Privacy and Injunctions - Evidence - Parliament

Ministry of Justice and Department for Culture, Media and Sport—Written evidence
Evidence of Lord Neuberger, Mr Justice Tugendhat, Lord Woolf Sir Stephen
Sedley and Sir Charles Gray to the Draft Defamation Bill Committee on 6 July
2011
Q634 The Chairman: It falls to me to ask the last question, as we appreciate that you
have pressing demands on your time and we agreed to finish by 10 o clock. Sir Anthony
Clarke gave evidence to the Commons Culture, Media and Sport Committee in 2009. He
was questioned about Articles 8 and 10 of the Human Rights Act, and particularly the
importance of Section 12. This came to mind when you, Sir Michael, used the phrase
freedom of expression on quite a number of occasions. In areas that may go beyond
defamation, I suspect that it will not come as a huge surprise to you that you could probably
find people at both ends of the corridor in this building who feel that notwithstanding the
fact that we have to balance Articles 8 and 10, that we are part of the Convention and all the
rest of it perhaps the courts have not given quite as much expression to the application of
Section 12 as Parliament might have had in mind when bringing it forward. Does Parliament
need to restate Section 12 in a new Bill to give better protection for the freedom of
expression that Sir Michael referred to? Of course, I am talking primarily in the context of
this legislation.
Lord Neuberger of Abbotsbury: For my part, I am very chary of expressing a view on this.
The short answer, even if it is slightly trite, is that if Parliament comes to the conclusion that
the judges have either misinterpreted or misapplied Section 12, or the section is not doing
its job in the sense that the judges have got it right but it is not doing the job intended by
Parliament it is for Parliament to decide what to do about it and, in particular, whether to
change the law by amending Section 12 or repealing it and re-enacting it in a different form.
But we then trespass into the area of policy. As a judge, I would be very chary about that.
However, Sir Michael may be braver than me.
Mr Justice Tugendhat: My recollection is that Section 12 was much debated before it went
into the Human Rights Bill and nobody knew whether it would work. It is true that in one
sense it has not worked. The reason why it has not worked to the extent that it has not is
that there is a tension between it and the earlier provisions of the Act. It is impossible to
enact the European Convention and then include a provision that seeks to give a different
emphasis to the different Convention rights from what would be given otherwise. This was
foreseen at the time by many people and I do not think that it is any surprise to lawyers
interested in this field of the law that Section 12 has not achieved what its promoters would
have wished, but how could it?
Sir Stephen Sedley: … The previous witnesses were asked about Section 12 of the Human
Rights Act. Sir Michael Tugendhat made the important point that Section 12 is intended to
try to stop judicial intervention at an early stage of what may well be a serious libel. The risk
it takes is that it itself may be in violation of the Convention. You have to read Section 12
and Section 13 in the light of Section 3 of the Act. That may be one reason why it does not
seem to be having the prophylactic effect that its movers intended it to have.
Q638 The Chairman: In that case, what might this Committee recommend to
Government to restore what Parliament probably intended when it put in Section 12, even
though we are now being educated on why that was never likely to be as effective as
Parliament wanted it to be?
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