Michael Gove, Leveson, and the case for liberty
Yesterday, the Secretary of State for Education Micharl Gove gave a spirited defence of freedom of speech. He was a Roundhead surrounded by Cavaliers; a Whig amongst Tories; a radical nonconformist in a sea of conservative catholics. His speech is not available (yet) on YouTube, but here is a quite marvellous exerpt of the transcript:
MR GOVE: ...I think the general case for free expression has to be restated in every generation, because we all collectively benefit from a feeling that we are and shouldn't be inhibited in stating our views on whatever platform is available to us on matters that engage us.
LORD JUSTICE LEVESON: Mr Gove, I don't need to be told about the importance of free speech. I really don't. But I am concerned that the effect of what you say might be that you are fact taking the view that behaviour which everybody so far in this Inquiry has said is unacceptable, albeit not necessarily criminal, has to be accepted because of the right of free speech. Is that right?
MR GOVE: I don't think any of us can accept that behaviour necessarily, but there are a variety of sanctions. There is social ostracism, disapproval. There is the penalty that someone pays who chooses to use a commercial outlet to publish that which is inappropriate or distasteful. But by definition, free speech doesn't mean anything unless some people are going to be offended some of the time.
LORD JUSTICE LEVESON: Don't you think that some of the evidence that I have heard from at least some of those who have been the subject of press attention can be characterised as rather more than "some people are going to be offended some of the time"?
MR GOVE: I'm sure that there are cases where journalists and others will behave in ways which are deplorable. The question remains, however: what is the most effective means of ensuring that individuals do not behave in a deplorable fashion? It's often the case that individuals reach for regulation in order to deal with failures of character or morality, and sometimes that regulation is right and appropriate, but some of us believe that before the case for regulation is made, the case for liberty needs to be asserted as well.
LORD JUSTICE LEVESON: Well, I think I've spoken about liberty and I'm not going to repeat myself. I am concerned that over the last 50 years, there have been repeated concerns about the conduct of the press, repeated chances, opportunities, last chances, to quote a former secretary of state, then further incidents -- the death of Princess Diana -- then further problems -- and I've passed Calcutt 1 and Calcutt 2 -- and here we are, yet again, with a real public concern about how certain parts of the press are behaving. Now, do you dismiss that public concern as something which should be put entirely subject to the freedom which I absolutely endorse, the freedom of speech?
MR GOVE: No, I think there is undoubtedly real public concern and I think you are quite right to say that that public concern has existed over the last 50 years. I think that that public concern pre-dates the last 50 years. I would simply say that when we're thinking of what the means of addressing that concern should be, that we should think carefully about the effects of regulation in the same way as a legislator, when any particular proposal is put before them to deal with a particular evil, thinks: is this legislation necessary or proportionate? Is it the right remedy for the particular problem that's been identified? And I'm unashamedly on the side of those who say that we should think very carefully before legislation and regulation because the cry "Something must be done" often leads to people doing something which isn't always wise.
LORD JUSTICE LEVESON: Well, I am prepared absolutely to agree that I should think carefully about the effect of anything I suggest, and believe me, I am thinking very carefully. I equally accept that one can't knee-jerk react. The dangerous dogs legislation of which several people have spoken may be thought to be an example. I'm not saying it is, but it may be thought to be an example. But would you agree that in the context of the repeated concern, time after time -- and it may be more than 50 years, you may be absolutely right -- does suggest that where we are now is not entirely fit for purpose?
