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Lord Lester of Herne Hill
My Lords, I beg to move that this Bill be read a second time. Its central aim is to reform English defamation law so that it strikes a fair balance between the fundamental right to freedom of expression and public information and the protection of a good reputation. It seeks to give better protection to free expression, while ensuring fairness and responsibility in journalism, and necessary protection of the right to a good reputation. It is a measure of the importance of the Bill's subject-matter that so many noble Lords, from such a rich diversity of knowledge and experience, are taking part. At least as many others have expressed regret that they are unable to be here to support the Bill. We will be enriched by two maiden speeches—from the noble Baroness, Lady Hayter, a long-standing champion of consumer interests, and the noble Lord, Lord Willis, who has, among his other qualifications, chaired the Commons Science and Technology Committee.
I believe strongly in self-regulation, provided that it is supervised by an independent Press Complaints Commission, able to provide effective access and to avoid unnecessary litigation. I am therefore glad that the noble Baroness, Lady Buscombe, will be able to explain what she sees as the role of the PCC in relation to the Bill. I hope that it will not be necessary to have a statutory commission and hope that the PCC may have an enhanced role which commands wide public confidence.
The unsatisfactory state of English defamation law is notorious and well recognised both here and abroad. It suffers from the twin vices of legal uncertainty and over-breadth. It has failed to adapt to the changed world of communication by means of the internet and worldwide web. The litigation it engenders is costly and often protracted, and it has a severe chilling effect on the freedom of expression not only of powerful newspapers and broadcasters, but of regional newspapers, NGOs and individual public critics. That chilling effect, well recognised by our most senior courts, encourages self-censorship and impairs the communication of public information about matters of legitimate public interest and concern.
Last year, Parliament abolished criminal libel. But the fear of damages and massive legal costs induced by civil libel law is markedly more inhibiting than the fear of criminal prosecution. It is the NGO, the whistleblower or the citizen critic who tends to take the line of least resistance by censoring information and opinions which the public have need to know. Many examples are likely to be given in this debate.
The Liberal Democrat autumn 2009 conference called for the,
“protection of freedom of expression by reforming the libel laws of England and Wales to ensure a better balance is provided between free speech, responsible journalism, scientific discourse and the public interest on the one hand and powerful corporations, wealthy individuals and vested interests on the other”.
After a public campaign which mobilised 52,000 people across the country, all three main political parties recognised in their recent election manifestos that defamation law needs further reform. The coalition Government have pledged to reform the law to protect freedom of speech.
The Bill recognises that defamation law serves an important public interest in protecting a person's good reputation against unfair attack and calumny. It seeks to strike a fair balance between free expression and the protection of one's good reputation. That is why the Bill does not, as some free speech NGOs would wish, follow the American approach and tilt the burden of proof away from those responsible for defamatory publications.
The Bill has not been designed by or for the media or to permit irresponsible journalism. It has been developed crucially with the expert advice of Sir Brian Neill, the distinguished Lord Justice and editor of the leading textbook on defamation, and Heather Rogers QC, a libel law specialist. Sir Brian, who I am delighted to say is present for this debate, chaired the Supreme Court Procedure Committee on Practice and Procedure in Defamation, whose report was implemented five years later by the noble and learned Lord, Lord Mackay of Clashfern, in his Defamation Bill in 1996. As the noble and learned Lord, Lord Hoffmann, once noted, Sir Brian Neill’s knowledge of libel law is second to none. At the end of his recent lecture on so-called “libel- tourism”, the noble and learned Lord, soon to speak in this debate, explained that he did not want to suggest that English libel law was perfect. We look forward to hearing his views about what is wrong with the current law.
In preparing the Bill during the past eight months, I have also been helped by advice from a coalition of NGOs: English PEN, Article 19, Index on Censorship, Sense About Science, and in-house lawyers from the BBC, the Guardian and News International. I am grateful to all of them and to former parliamentary counsel, Stephanie Grundy, who has drafted my previous Private Member’s Bills, and to Joanna Dawson, who has led the work in my parliamentary office. However, I emphasise that responsibility for the Bill is mine.
