Coroners and Justice Bill

In moving Amendment 178 I shall speak also to Amendment 179 with which it has been grouped. I declare an interest as honorary vice-president of English PEN, a council member of Justice which, together with the Index on Censorship, Article 19, Liberty and the National Union of Journalists, brought forward these amendments. I pay tribute to my colleague Dr Evan Harris, the MP for Oxford West and Abingdon, who introduced the amendments in the other place. It is my understanding that the right honourable Jack Straw, the Lord Chancellor and Secretary of State for Justice, agrees that there is no basis for keeping the laws of seditious libel and criminal defamation on the statute book and that there would be a benefit in setting an example to oppressive regimes which use similar offences to silence dissent by repealing them. We hope that the Minister will support us. I shall give a little background to this. The common law of seditious libel prohibits all writings and other utterances which tend to bring about hatred or contempt for the king, the Government or the constitution as by law established. Sedition consists of any act done or word spoken or written and published which has a seditious tendency, and done or spoken or written and published with a seditious intent. In 1792, Thomas Paine was convicted for seditious libel on the ground that the Rights of Man brought into hatred and contempt the present sovereign, the king and the Parliament and this kingdom, and the constitution, laws and government thereof. In the Satanic Verses case, in which I appeared for Salman Rushdie’s publishers, Viking Penguin, an attempt was made to persuade the Divisional Court to do to Salman Rushdie what was done to the publisher of Tom Paine’s seditious writings. Happily, it failed. Sedition was used in British India and elsewhere in the British Empire to suppress and punish political dissent. The most notorious examples were the trials of the Indian nationalist teacher, social reformer and independence fighter, Bal Gangadhar Tilak, convicted and imprisoned for 18 months in 1897 for publishing an article alleged to have been an attempt to bring the Government into hatred and contempt. Tilak was convicted and imprisoned again for sedition at a historic trial in 1908. His last words on the jury’s verdict were: ""I maintain that I am innocent. There are higher powers that rule the destiny of men and nations and it may be the will of providence that the cause which I represent may prosper more by my suffering than my remaining free"." Tilak spent six years in the Mandalay prison in Burma and, like Gandhi, shaped the future of India’s independence movement. In one of his great works, Make No Law, Anthony Lewis, the Pulitzer prize-winning journalist and historian of free speech, recalled the history of President John Adams’s Sedition Act 1798 which echoed our common law. It made it an offence to, ""write, print, utter or publish … any false and malicious writing or writings against the government of the United States, or either House of the Congress … or the President … with intent to defame … or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either of them, the hatred of the good people of the United States"." The Sedition Act aroused the opposition of Jefferson and Madison. The Virginia Resolutions protested that the Act, ""ought to produce universal alarm, because it is levelled against the right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed the only effectual guardian of every other right"." It gave Madison’s view that the American system was "altogether different" from the British system, ""because the people, not the government, possess the absolute sovereignty"." Earlier, Madison said in the House that, ""the censorial power is in the people over the Government, and not in the Government over the people"." In 1963, in the landmark case of the New York Times v Sullivan, the American Supreme Court, led by Justice Brennan, decided that the First Amendment protected free speech and had to be read as Madison read it, and held as unconstitutional an Act of Congress that had expired 163 years before, as well as rejecting it for use in libel law. In Justice Brennan’s words: ""What a State may not constitutionally bring about by means of criminal statute is likewise beyond the reach of its civil law of libel. The fear of damage awards … may be markedly more inhibiting than the fear of prosecution under a criminal statute"." In this country, there have been few efforts in the past century to invoke sedition in our courts. Sedition was used to convict Aldred in 1909 for seditiously printing in the Indian Sociologist an article advocating Indian independence published by Indian students in Britain. It stated that political assassination was not murder and glorified an Indian student who had killed Sir Curzon Wylie as a martyr for Indian rule. In 1947, the conviction failed to convict James Caunt, the publisher of the Morecambe and Heysham Visitor for writing and publishing a seditious libel concerning Jews. That failure led to the enactment of the first law against racial incitement, Section 6 of the Race Relations Act 1965, which was strengthened in 1968. More recently in the Salman Rushdie case, there was an attempt to punish him and the publishers of the novel Satanic Verses for sedition as well as blasphemy. Given its uncertain bounds, it is not surprising, as Sir David Williams QC has observed, that the corollary of its decline has been the readiness of Parliament to intervene by statute to combat particular manifestations of what might have been covered by the common law offence. The Public Order Act has been used repeatedly to add a series of hate-speech crimes, one of which we have just debated—incitement to racial and religious hatred, homophobic hate speech and so on. There are new terrorist offences as well, including that of glorifying terrorism. They amply cover the manifestations covered by this archaic offence. More than 30 years ago, in 1977, our Law Commission expressed its view that the common law offence of sedition was ill defined and unnecessary. Then, in 2007, the New Zealand Law Commission, whose president was Sir Geoffrey Palmer, the former Prime Minister and distinguished jurist, published a report entitled Reforming the Law of Sedition. Sir Geoffrey explained in his letter to the Minister that the commission had concluded that the width of the offences meant that they were, ""an unjustifiable breach of the right of freedom of expression. Furthermore, the linguistic over-inclusiveness of sedition means the offences lack clarity. They have the potential for misuse. Indeed, they have been inappropriately used in New Zealand in times of political unrest and perceived threats to established authority. They have been used to fetter vehement and unpopular political speech. The time has come to remove the seditious offences from the New Zealand statute book. We recommend repeal"." His letter concluded, ""In a free and democratic society, defaming the government is the right of every citizen. In times beset with threats of terrorism we should not close the open society. To do so would only encourage its enemies. In New Zealand, free speech and public debate must be ‘uninhibited, robust and wide open’, and it may include ‘vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials’, as Justice Brennan of the United States