MR GOVE: I think the situation now is certainly not ideal and there are abuses. This Inquiry has heard about them. They have caused widespread public disquiet. My instinct is, if we look over time at how we have reacted to other abuses and errors and crimes that have been identified, there has been a tendency -- it hasn't applied in every case but there has been a tendency to meet that particular crisis or scandal or horror with an inquiry. That inquiry has come up with recommendations, some of those recommendations have been wise and thoughtful, others perhaps less so. But what has subsequently happened is that the regulation or the intervention which has flowed from that inquiry has then been gold-plated and applied in such a way as, in the terms that I used in my speech to the press gallery, to be a cure worse than the disease, and in my speech to the press gallery, I mentioned the way in which the vetting and barring scheme had grown and the way in which the Every Child Matters agenda had grown, and the way in which the Food Standards Agency had grown to interpret its brief in a particular way. Now, those were three examples where I believe -- and it's perfectly open to others to disagree with me passionately, obviously -- but where I believe that an unfortunate tendency arose, which is a belief that we could, you know, mitigate against the evil which is inherent in human nature by setting up bureaucratic bodies or enacting regulation.
LORD JUSTICE LEVESON: Right. Well, in the same way that you recognise others are entitled to their view, you are absolutely entitled to your view and I welcome it, and I was keen to make sure that it was appropriately discussed by the Inquiry. I would further agree that bureaucracy is extremely unsatisfactory and that laws don't necessarily solve problems. But if some sort of regime is to be in place -- and you may say that we don't even need a PCC, that it should just be a free-for-all. But if you don't take that view -- and I'll be interested to know if you do -- then there has to be some structure -- not corrected to content, I entirely agree -- that permits those who wish to complain that their liberties are being interfered with, that their rights have been infringed in order they can 62 obtain redress, hasn't there?
MR GOVE: Yes, I do believe -- the first thing that I would say is that there is a case for reform of the law itself and certainly for reform of the law of defamation. I think it's also the case that there's an evolving jurisprudence as a result of the ECHR as we balance the right to a private life and the right to free expression, and I follow that debate with interest. And it's certainly the case that there may be room for improved regulation. All I would say, and sought to say, is that the experience that we have of regulation over certainly the last three decades is that sometimes good intentions can result in the curtailment of individual freedom and they can also result in an unrealistic expectation of how individuals behave.
MR JAY: So are we clear then, Mr Gove, from your speech, that you were throwing up ideas for consideration and making it clear that in your view there was a burden of proof to be discharged before freedom of speech was impeded or restricted by regulation, rather than setting up a final position which effectively said, "Freedom of speech is preeminent, touch it at your peril"; is that it?
MR GOVE: Yes. I have a strong -- some might call it a bias, a prejudice, a predisposition to favour free expression, but by definition, one of the reasons that I favour free expression is that I believe that it is through public debate, the clash of ideas, that we can arrive at a better form of governing ourselves, a better method of helping the next generation and it's entirely possible -- it's happening often enough -- that I will be proven wrong in open debate and it may well be that the fears that I gave expression to in this speech prove to be phantoms.
MR JAY: Because, of course, under the ECHR, as you mentioned, if you're outside the realm of Section 12 and interim injunctions as you well know, Article 8 and Article 10 have the same status, don't they?
MR GOVE: Again, you're more of an expert than I am. I have followed the debate but I cannot follow it with the degree of authority that you can, Mr Jay. But it is the case, yes. I have seen people wrestling with the equal weight given, as I understand it should be, to both articles.
MR JAY: One might be forgiven, reading these words, that -- not that I mean this abusively; this is straight out of JS Mill -- that Article 10 is being given a predominant status, particularly the last paragraph of your speech. Would you agree with that observation?
MR GOVE: Yes, I would agree with it except in one regard. I don't think it's at all abusive to be compared to JS Mill.
MR JAY: No, I wasn't intending to convey that. I reassure you of that. I think that's probably as far as we can take this, Mr Gove. You're expressing a cautionary view and that's where we are, is it?
LORD JUSTICE LEVESON: I think we can go a little bit further. Let's just test a couple of those ideas. One of the possible ways forward that I have been considering is to reflect upon the very real cost of litigation and to reflect also upon the inability for those who are not of substantial means to obtain redress for sometimes destructive invasions of privacy or libels. That has led me to consider and to suggest -- and I've not reached any conclusions as yet -- that some sort of mechanism could be devised which allows for small claims to be resolved outside the court and to enable people to obtain swift redress. Of course, that would require consensual submission but it would enable both the individuals and the press to save a great deal of money, and it might also encourage responsible titles to join a new regulatory regime that enforces the code. Would you consider such an appropriate desirable or not?