The Bill covers a technical and specialised area of law that has been developed largely by the courts for centuries with little intervention by Parliament. However, the underlying issues are of constitutional importance and concern matters of public policy. They are within the proper province of Parliament as well as the courts. Yet, remarkably, this is the first occasion in modern times on which Parliament has had the opportunity to examine the substance of English defamation law. The Bill does not impose a rigid and inflexible code. It provides a framework of principles and rules within which courts interpret and apply the law on a case-by-case basis. It builds on what is best in current law, and brings that law up to date with the effects of electronic communication via the internet.
I have published full Explanatory Notes setting out the background history, the state of the law and the changes proposed by the Bill. The notes are important in unpacking the Bill’s contents and I hope that they will be read within and well beyond this House. We also have the benefit of a useful note prepared by Mr Patrick Vollmer of the House Library staff.
Although the Government cannot, of course, commit themselves to the detailed provisions of the Bill, I hope that the Minister will be able to indicate that the Government share the aims of the Bill set out in paragraph 7 of the Explanatory Notes—namely, to,
“strike a fair balance between private reputation and public information as protected by the common law and constitutional right to freedom of expression … modernise the defences to defamation proceedings of privilege, fair comment, justification, and innocent dissemination, in accordance with the overriding requirements of the public interest … require claimants to demonstrate that they have suffered or are likely to suffer real harm as a result of the defamatory publication of which they complain … require corporate claimants to prove financial loss (or the likelihood of such loss) as a condition of establishing liability … encourage the speedy resolution of disputes … make the normal mode of trial, trial by judge alone rather than by judge and jury … enable the Speaker of either House of Parliament to waive Parliamentary privilege as regards evidence concerning proceedings in Parliament; and … modernise statutory privilege”.
The Bill does not cover media intrusions on personal privacy, data protection and breach of confidence, which are beyond its scope. Nor does the Bill deal with the regulation of costs in defamation proceedings for which statutory powers exist, and will, I trust, soon be exercised to tackle the abuse of conditional fee agreements and success fees. CFAs mainly benefit wealthy claimants and their lawyers, and result in unjust enrichment and inequality of arms.
The coalition Government’s programme rightly promises to protect historic freedoms through the defence of trial by jury, which is an important safeguard in serious criminal cases. Jury trial has been abolished for most civil cases but is retained for libel cases. It is important for juries to be retained for some cases of defamation, but the presumption should be that the normal mode of trial will be by judge alone. That will promote effective case management and encourage the early settlement of cases without need for costly and protracted litigation. I note that Justice, the advisory council of which I am a member, favours that, whereas Liberty, of which I am a friend, takes a traditional view in favour of trial by jury. I do not think that one could manage to reform this area without changing the presumption.
The European Parliament’s Committee on Legal Affairs published a working document on 22 June on the law applicable to non-contractual obligations, known as Rome II. In it, the Committee mistakes me for the Earl of Leicester, and describes my Bill as a measure that,
“counteracts libel tourism with cost-cutting measures such as the abolition of jury trials”.
However, the Bill does not abolish jury trials. Nor does the change in relation to jury trials address so-called “libel tourism”. The same working document argues complacently that no new provisions are needed to deal with defamation via the internet or what it describes as the,
“much maligned multiple publications rule”.
I am glad that the Minister, my noble friend Lord McNally, replied to my Written Question on Wednesday that the Government, like the previous Labour Government, are committed to protecting free speech against unnecessary interference from the European Parliamentary Committee and the European Commission.
Turning to the Bill’s contents, I will briefly refer to the passages in the Explanatory Notes where they are described in more detail. This will enable me to speed up.
Clause 1, paragraphs 47 to 60, define the defence of responsible publication on a matter of public interest. It builds on the common-law defence developed in Reynolds, emphasising the need for flexibility in taking account of the circumstances of publication, ensuring that the defence can cover expressions of opinion as well as assertions of fact, and making clear that the defence applies to neutral reportage. I am glad to note that yesterday the Constitutional Court of South Africa, led by Justice Kate O’Regan came to a similar conclusion in a matter of South African constitutional law.
