Sunday, 3 October 2010
Last week I was instructed by Sally Bercow to defend her against a libel threat by Migration Watch and Sir Andrew Green.
The news of my firm's appointment is here and the legal correspondence has been published by Richard Wilson here. Richard has also posted an interesting account of the background to the libel threat.
Coverage of the breaking news of the threat was provided by Index on Censorship, New Statesman, The Lawyer, Liberal Conspiracy, and The Guardian. There were then a number of good follow-on blogposts, most notably from Teekblog and Heresy Corner.
This is not the place for me to discuss the substance of the libel threat against Sally Bercow. However, it may be useful to contextualise this case with others which have been featured on this blog.
To begin with, let's consider the following four statements:
"The British Chiropractic Association claims that their members can help treat children with colic, sleeping and feeding problems, frequent ear infections, asthma and prolonged crying, even though there is not a jot of evidence. This organisation is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments."
"- didn't know there was a Scientology 'church' on Tottenham Court Road. Just hurried past in case the stupid rubs off."
"Crap! Robin Hood Airport is closed. You've got a week... otherwise I'm blowing the airport sky high!!"
"This right wing think tank Migration Watch has conducted a study which has revealed that youth unemployment is down to migration which is obviously grossly simplistic. The main reason for youth unemployment is the recession which was caused by the bankers and the bankers are more responsible than the migrants, and it’s fairly dangerous propaganda this kind of story. It is exactly what Mosley said in the 30s and Hitler argued in Germany."
On the face of it these four statements have nothing in common.
However, in respect of each of these statements, someone somewhere has thought the statement to be of such a nature that the coercive power of law should be used against the statement's author.
As it happens, the authors of these statements - respectively Simon Singh, John Dixon, Paul Chambers, and Sally Bercow - are all decent and courageous individuals unwilling to just accept what the law could inflict on them.
But in each of the first three cases, it was not easy.
Simon Singh had to endure an adverse first instance High Court decision before the Court of Appeal took a more sensible view. Likewise, John Dixon had to put up with a frankly bizarre finding by the Welsh Public Services Ombudsman before the wiser heads at Cardiff Council dismissed the complaint. The appeal by Paul Chambers (another of my clients) is part-heard, and one can only hope that his conviction by the Magistrates' Court is overturned.
It really should not be so difficult to defend free expression; but to do so is time-consuming and costly. Simon Singh lost two years of his writing career; Paul Chambers has so far lost two jobs.
And it is deeply disappointing how much disregard there is by public bodies and the courts for free expression. The High Court in Simon Singh's case and the Welsh Public Services Ombudsman with the complaint against John Dixon could not have made the decisions they did had they placed any proper emphasis on the basic value of free expression in a democratic society.
The most depressing aspect about the predicament of free expression in the United Kingdom is not that for so many statements there is someone out there who wants to "ban" them but that there are so many officials and servants of the state - police officers, prosecutors, libel judges, district judges, ombudsmen - who will casually supercharge such illiberalism with the coercive force of law.
None of the four quoted statements are particularly glamorous; but then they were not intended to be so.
None of the authors of the statements had any inkling of the legal consequences which would follow their utterance. But like a sinister (but equally pathetic) version of Monty Python's Spanish Inquisition, someone somewhere was able to get the law to burst in and disrupt the lives of the statement's author.
In each case the statement's author could have then taken the path of least resistance; indeed, I suspect dozens of people do so every day. Simon Singh and Sally Bercow could have "apologised"; John Dixon could have shown "remorse"; Paul Chambers could have maintained a "guilty" plea. And, in each case, no one would have really blamed them.
It is all so saddening.
Nick Cohen once said that you have to take your free speech cases as you find them and then get what victories you can. Not every free expression issue means defending Galileo, DH Lawrence, or Lolita.
Indeed, none of the four quoted statements are, by themselves, of great interest.
(Personally, I have no interest in alternative medicine (apart from when its practioners misuse libel, hence I know about homeopaths and chiropractors, but nothing about acupuncturists and Reiki therapists); I do not think the beliefs of Scientologists any more or less credible than those of Christians or Muslims, though the practices and tactics of Scientologists are extremely worrying; the joke of Paul Chambers was ill-conceived; and I have no special interest in Migration Watch, though they are against my own general preference for unrestricted migration.)
But it is the statements' lack of interest which provides their significance; these are - or should be - everyday statements, uninhibited by legal threats and certainly free from legal consequences.
And it seems only by the slow and painstaking process of catching instances where the law is being used (or threatened) in an illiberal and misconceived way, and then working to reverse those instances, that the culture of "banning" speech acts can be challenged.
It would be ideal to have, at a stroke, the United States' First Amendment guarantee of free speech introduced into the United Kingdom. That is not, however, practical politics.
But our "banning" culture in respect of free expression is not inevitable and can be reversed; there is no good reason why the first reaction of so many people to unwelcome statements is to get the law involved, and then there is no good reason for so many police officers, judges, and officials to allow them to do so.
So the libel threat against Sally Bercow is, for me, another example of something which is horribly wrong in our political and legal culture.
She is, for some, a controversial figure. (And I am certainly not a fan of her political party and their complete disregard after 2001 for civil liberties.)
Sally Bercow could have just quietly apologised, perhaps with the pre-prepared humble apology which was attached to the threatening letter.
But she chose not to do so.
She has chosen instead to make a stand for her right as a political commentator to respond to news stories in the way she did. She wants to show how threats like this to political commentators - and also journalists - support the need for libel reform.
And I think this is rather heroic, and so Robert Dougans (also instructed) and I are delighted to be able to assist her.
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