MR GOVE: At first blush, it seems fair, but the devil would be in the detail.
LORD JUSTICE LEVESON: I recognise that issue, but I'm not dealing with the detail at this stage. If one did visualise such a system, which also provided redress by way of apology or publication of a correction, as the PCC presently does, would you agree that it would be sensible, if not imperative -- but let's say sensible -- that all responsible titles signed up to it?
MR GOVE: I think there is a lot of merit in newspaper titles that consider themselves to be responsible, holding themselves publicly to a high standard. Absolutely. The only additional note that I would enter is that as the nature of the modern media changes, the definition of what is a title inevitably changes with it.
LORD JUSTICE LEVESON: No, no, I agree with all that and I've had the debate of everything from the conversation in the pub, through Twitter, through blogs. I'm on top of that additional complication. No, that's not the true. I'm aware of the additional complication. But assuming that such a system could be devised, where the detail did not create the concerns that you are obviously wary of, as you identify, and assume also that one could articulate a respect for the freedom of expression which is your fundamental starting point, in the same way that, as I explained, section 3(1) of the Constitutional Reform Act recognises the importance of the independence of the judiciary -- it's a statutory recognition of that fact, so one could equally have a statutory regulation -- wouldn't one need, in order to provide the form of small claim redress court, some statutory framework not to touch what's happening, not to touch content, not to touch the decision-making but simply to permit enforceable decisions to be made in this not formal -- ie not court system -- set-up?
MR GOVE: I can see the merits in the case that you're putting forward. I'd have to give it appropriate consideration. A couple of thoughts occur to me. The first is that part of the case that you make is a case for reform of the law of defamation in order to make it easier for people to have access to the redress that that can give. There's another concern as well. There must inevitably be a grey area where you or I might consider that something was inaccurate or indeed offensive or intrusive, but the newspaper, journalist or blog concerned would disagree, and I'm not sure how such a dispute would be easily resolved.
LORD JUSTICE LEVESON: Well, we have that today, don't we, with the Press Complaints Commission?
MR GOVE: Indeed.
LORD JUSTICE LEVESON: And they resolve it, and it's resolved by a body that is, at least in part, entirely independent of the press and, speaking for myself, I don't immediately see a problem. There will always be issues and provided one is being careful to respect the importance of freedom of expression, but equally to weigh the importance of privacy rights or other Article 8 rights, then that balance has to be made by somebody. Somebody has to make a decision. If you come to court, it's a judge. It could equally be, in an arbitral system, a combination of those who represent the industry, those who are independent, bringing a different judgment, a public judgment, to bear on where the line is, bearing always in mind the importance of free expression. But balancing. That's what we do all the time.
MR GOVE: It may be the case that some titles would willingly join 0 in such an arrangement, and that they would consider it to be a badge of pride that they were willing to abide by such an arrangement, but it may be the case that there are other titles or writers or websites that may say, in a way: "We regard that as a cartel arrangement and we wish to be buccaneers, outside it." Would such an arrangement apply to a journal like Private Eye, for example?
LORD JUSTICE LEVESON: Well, Private Eye would have to decide. What I might suggest to them, or to such a buccaneer -- I don't know whether Mr Hislop would call himself a buccaneer; perhaps he would -- that if you deprive the public of the opportunity cheaply of obtaining redress and you say, "No, if you want to obtain redress, you're going to have to start very expensive proceedings, and if you can't afford it, that's just too bad", then it may be the court could then say, "Well, fair enough, if the paper is right, if we agree with the paper on this particular occasion, fine, then they succeed, but if we don't agree with the paper, then there is a risk that, for example, exemplary damages might flow because the paper could have had this resolved very easily in a different system", and then Private Eye would have to decide: do we want to be inside the system or outside the system?