Supreme Court once put it"." Sedition was abolished in New Zealand in 2007 by the Crimes (Repeal of Seditious Offences) Amendment Act, and criminal libel, which I will come to, was abolished in 1992 in the Defamation Act. The same is surely as true of our country as it is of New Zealand and the United States. This House has a fine record of protecting freedom of expression, notably by drawing the sting of the offence of incitement to religious hatred and in deciding to abolish the close relative of seditious libel, also developed in the Court of Star Chamber, the common law offence of blasphemous libel. There is one further important reason for repealing these offences. Across Europe and the Commonwealth, similar offences exist and are used to suppress political criticism and dissent. If our Parliament takes this step, it will be an example elsewhere and might also encourage the European Court of Human Rights to adopt a robust position in reviewing such laws and their operation. I turn to Amendment 179 on the related subject of criminal libel. I shall take this as briefly as possible. Criminal libel, like seditious libel, is an archaic and outdated offence that unduly restricts free speech. It is all set out in the textbook Gatley on Libel and Slander, and I shall deal with the bare bones of it. The publication of written defamatory words is a common law misdemeanour in England and Wales, punishable on indictment with a fine or imprisonment. The publication of a libel known to be false is a separate statutory offence under Section 4 of the Libel Act 1843, which Amendment 179 would also repeal. Oral defamation is not a crime except for reading aloud a written libel and, by the Theatres Act 1968, for the publication of defamatory words in the course of a play. What, then, are the differences between the crime of libel and the tort of civil defamation? Broadly speaking, the publications that are the subject of civil and criminal libel are the same. There are some circumstances in which a communication can amount exclusively to criminal libel, and the opposite is also true. When the offence of criminal libel was developed by the Court of Star Chamber early in the 17th century, the rationale was the need to protect social order. Its object was to prevent public disorder through violent retaliation and duelling. More trivial matters were left to be dealt with as civil matters. These days, however, it need not be shown that criminal libel is likely to disturb the peace or provoke a breach of the peace, so the original rationale no longer applies. I shall not trouble your Lordships with the differences in any detail, but, in the past six decades, the number of trials for criminal libel has fallen sharply. There were four prosecutions from 1948 to 1975. Between 1970 and 1983, there were five committals for trial; between 1984 and 1995, 13 people were found guilty or cautioned; between 1996 and 2001, five were found guilty or cautioned. Five libels were reported to the police from 2002 to 2007. Two were found guilty up to the end of 2006. In 1985, the Law Commission published a report, concluding that criminal libel should be replaced by limited statutory offences. None of the Law Commission’s proposals has been implemented. Since 1985, it has become clear that, because of the rare prosecution of the crime and the lack of any determination to modernise it, it would be better simply to abolish it. This proposal was endorsed by the Calcutt committee and the Supreme Court Procedure Committee’s report on practice and procedure in defamation. Gatley notes that, even if there were to be a new offence on the lines originally proposed by the Law Commission, it would still, according to the Privy Council in the Hector case, amount to a, ""grave impediment to the freedom of the press if those who print, or a fortiori those who distribute matter reflecting critically on the subject of public authorities could only do so with impunity, if they could first verify the accuracy of all statements on which the criticism is based"." Other common law jurisdictions have undertaken the reform. Criminal libel is not an offence in Scotland, and it was abolished, as I have said, in New Zealand in 1992 after two controversial cases. The offence survives in Northern Ireland, although there is only one recorded case within living memory. In Canada, the Canadian Law Reform Commission has called for its abolition, and it has been criticised by the judiciary there following the guarantee of freedom of expression in the Canadian charter of rights. The common law version of criminal libel has been largely curtailed in the United States, where concerns have been expressed about the inherent vagueness and breadth of the crime and its compatibility with the First Amendment’s demand for free speech. It has been generally accepted that there remains little constitutional vitality to criminal laws. The New Zealand committee on defamation took account of five reasons for a criminal law of defamation being undesirable. They were: first, conduct ought not to be criminal unless it is the cause or potential cause of significant harm to society or the individual citizen; secondly, the criminal law should not be invoked for trivial problems; thirdly, the limited resources available for control of crime are better directed to serious crime against the person, his property or the maintaining of peace; fourthly, the criminal law has traditionally proscribed serious anti-social activity—except in so far as defamation could lead to a breach of the peace, it is not protecting society but the narrower, individual interest in reputation; and, fifthly, it inhibits freedom of speech and public criticism. That was the view of the New Zealand commission, which was then translated into practice by its Parliament. One of the major problems with criminal defamation is the possibility of a harsh sanction: up to a year in prison or two years and an unlimited fine where it is proved that the defendant knew the matter published to be false. The threat of such penalties has a severe chilling effect on the right to free speech. The UN special rapporteur on freedom of opinion and expression, the OSCE representative on freedom of the media and the OAS special rapporteur for freedom of expression have all called on states to repeal all criminal defamation laws in favour of civil defamation laws. Similarly, the UN Human Rights Committee has repeatedly expressed concern about the use of custodial sanctions for defamation. It is well established under human rights law that the guarantee of free speech requires states to use the least restrictive effective remedy to secure the legitimate aim sought. Our civil defamation laws provide adequate protection—some would say too adequate—for defamation. The original justification for criminal defamation, the need to protect public order, no longer stands. There are other adequate criminal offences, such as the harassment provisions in the Public Order Act, which draw a fair balance between protecting individuals and the right to free speech. Like the international human rights experts, the editors of Gatley are unenthusiastic about any need to retain the outmoded common law offence of criminal libel. I respectfully suggest that we follow the example of New Zealand and elsewhere and set an example to the rest of the world by laying it, as well as seditious libel, to rest. I beg to move.