The Big Questions: When does bigotry become defamation? Should marijuana be legal?

This week's questions are answered by barrister and Labour peer Baroness Kennedy

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The Independent Online

Under the new Defamation Act, claimants need to show “serious harm”. How do you view this change?

Claimants should have to show serious harm for a successful claim. Energetic debate is a vital part of our democracy. It cannot be enough for people to claim hurt feelings or insult, even when debates descend into the gutter. I was brought up in Glasgow where sectarianism was rife, but we learned that shrugging it off was the best defence. The law is rarely the answer to the ignorance of bigots, racists, homophobes and misogynists. There are better ways to take them on.

Colorado has followed Uruguay in legalising the sale of marijuana. Should the UK think again?

I think marijuana should be legalised. I would start with making it available on prescription for people with MS and other painful illnesses. The amount of police and court time wasted on low-level personal drug use is crazy and we should watch the US and learn.

The amount of time migrants have to wait before claiming benefits has been lengthened to three months. Does that seem right to you?

It is reasonable to expect people who have just arrived to wait before claiming benefits. But I think some provision should be made for exceptional cases, such as someone who suffers an accident, becomes unwell or is rendered unexpectedly destitute. Common humanity would make allowance for exceptional circumstances.

The Government is considering US-style 100-year sentences for some murderers. What is your view?

The suggestion is absurd. It is an irrational response to a perfectly reasonable judgment from the European Court of Human Rights which said people given whole-life sentences should have the right to a review after 25 years. Why would the court make such a decision? Because its judgments guide all 47 nations that belong to the Council of Europe – not just the UK – and in places like Russia people get “life” too readily and are sent to remote prisons and forgotten about. There is a hysteria being inflamed about the ECHR at the moment to satisfy the right wing of the Conservative party.

The Scottish independence referendum is this year. What future do you want for the country in which you were born?

I am not a nationalist and I hope Scotland remains within the UK. But many in Scotland are disillusioned with Westminster politics. I hope Labour makes some clear, bold statements about addressing inequality and excites people about a different kind of politics and a different future. Scotland should become properly devolved and its parliament given greater powers. My hope is that the referendum is lost but that there will be a UK-wide constitutional convention, in the aftermath, to rethink how the UK might be governed in a federal landscape.

You have campaigned against female genital mutilation, and now MPs on the Home Affairs Committee are looking into why there have been no UK convictions. Can it achieve what you would like?

FGM is child abuse, pure and simple. The fact that some women in the communities concerned accept, condone or even perform the mutilation does not alter the fundamental purpose of this violation – the subjugation of women to men and the denial of female sexuality. Getting evidence is hard. Speaking out usually only occurs once people are adults and brave enough to challenge their own communities. Like domestic violence, rape and other abuses in the private realm, the evidential problems are because witnesses are afraid or made to believe it is normal. I am just pleased that the taboo is being lifted and there is a serious effort at education on the subject. Prosecutions will follow that.

It is eight years since you chaired the Power inquiry into the state of UK democracy. Have we become any more democratic in that time?

Society has not become more democratic. Real power is increasingly in the hands of a few. Members of the general public feel the financial and corporate world dictate terms to the political class while their voices are not heard. It is why they see no point in voting and feel increasingly disengaged.

You are said to rebel against your party whip more frequently than any other Labour peer. Can you explain that? I rebelled often during the Blair years because so many terrible things were being done to civil liberties and to law. Labour ratcheted up prison numbers and screwed up the probation service. I am afraid it was my own party that started the business of destroying legal aid. They locked people up without trial and tried to detain suspects without charge for 90 days. They introduced secret trials. They wanted to remove benefits from people who missed a day of their community service. I could go on. I have absolutely no regrets about my refusal to support such disgraceful legislation.

Do the travails of Nigella Lawson suggest witnesses need more protection in court?

The legal system did not fail Nigella; her former husband did. His email allegation that she was addicted to cocaine opened up an inevitable area of cross-examination, which was unquestionably relevant to the case against her two former assistants. What the trial should tell everyone is that cameras in the courts would have made this even uglier. This is the stuff the television companies want. Their demands should be resisted.

Baroness Kennedy is a barrister and Labour peer