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Sunday, 3 October 2010

Defending Sally Bercow


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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22 comments:

AllanW said...

Wholly agree with the free speech principles you are working for David whilst at the same time being equally saddened that the response to Bercow's simplistic Godwinning isn't the universal disdain such inept and dull commentary deserves.

Anonymous said...

Well said, this is a the thin end of the wedge. I have noticed an increasing trend to use privacy laws and defamation to strangle free speech. Not to protect individuals, but frequently to protect the corporate image of an institution or celebrity.
While there are many sensible judgements, there is something very rotten at the core of our society and unfortunately this is being reflected in the application of the law.

Joseph K.

Steve Jones said...

Anybody who has read the Sally Bercow stuff can clearly see there isn't even the slightest chance of any case being brought being successful. Quite what Andrew Green was thinking of, I cannot imagine. Sally Bercow didn't say he was a fascist, just that Migration Watch was using arguments which were misused by the Nazis.

I should add that I'm not a great fan of Sally Bercow. I tend to find her political analysis shallow, and her prominence more a product of celebrity culture than anybody with anything insightful to say. The invocation of the Nazis into an argument always has the alarm bells ringing as Mike Godwin, with his eponymous law, noted. Of course it didn't start there - Student politics of the 70's and 80's was riddled with accusations of people being "fascists" or "nazis".

When it comes to freedom of speech, then there's more than just the law to consider. In American academia it was rife. Anybody who has read "HIGHER SUPERSTITION: the academic left and its quarrels with science" will have read about cases where freedom of expression in science was compromised by politicised academics. Malcolm Bradbury satirised something very similar in "The History Man" when radical students and academics campaign to exclude a perceived racist geneticist from giving a lecture. Not wholly fictitious. Alan Davies, in his recent TV series on his radical youth recounted a similar story.

In the case of the co-founder of Migration Watch, Professor Andrew Coleman, there was a campaign to have him ousted from his post at Oxford University. Indeed the campaigner, and author, Teresa Hayter openly concludes Andrew Coleman as a eugenicist due to his membership of the Galton Institute, which means that my namesake, the geneticist Steve Jones and a well known liberal and humanist, also qualifies as such as he was chairman. Of course as originally founded, it was called the Eugenics Institution, but based on the name of my old college, which I share, with Simon Singh, we are both Imperialists. Organisations change - the Britain of today is not that of the Victorians, or Georgians.

This is the quite astonishing piece by Teresa Hayter

http://www.guardian.co.uk/commentisfree/2007/mar/16/watchingdavidcoleman1

I think there is also a danger that there will be use of no-doubt well meaning equality regulation will act against freedom of speech. There is plenty of legislation out there which has that potential and there have been a couple of misconceived (love that word) attempted prosecutions.

Personally I would like to see the assumption of a right to freedom of expression, and that it should only be subject to law in narrow and well-defined cases. Freedom of expression means nothing if it is confined only to anodyne expressions considered acceptable to all. The proper way of addressing perceived insults is through debate and discussion. Those acting in quasi-judicial manners who also act to use coercive means to suppress such freedoms ought to be answerable for this and, ultimately, subject to judicial review.

Don Cox said...

"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."

Well, it should be. Once the libel laws are fixed, this ought to be the next step. I am getting tired of living in a country without free speech.

Simon said...

I am very pleased you have taken this on, but saddened that after the other cases you cite that it should even be necessary.

Its notable how the, "Political correctness gone mad" commentators have been very quiet about this case.

John said...

Sally Bercow clearly only has the vaguest idea of what Hitler said... as is typical of those who invoke Hitler in politics (see USA). But of course her stupidity shouldn't be a criminal offence.

Dr Howard Fredrics said...

Free speech has taken quite a hit in the past couple of days. Have a look at the case of Raphael Golb, the son of Dead Sea Scolls scholar, Prof Norman Golb.

http://www.washingtonpost.com/wp-dyn/content/article/2010/09/30/AR2010093005071.html and
http://blog.simplejustice.us/2010/10/01/golb-convicted-making-sockpuppets-criminals.aspx

Lloyd Jenkins said...