Clauses 2 and 3, paragraphs 61 to 71, rename the defence of fair comment as “honest opinion”. The clauses strip out unnecessary technical difficulties and make the defence user-friendly. They update and simplify, clarifying what the defendant must prove to establish a sufficient factual basis, and stating the elements of the defence in clear terms.
Clauses 4 and 5, paragraphs 72 to 83, rename the justification defence as a defence of truth. They update and clarify the defence in significant respects, making it clear that the defence is based on proof of the substantial truth of what has been published and that this can be not only where the defendant proves the truth of some, but not all, of a series of allegations, but where the defendant proves the truth of some, but not the whole, of a single allegation.
Clauses 6 to 8, paragraphs 84 to 98, cover statutory privilege. Absolute privilege is preserved for fair, accurate and contemporaneous reports of court proceedings. This privilege is extended to various international and regional courts across the world.
Clause 7 gives effect to the recommendations of the Joint Committee on Parliamentary Privilege and the Culture, Media and Sport Select Committee of the other place, by replacing the Parliamentary Papers Act 1840 with a modern provision, emphasising that reports of parliamentary proceedings are privileged and that this cannot be fettered by court order.
Clause 8 and Schedule 1 update the qualified privilege scheme under Schedule 1 to the 1996 Act. The present state of the law on statutory qualified privilege lacks logic and is internally inconsistent. The new schedule resolves these inconsistencies.
Clause 9, paragraphs 99 to 109, determines responsibility for publication. It replaces the innocent dissemination defence under the 1996 Act, setting out a framework of liability for publishers which is capable of dealing flexibly with technological advances in the transmission and storage of information, providing that those involved in these activities should be liable only in circumstances in which they exert some influence or control over the content of the publication. That is particularly important in the modern technological age.
Clause 10, paragraphs 110 to 121, deals with the problem that each fresh communication of defamatory material is treated as a new publication, and so gives rise to a separate cause of action. It creates a single publication rule for the original publisher but the court may disapply this rule where it would be contrary to the interests of justice. This would allow publishers to retain archives without the fear of open-ended liability, while leaving open the prospect of redress for claimants in appropriate cases.
Clause 11, paragraphs 122 to 129, prevents a corporate claimant bringing an action in defamation unless it can prove that it has suffered, or is likely to suffer, financial loss. There would clearly be arguments about whether one should go further than a corporate claim, but that is a Committee point.
Clauses 12 and 13, paragraphs 130 to 144, deal with the problem of claimants who bring cases where there is nothing substantial at stake. The clauses require the court to strike out claims where no substantial harm has been caused, or is realistically likely to be caused, to the claimant’s reputation by the publication; and to consider whether substantial harm has been caused to the claimant’s reputation in the jurisdiction, taking account of the impact of publication elsewhere.
Clauses 14 and 15, paragraphs 145 to 156, reverse the presumption in favour of jury trial to promote effective case management and to reduce costs in defamation cases.
Clause 16, paragraphs 157 to 159, gives effect to the recommendations of the Joint Committee on Parliamentary Privilege, made in March 1999, that Section 13 of the 1996 Act be replaced with a provision empowering each House to waive Article 9 of the Bill of Rights of 1688-89 for the purpose of court proceedings where the speaker would not be exposed to any legal liability. The authoritative Joint Committee was chaired by the noble and learned Lord, Lord Nicholls of Birkenhead, and included the noble and learned Lords, Lord Archer of Sandwell and Lord Mayhew of Twysden, the noble Lord, Lord Waddington, and Lord Wigoder. It received evidence from our most senior judges as well as the Law Officers.
I am grateful to the Minister and his excellent team of advisers for having met to discuss the Bill in advance with me and my team. I have explained that there needs to be full public consultation on the issues raised by my Bill, either by means of a Select Committee on the Bill, or on a draft Bill fashioned by the Government that builds on our work. The preparation of wise and enduring legislation takes time and needs to be based on informed consultation outside as well as within Parliament. This House, with its great expertise, has a special role to play, but so does the other House. In my view, the best way ahead would be a draft government Bill, subjected to pre-legislative scrutiny by a Joint Committee of both Houses, resulting in a Bill that would begin its passage in this House. If the Bill is read a second time today, I hope we may work with the Government to achieve balanced legislation of which we may be proud and which may become a model across the common law world and beyond. I beg to move.
