given notice of injunctions before they are applied for and that's a procedure applied in the family division since, I think a number of years and I think that's exactly what Parliament intended. So I think the courts unfortunately were seduced slightly into granting injunctions and not really giving enough thought to the right of defendants and also third parties who are served with injunctions after they have been granted.
ML Now you act for defendants and newspapers. Do you think that serious stories are not being published as a result of injunctions because the courts have not sufficiently respected freedom of speech, freedom of expression? MP Well let me tell you about Cream Holdings. Cream Holdings is a case that went to the House of Lords. That was a case about a nightclub in Liverpool that was running a secret till and not declaring the takings to Revenue. Now you would of thought that you wouldn't get an injunction for that.
But the judge at first instance granted an injunction so that case was appealed to the Court of Appeal and the Court of Appeal decided that there should be an injunction. So we had to go to the House of Lords, spent two years, considerable amount of money, before we win the right to run a story like that. Now that admittedly is a breach of confidence story, but it's the same area.
But that gives you a practical example of a case where we were injuncted by the court and it took two years and a considerable amount of money before we were allowed to run a story in which I would of thought everyone agrees is in the public interest.
ML We're concerned with privacy rather than confidence although I accept there is a degree of overlap. But privacy in particular, the right to individual's private life to remain private unless there is an overwhelming public interest to publicise it in the form of a story. Do you think that is an area where the law is generally speaking right?
MP I think unfortunately terminology is very important here. It is not a right to a private life; it's a right to respect for your private and family life, yes. And freedom of expression is much wider as a concept and a fundamental right than just information that is in the public interest. Article 10 includes things that are in the public interest, things that are of interest to the public, things that are offensive. All of those things are covered and what's happened is that, I think, is that it's been far easier to get through the Article 8 gateway, if I may call it that, than it has been to get to the Article 10 gateway.
And I think the courts are generally much more open to people getting through the Article 8 gateway and are being much harder on the Article 10 point than I think Parliament intended. ML Of course a lot of these stories that we read about, or what we are allowed to read about, and concerned with footballers' sex lives; there really isn't much public interest in that is there?
MP Well I think if you look at it down the other end of the tunnel, do you think that there should be a right to restrict the revealing of an extra marital relationship? MP Well it's dangerous to say "always" but I think it's important to remember that when people get married they make a public vow that they are going to be true to their spouse. By having an extra marital affair they break that marital vow and that public vow.
They didn't have to make that public vow; you don't have to get married in this society; and if you take that step I'm not sure that you should be entitled to obtain off the courts protection under right to respect for privacy and family life to stop that being published. I mean a lot of these injunctions don't involve people coming along to court with their spouse saying I've had a relationship and I've told my spouse and I'd like to have privacy for that to repair the family.
These are people who actually want to stop other family members, under something that's called respect for private and family life, learning about what's happened.
ML So your view is if they misbehave or commit adultery then they must live with the consequences? MP The Pepper and Heart rule is that when a court is considering the Parliamentary intention behind legislation they can look at the minister's comments in the House of Commons, sorry when in Parliament when the legislation was introduced.
It's an ambiguity or to understand the Parliamentary intention. HL Now let me take you on to more bread and butter issues perhaps using your involvement with Media Lawyers Association. In terms of the climate that exists within newspapers, what advices are given to editorial about the legal framework in which they must operate? How often are stories legalled? MP Stories are legalled everyday.
I mean most major publishers, I would of thought all national publishers have in-house lawyers, like myself, who spend their time looking at stories. The BBC will have lawyers who look at stories before they are published, both in radio and Television, so it happens all the time.
But we have lawyers, they don't sit on the newsdesk but they look at stories that come in and they are involved in discussions with the journalists and the editors. HL It is assumed in some quarters that the rules have changed in recent years, it used to be that when a story was legalled it was to stop the newspaper from getting into trouble. Now the parlance in the pub is when a story is legalled is to see how far the newspaper can take it.
Would you accept that? MP No, I don't think it has changed in recent years and I think stories are legalled to try and ensure that there isn't a legal problem post-publication. HL Can we talk a little about, you talked about the difficulties of people who are in illicit relationships who are stars and have taken a public vow in a church or in a registry office.
Can we talk a little bit about the man in the street who might find himself suddenly in the eye of the storm? Now the models that you have talked about involve access to the courts and I can always remember as a young undergraduate that justice in Britain is open to all like The Ritz; and from some of the evidence that we've received that is certainly the case.
You know, Max Mosely talking about the first actions he took cost me somewhere up to around a million pounds. What possible freedom does the man in the street have to protect himself in this kind of environment? Or indeed the woman in the street who might be caught up in one of these stories?
MP Well your question raises a number of issues. The problem about legal costs is a huge problem, it's not just a problem that bedevils this area of the law but it is particularly bad in this area of the law.
And that I stress is only for the two days in the House of Lords, that's not for the hearing in the Court of Appeal and nor is that for the hearing at first instance. One of the things that the Media Lawyers Association has been campaigning for is compulsory cost-capping so that the judge in any case looks at what's involved in the case and for want of a better phrase, just grabs it by the scruff on the neck including managing the costs.
Now the problem is, the is a power under the court rules to cost-cap, but under the practice direction to the court rule it's only to be operated in exceptional cases; which obviously it's pointless having the power to cost-cap.
Kent, Littleton, Persis stand by decision to demolish church on Beach Street
From wearing the poppy to the idea of heroism, lectures exploring the themes and rituals of Remembrance will be staged at IWM London and IWM North for the first time this autumn. Examining the notion of what it means to be a war hero and the controversies of wearing or not wearing a poppy, the lectures will bring together panels of public figures, veterans, journalists and sportspeople, amongst others, to discuss the topics in front of an audience at IWM London and IWM North. The panel will discuss the nature of heroism in conflict, how members of the armed forces feel about their actions being referred to as heroic, how this term may affect mental health and how they personally want to be remembered. IWM London will host the lecture, The poppy in to wear or not to wear?
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The Observer Media Group Inc. We use technology to collect information that helps us enhance your experience and our products and services. The cookies we use help us understand what information and advertising are most useful and valuable. Please take a moment to review our Cookie Policy and Privacy Policy. By clicking "Accept," you agree to our use of cookies and similar technologies. Updated p. The story originally said that sum was for the parking lot alone.
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November 22, The House met at 10 a. Speaker: Resume debate on second readings of public bills. Speaker, there has been a request for leave for Bill to be called first and we are in agreement with that, if you can canvass the House. Speaker: Is there agreement to call Bill first? Leanne Rowat Minnedosa : Mr. Speaker, I move, seconded by the Member for Steinbach Mr.
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