My Lords, I am so glad that the noble and learned Lord, Lord Brown, has just made that very important contribution. I agree with all of it and therefore I can be extremely brief. I could add recollections from my own casebook of cases where juries were wholly inappropriate. The particular one I have in mind is the Convery case in Northern Ireland, but I will not go into that now.
I want to make only a couple of points. The first is that in the 19th century, Albert Venn Dicey said in his Introduction to the Study of the Law of the Constitution that the best safeguard of free speech is the English jury, which is far better than all those charters of rights, whether continental or American. That was the view at the end of the Victorian era, and Fox’s Libel Act did of course place great emphasis on the role of the jury. It was that Act, as Sir Brian Neill reminded me, that led judges to be very concerned about not giving rulings on meanings too early because they did not want to interfere with the jury. I was surprised to discover, when acting for newspapers, that they no longer believed that trial by jury was a good safeguard of free speech. They preferred the reasoned judgment of a single judge which could be appealed, because it was a reasoned judgment, to the unreasoned and incapable of being appealed judgment of a jury. In my Private Member’s Bill, with Sir Brian Neill as my guide, I took the step of saying that, not always but normally, trials should be by judge alone and not by jury.
Much to my surprise, the free speech NGOs and others, with the one exception being Liberty for reasons I understand, all supported it, as did the entire press. I note, of course, what Alan Rusbridger has said, but I do not agree at all with making a special case for celebrity public figures. As the Minister will remember, recently in another context the House agreed to abolish the old common law offence of scandalising the judiciary.
The Law Commission agreed with that, as did the senior judges. It could not be seen why senior judges should be made a special case to be protected from gross offence, rudeness and attack when nobody else could be. Were we to approve this amendment, we would be saying that there was a special privileged class, called the great celebrity or public figure, who were to be given special point under the legal system. That would create completely the wrong impression.
One of the most important reforms is abolishing a presumption of trial by jury. The reason is that that then enables the Government, in their procedural changes, with the judges’ co-operation, to make all kinds of changes that would not be possible if the normal mode was trial by jury. This is an extremely significant clause and I very much hope that the Government hew to it without amendment.
5.15 pm