Baroness McIntosh of Hudnall
My Lords, standing up at this point in such illustrious company teaches me the perils of asking to speak early in a debate. Be careful what you wish for. However, it gives me an opportunity to be the first to congratulate the noble Lord, Lord Lester, on bringing forward the Bill and to say how much I am looking forward to the maiden speeches of my noble friend Lady Hayter and the noble Lord, Lord Willis, both of whom, I am sure, will make distinguished contributions to the debate, no matter how nervous they are feeling at this moment.
I know that the House is hugely indebted to the noble Lord, Lord Lester, not only for this Bill but for other pieces of enlightened legislation for which he has been responsible in the past. I hope that if the Bill or something like it is enacted, his name will be for ever attached to it. Given the number and quality of the speakers the noble Lord has attracted today, I am aware that I can contribute little more to the debate than my support for his enterprise. I do so with great humility, having no special experience or expertise—only a long-standing awareness of the inadequacies of the current state of the law. Those inadequacies are hugely magnified now by the impact of the internet.
I come from a background in theatre and the performing arts. You might think that it is an area wherein the laws of defamation would not have any particular traction, but, of course, they do. I spent a significant part of my time while I had executive responsibility for theatres worrying about the work of playwrights who were writing about contemporary events or living people, and whether those writings might incur the kind of action which this Bill is partly designed to prevent. However, it is not new writing that I want to quote from in starting my remarks; it is old writing from probably the best of old writers; namely, William Shakespeare. At a crisis moment in Act 2 of his great play Othello, Cassio—who is one of several hapless victims of Iago’s malice—says:
“Reputation, reputation, reputation! O, I have lost my reputation! I have lost the immortal part of myself, and what remains is bestial”.
These are very powerful words. They reminded audiences then—as they still do—how vulnerable and exposed we are when our reputation is called into question, even when, like Michael Cassio, who was induced by Iago to drink too much and started a fight, we are partly the architects of our own disaster; the more so when we are not. That phrase,
“the immortal part of myself”
is peculiarly resonant, so it is perhaps no surprise that, historically, reputation has been defended at least as fiercely as property—it seems to be what duelling was mostly about, for example—or that the urge to defend even indefensible reputation has led people to bring libel actions—I think of Oscar Wilde, but there are other notable examples—with disastrous consequences. Therefore, it is no surprise also that over time the law has developed strong protections for those who are attacked in this way. Loss of reputation is no small matter.
But who is being protected by the law as it is applied today? It seems pretty clear from what we have heard from the noble Lord, Lord Lester—I am sure that we shall hear much more of the same from other noble Lords as the debate continues—and from the mass of evidence provided by the many individuals and organisations supporting the introduction of his Bill, that it is not always the right people. As the noble Lord has pointed out, this Bill is not intended to limit the ability of those, whether individuals or corporations, who have been defamed to go to law, but it is intended to bring some balance into a system which presently favours the plaintiff in libel cases—as is plainly evident from the amount of so-called “libel tourism”—not only because the burden of proof lies with the defendant but because the costs of mounting a defence are so prohibitively high that those accused often prefer to settle out of court.
I am particularly concerned about the effect on writers and publishers, among whom the “chilling” effect already referred to by the noble Lord, Lord Lester, has become a serious problem. Although the full impact of self-censorship is impossible to quantify, it is plainly at work, judging from the evidence collected not only by the noble Lord but by the many supporters of his campaign. I draw your Lordships’ attention, for example, to a briefing I received yesterday from Mumsnet.com, somewhat to my surprise as I did not have them down as particularly given to sedition. But there we are; what do I know? They support the Bill but make the point that there is further to go in protecting websites such as theirs. They say:
“Mumsnet welcomes this serious engagement with the need for reform of our antiquated libel laws ... However we are sorry to see that the Bill does not provide explicit cover for hosts of third-party content. Sites like Mumsnet provide a great deal of authored editorial information, as well as hosting unmoderated discussion; as such we are concerned that our status as innocent facilitators (as opposed to editors or primary publishers) is unclear. A statement in the Bill that ‘hosts of unmoderated third-party comments will be considered innocent facilitators’ would clarify matters. If uncertainty remains and the Bill becomes law we are concerned that Mumsnet would have to continue to remove potentially defamatory material, even when we are not convinced that it represents a breach of the law, thus severely curtailing freedom of speech”.