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.)
That's somewhat unfair. There were declarations of incompatibility post-2001 and Labour changed the law to deal with them. You've also chosen a time frame that deliberately excludes Labour's great contribution to the civil liberties (the HRA).

On a libel-related note, if @SteveJones is right and this claim doesn't have any merit, would increased protection for freedom of speech deal with the problem? People could still threaten to sue, even if they couldn't win.

Harbo said...

AllanW
We must defend not only offensive speech but dull and lazy speech, its the best way to avoid the midnight tap on the shoulder, by the thought police in all their versions.
Disdain is allowed even encouraged, especially when "Godwin's law" is involved

Gordon Rae said...

Sally Bercow is not the first person to acknowledge a link between immigration, rhetoric, and Sir Oswald Mosley. Home Secretary Alan Johnson made the same point in July 2009. On that occasion, Sir Andrew Green made a contribution to the debate - here is a report in the Daily Mail - but said nothing to suggest that he found anything defamatory in the Home Secretary's published opinions.

plkrtn said...

That's somewhat unfair. There were declarations of incompatibility post-2001 and Labour changed the law to deal with them. You've also chosen a time frame that deliberately excludes Labour's great contribution to the civil liberties (the HRA).

So basically, you are saying that the Labour party post 2001 had to remove civil liberties to protect us? That is a dodgy position to take.

I don't think it is unfair that he states post 2001, as the HRA came in 1998 and therefore it was something David seems to agree with. However, you can have as many HRAs as you like when you're suggesting that we should hold people for 14, 28, 56, or 90 days without charge, or allowing the police to stop and search without any suspicion or evidence. Requiring the filing of a protest form to protest in Parliament Square. Control orders on people who haven't been charged including house arrest and tagging... The fact that you can't get yourself removed from the DNA database when even proven innocent.

Human Rights Act is all well and good, but when you take those rights away with laws that supercede it, then its nothing more than a slip of insignificant paper.

Beatrice Bray said...

Good luck to Sally Bercow but could I urge readers to see free speech as more than a slogan. It is not just a phrase to parrot as an excuse to impose your views on everyone else with no consideration for their rights or their patience.

I saw in a tweet, retweeted by David Allen Green, a call that we should support the right to abuse. Now I do wonder whether David thought that one through. That phrase does not appeal to people who have been abused publicly or privately or indeed many people with a human heart.

So in your zeal to support Sally Bercow I urge everyone to hold back from abuse of Sir Andrew Green, tempting though that may be. Just because he wants to administer punishment on Sally Bercow does not make it right for Sally's supporters to do the same thing to Sir Andrew. The truth should suffice. It does not need elaborating, especially in this case.

Rather than embrace the freedom to abuse I would rather embrace the freedom to laugh. I have only met Robert Dougans briefly. He is one of Sally Bercow's solicitors. He can be extremely funny and entertaining. Humour can be far more effective than bile in a libel case.

james c said...

I haven't read the MW report, but doubt that it would be easy to defend her words that it is 'dangerous propaganda'. I am a non-lawyer and will watch with interest.

SadButMadLad said...

Guido Fawkes mentions the issue and backs the case that the case should not succeed.

http://order-order.com/2010/10/01/sallys-loose-tongue/

Ian H Spedding FCD said...

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.

I have long felt that it is a national scandal that Her Majesty's subjects have been denied a statutory guarantee of basic human rights equivalent to that enjoyed by US citizens since 1791.

Are we to assume that Article 10 of the European Convention on Human Rights does not offer the same protections under British law as does the First Amendment in US law?

Dr. Brian Blood said...

The formal response to the original letter of complaint (and proposed letter of apology) seems, to me, to sum up the position 'in law' extremely clearly.

However there are situations where a client is bent on 'recourse to the law' whatever the cost, whatever the merits, whatever the time involved.

It is said that the English are partial particularly to the 'underdog' and the 'persecuted'. Nothing engenders more a sense of persecution than being on the losing side in a piece of litigation: I would note the increase in sympathy for Simon Singh's legal predicament as he was forced to suffer each adverse judgment.