MR GOVE: Absolutely, but Private Eye might decide that this system is a less effective and speedy way of giving redress to those who legitimately have concerns about what we've written than our editor, exercising his own judgment, and in that sense we're saying that a particular method of organising one part of an industry is preferable to a different method, within that broader industry, of co-ordinating their affairs. Now, it may be that we decide that that is appropriate, but it's undeniably the case that people who take a libertarian view would be sceptical.
LORD JUSTICE LEVESON: Yeah, well, they may be sceptical and that libertarian view, they must accept, if they're wrong and so they've created additional cost, they'll have to pay for it.
MR GOVE: It's arguable. What I infer from what you've said -- and I'd have to give it proper consideration -- is that the law would punish those who chose not to enter a voluntary method of regulation.
LORD JUSTICE LEVESON: I don't use the word "punish" actually quite in that way. What I say is that if there is a sensible, approved system cheaply for resolving complaints, those who choose not to take advantage of the system must expect to be visited with the additional cost that is as a consequence created.
MR GOVE: All I would say is that -- sensible to whom? Approved by whom? If the court says that you must be part of this voluntary association, otherwise you pay a particular price, then the law is making the judgment between one method of remedying problems, which is -- by its definition, it has to be a voluntary arrangement if it's going to work -- and other methods. As I say, I think it's an interesting idea which clearly deserves careful consideration, because I can see the merits behind the case, but I can also see some dangers, and those dangers would be the creation of a club of which you have to be a member if you are not to face more serious punishment in the courts if you happen to make a mistake.
LORD JUSTICE LEVESON: Or more serious cost, certainly.
MR GOVE: Quite. Costs as a punishment.
LORD JUSTICE LEVESON: The whole point is to avoid everybody -- I mean, it's not actually my mission in life to deprive lawyers of money, but it's not a bad idea in this field, where a lot of people actually can't afford to take on the press.
MR GOVE: Well, I think you're absolutely right, and the prior point that I made is that we do need to look at the law of defamation. There are at least two problems with the existing law of defamation. One is that it costs a great deal for the average citizen to bring action. The other is that the wealthy can use the courts to silence dissident voices, and we have had situations where citizens from other jurisdictions have used the English courts in order to silence people who have been drawing attention to wickedness, tyranny, corporate malpractice and all the rest of it. So I absolutely accept that the law of libel is inadequate at the moment, both in terms of redress and in defending free expression. The proposition that you put forward is undoubtedly a thoughtful -- it's not for me to say it's thoughtful; it's manifestly a thoughtful and significant way of addressing the problem, but I'm not certain that the case is made.
LORD JUSTICE LEVESON: Well, we'll have to see. Everybody will approach these issues from a slightly different perspective and reach their own conclusions as to the way forward, but I do not hear you suggesting that there should be a complete free-for-all.
MR GOVE: No. I think that it's important that we ask ourselves: what are the means, whether it's changing the existing law or looking to other remedies, for dealing with this issue? My point is not to argue for a specific end-slate, to say that there should be a free-for-all or that there should be this method of regulation. Quite properly, this Inquiry will come forward with recommendations, having taken time to listen to the evidence from many witnesses. My intervention in this debate was a reflection of my view that when faced with the case for regulation, the case for liberty sometimes needs to be asserted as well in order to ensure that the public debate around the Inquiry's deliberations is as plural as possible.
LORD JUSTICE LEVESON: That's precisely why I was keen that you have the opportunity to develop your thoughts in the same forum as everybody else.
MR GOVE: And I'm very grateful to you for that invitation.
LORD JUSTICE LEVESON: It's obviously not straightforward. If there was an easy answer to any of it, then there would be an easy answer. Actually, the solution that I'm talking about might also help in relation to the attempts by the very wealthy to muzzle, but we'll have to see. Mr Gove, thank you very much.
MR GOVE: Not at all. Thank you.