We should particularly note the words “continue” and “potentially” in this submission. Caution is already the watchword of these people and many others. When the noble Lord replies to the debate, will he say whether there is any reason why the Bill, or a subsequent Bill, should not be amended to meet this point?
The Libel Reform Coalition, to which the noble Lord, Lord Lester, has already referred, made up of Index on Censorship, Sense About Science and English PEN, among others, tells us in its excellent briefing:
“Fighting a libel case in England costs 140 times the European average and routinely costs £1M”,
and that,
“out of 158 cases from 2008 identified in Justice Jackson's review of civil litigation costs, none was won by the defendant”.
I do not want to take up time citing examples of recent cases although, having had the privilege of working with Dr Simon Singh when we were both trustees of NESTA, I watched the progress of his recent appearance before the courts with dismay, even though he won his case. Nor can I add anything to the important questions around legitimate defences or jury trial versus hearing before judge alone, with which the Bill deals and the noble Lord, Lord Lester has outlined. I simply observe, before sitting down, that the figures from the briefing to which I have just referred are enough on their own, even without all the other evidence before us, to indicate that something is grievously wrong. Writers on all subjects—scientists, biographers, reviewers—now live in a world where avoiding the risk of libel action is more important than telling the truth. This is a bad state of affairs. The enactment of the Bill, or something like it, would go a considerable way to putting it right. I wish it a fair wind from the Government, who really should take this opportunity to do something about a long-neglected problem, and a safe passage through your Lordships’ House and beyond.
Lord Hoffmann
My Lords, the House is greatly indebted to the noble Lord, Lord Lester, for raising the subject of defamation law for debate. I look forward to the contributions of the noble Baroness, Lady Hayter, and the noble Lord, Lord Willis. I made my maiden speech in this House on the Second Reading of the Defamation Bill in 1995, so I know something of how they feel.
There are provisions in the Bill which I think are excellent reforms and which I wholeheartedly commend to the House—for example, the clause which says that a corporation cannot sue for defamation unless it proves that it has suffered, or is likely to suffer, financial loss. There seems to me a great difference between the reputation of an individual and that of a corporation. An individual’s reputation is part of his personality. It is what the noble Baroness, Lady McIntosh, in her Shakespearean quotation, called his “immortal part”. He feels the pain when a slur is cast upon it. A company’s reputation, on the other hand, is a commercial asset. It is what brings in the customers, and the company does not suffer as long as they continue to come, so it should not be able to sue unless it can show that it has suffered financial loss.
Then there is the clause that gives effect to the recommendations of the Joint Committee on Parliamentary Privilege about defamation of Members of this House or the other place in relation to their parliamentary duties. That too is an improvement in the law. In 1995, when I moved the amendment which became Section 13 of the Defamation Act 1996, I did so because I thought it was unfair that Mr Hamilton should have no right to clear his name of allegations of parliamentary misconduct. He was entitled to his day in court like anybody else. If he was innocent, he should win, and if he was guilty he should lose. As it happens, the jury disbelieved him and he lost, but that does not affect the principle that he should have been entitled to sue. The Joint Committee agreed that in principle a Member of one of the Houses of Parliament should be entitled to clear his name. However, it drew attention to some defects in Section 13 and recommended that it be replaced by a provision which is now part of this Bill. There is a lesson for us here. I am sure that the noble and learned Lord, Lord Mackay of Clashfern, who piloted that Bill through the House, will agree that Section 13 was hastily put together at the last minute, and that hasty reforms tend to cause trouble.