Maybe we are seeing a new tactic - the Pyrric defeat - where the political benefit to the loser, who has instigated the action, outweighs the costs.

I believe that those promoting changes in libel law and in the adminstration of cases involving libel need to be aware of litigation that has been launched with a perverted sense of 'political advantage' rather than a genuine interest in justice.

Simon Too said...

Beatrice Bray is so mistaken. Freedom of speech to say what is right, what is accepted, what is elegant or what is a jolly good joke is not much of a right. Freedom of speech has to be the right to say the wrong, the contentious, the ugly and the downright witless jape.

It is not a matter of defending someone's right to say what you wished you had said - it is the defence of their right to say someting you are proud you would never say.

Abuse is unpleasant (if it's not, it's not abuse) but the law should not be enforcing good manners.

With freedom of speech comes the the expectation that just having the right to say something is an inadequate justification for actually saying it; but we are back on the territory of manners.

Lloyd Jenkins said...

@plkrtn
Human Rights Act is all well and good, but when you take those rights away with laws that supercede it, then its nothing more than a slip of insignificant paper.

I agree that some of their conduct was wrong, but my point was that Labour reacted to it when they heard that the law was incompatible with fundamental rights (E.G. the A case).

The HRA is an ongoing project: there tons of law changes to protect ECHR rights post-2001. Your (and JoK's) argument seems to take none of this into account. In doing so -I'd posit- you're being a poor skeptic, and leading yourself to a false conclusion.

Alex said...

As Dr Blood says the problem here does not appear to be one of law, but of the fact that cases without merit may be started with impunity and have already probably cost Mrs Bercow many thousands of pounds.

Whilst I support a much clearer public interest test to make it plain at the outset that such cases should not proceed this is insufficient. The act of sending such a letter without merit should be subject to punitive damages on the complaining party and the solicitors drafting such a letter should routinely have their practice certificates withdrawn. Until some of the well reported firms in Private Eye are threatened with closure for their part in undermining our democratic rights, then these letters will continue to get sent, whatever the statute that governs the likelihood of an eventual case suceeding.

I know David is always quick to blame 'the system' rather than individual judges, solicitors or baristers, but until these 'professionals' are held to account for this abuse of law I fear nothing will be done.

Beatrice Bray said...

To secure Sally Bercow's freedom of speech she needs to defend herself in court and outside court in the court of public opinion. Wit will do her more service than bile. She and her lawyers will score more points if they make clear the absurdity of this case.

Of course I grant that Simon Too has the liberty to disagree with me but if you are faced the practical business of protecting free speech a bit of courtesy and humour never comes amiss. The law may not demand good manners but if you wish to win the legal and media battle a bit of respect pays.

If you know anything about the history of defamation you will know that some of the most memorable cases are exceedingly funny. I do not know whether this case has the potential to be such a classic but Sir Andrew does seem to take himself rather seriously. Simon be serious if you please. I would rather be amused.

Moriarty yaffle said...

Like some others, the Godwin thing makes me uncomfortable. But a reading of the documents satisfies me that this was not a knee-jerk equation of 'anyone who talks about immigration is a nazi' and that the discussion was chiefly around the way in which the research had been reported in the press.

Given that Ms Bercow was speaking in a capacity of providing opinion and comment on newspapers, the views expressed must, it seems to me, be comment. Additionally, I am not sure that there is defamation at all - the remark about the think tank itself that they are 'right wing' is hardly capable of being defamatory (and if it is, our political programming is going to be severely neutered) and the remarks about the far right were attributed to the sensationalist reporting of matters criticising immigration, rather than the think tank.

I initially began by being of the view that even if it were not actionable, and that supressing free speech was distasteful, that Ms Bercow had been rash in invoking the Godwin comparison, but I have to say that the defendant's response letter has drawn my sting even on that. A masterful piece of drafting.

mummyinlaw said...

The libel reform I would like to see would be availability of public funding for claimants. Defamation actions are currently for those who can afford to protect their good name, but for less well-off individuals who may have experienced damaging unfounded allegations which could affect many aspects of their lives from career to family relationships, their only recourse is a CFA if they are lucky enough to get one, otherwise they are stuck.