It is for that reason that, on reading this Bill, I had some misgivings about some of its provisions. I was greatly relieved when my noble friend Lord Lester said at the end of his speech that he did not envisage that it would become law in its present form, but that there would be a process of debate and consultation and possibly a draft Bill, perhaps even an expert committee. My difficulties were not matters of detail which could be considered in Committee, but raised more general questions of legislative policy. I cannot help feeling that there has been something of a campaign over the past year or two by the media to push us into rapid action. Most of that campaign has been concerned with the way in which defamation actions are funded, particularly with conditional fee agreements and their expense. That is perfectly true—it is a great difficulty that needs to be addressed. However, it is not addressed in this Bill, and quite rightly so because the noble Lord, Lord Lester, says that it is not within its scope.
This campaign has been fuelled by hostile criticism of our law by the media in the United States. Our defamation laws do not seem to be any more popular than our oil companies in the United States. But that campaign has been seized upon by the press in this country as demonstrating that our law is in need of urgent reform. It is important to disentangle those parts of the argument which have some merit from those which, in my opinion, have none.
The law in the United States is extremely favourable to the media. A person who is categorised as a public figure, which tends to include almost anyone the press would want to write about, cannot sue for defamation unless he can prove that the writer actually knew what he was saying was false. That is almost impossible to prove. No matter how slipshod the journalism, the publisher has a complete defence. That has been in the law in the United States for more than half a century and it is now firmly settled. I make no criticism of it; no doubt it suits them. But so far as I can tell, it is unique in the world. Courts in this country, Canada. Australia and New Zealand have all been urged by media organisations, naturally, to adopt that rule, and they have all rejected it as giving too little consideration to the right to a good reputation. As one Canadian judge put it:
“An individual’s reputation is not to be treated as regrettable but unavoidable road kill on the highway of public controversy”.
Instead, we have adopted a public interest defence: it is a defence that the article or the book which is complained of was about a matter of public interest and that its research and preparation was in accordance with reasonable, responsible standards. That was the rule laid down by this House in its judicial capacity in the Reynolds case and it was strengthened in the Jameel case. I think that that rule strikes a fair balance between the right to a reputation and the public interest in having information on matters of public interest. It has recently been adopted in its entirety by the Supreme Court of Canada. But there is a clash of cultures when publications by Americans, emanating from America, are disseminated in other countries and Americans are sued for libel there. Of course the internet has made it extremely easy to defame people all over the world from a website in the United States. The American reaction has been to protest vigorously that other countries should adopt the American rule, or at any rate should not apply their own rule to Americans. They do not think that our public interest defence is good enough, and this of course has been seized upon by the media in this country, which would naturally prefer to have the American rule. Indeed, they would prefer to have no law of libel at all, as evidence that our rules are too restrictive and that the balance ought to be tilted in favour of the media, as it is in the United States.
I am relieved to see that my noble friend’s Bill does not accept this argument. But I am slightly puzzled by what it does do—which is to take the public interest defence, as laid down by your Lordships’ House in Reynolds and Jameel, and restate it in its own language. I am always nervous, speaking as a former judge, about legislative attempts to restate rules of common law. They lead to expensive litigation over whether or not Parliament intended to change things. As the Jameel case appeared to be generally welcomed by the press and has been followed by the Canadians, I should have thought that there was a case for leaving well alone.
It is said that in practice the public interest defence is not as useful to the media as might have been hoped. That may be true, but it is not easy to say why and certainly there is nothing in the Bill that identifies some aspect of the public interest defence that needs to be changed. As stated in the Bill, it is all much the same. I suspect, on a purely anecdotal basis, that part of the difficulty for the media lies in the expense—which the noble Baroness, Lady McIntosh, alluded to—of mounting a public interest defence, which often means that a newspaper which would have had a perfectly good defence prefers to pay some damages and settle. If that is right, the problem lies not in the public interest defence but in the costs regime for defamation actions. We simply do not have enough information to know how to address the problem, and I think that it would be a pity to muddy the waters of the substantive law if the solution lies elsewhere.
The other prong of the American reaction has been to say that we should not allow Americans to be sued in our courts for libels emanating from the United States. Legislation has been proposed in Congress to enable Americans to sue before an American jury for three times any loss they claim to have suffered because of being sued for libel in a foreign court. This seems to me an extraordinary example of American extraterritoriality—something which they are very fond of, and something of which I hope the Minister has taken note. If the legislation passes Congress, any UK citizen who attempts to defend his reputation in this country against a libel emanating from the United States would be liable to a triple-damages action in a US court. The proposed American legislation makes no distinction between actions in foreign countries brought by nationals of those countries and actions brought by others.
Of course, attention has been concentrated here on actions brought against Americans by people living abroad. They are called libel tourists. The leading American campaigner, Dr Ehrenfeld, was sued in this country by a Middle Eastern businessman against whom she had made extremely serious allegations that he was a financial supporter of terrorism. There are certain aspects of this cause célèbre about which your Lordships might wish to know. First, the law in this country is that if you have a reputation here which has been significantly damaged, you can sue here. It does not matter that the defamation was sent into this country from abroad. Nor do you have to be a British citizen. That is not only our domestic law but, in cases that have a European element to them, it is binding on us by virtue of the decision of the European Court. In this case, the claimant moved in business circles in London; he had a house here, and he had a reputation here. Secondly, much has been made of the fact that only 23 copies of the book were sold in England. But the material was also published on the internet. One also has to bear in mind the sensible remarks of my noble and learned friend Lord Bingham of Cornhill, who said in another case:
“The law would part company with the realities of life if it held that damage caused by publication of a libel began and ended with publication to the original publishee. Defamatory statements are objectionable not least because of their propensity to percolate through underground channels and contaminate hidden springs”.
Thirdly, Dr Ehrenfeld made no attempt to set aside the proceedings or to defend them in any way. They came before the judge entirely undefended.
This American campaign, which is usually conducted under the banner inscribed “libel tourism”, is actually about Americans being sued by anybody abroad, whether nationals or tourists. Perhaps that is why the New York legislature, when it passed a law making foreign libel judgments unenforceable, called it the Libel Terrorism Act, because suing Americans abroad is a form of terrorism. Whether libel tourism properly so called—that is, actions in England brought by people who have no connection with this country—is a serious problem is debatable. It was debated fairly inconclusively in the Lord Chancellor’s Libel Working Group just before the election. Mr Justice Eady, the senior libel judge who sees libel cases all the time, said that it was not a phenomenon that he came across in his daily life.
Previous reforms of the defamation law have been preceded by the report of an expert committee. As I said, I am anxious that because of the head of steam that has been got up as a result of the Americans, we should not proceed with precipitate haste. It is true that the reports of earlier committees have taken a long time to bear fruit, and sometimes there has been a poor crop; but the Government are committed to reform and there should be no undue delay in taking a little time for careful and dispassionate consideration. There are matters such as libel tourism and the working of the public interest defence about which we simply do not have enough information to make a proper judgment.
The media are strong and vociferous, but there is no lobby or interest group for people whose reputations have been blackened, and we must bear their interests in mind. Many noble Lords will remember the late Lord Aldington, who I think I can say was held in great affection by Members of this House. He spent the last years of his life trying to clear his name of a widely published and totally unfounded libel about his conduct as an officer in the war. After a long trial a jury awarded him £1.5 million in damages. Everybody, including the jury, knew that not a penny of that sum would be paid. The jurors only wanted to mark their disgust at the libel and the way in which the case had been conducted by the defendants. However, the European Court of Human Rights, with the practical common sense which distinguishes that institution, subsequently upheld a complaint that so high an award was an infringement of the defendant’s right to free speech and that it might have a chilling effect on the publication of their opinions. For some conduct, I suggest, a chilling effect is exactly what we want. It is a matter of getting the balance right, and in order to do that there should be an investigation into this matter by an independent committee, comprising not just representatives of interest groups—as the Lord Chancellor's committee did before the last election—but also experts on the law of defamation. Then we can proceed with due speed and in accordance with the Government's promises to reform the law.
Lord Goodhart
My Lords, I am proud to be able to speak in support of the Bill introduced by my noble friend Lord Lester. He and I were friends long before either of us was ennobled. He has a remarkable record of Bills introduced to your Lordships' House, where the Government of the day have adopted the Bill, provided it with time to enable it to go through the House of Commons or produced their own legislation for the same purpose. I hope and expect that this Bill will fall into one of these groups and will in due course—and I hope fairly rapidly—become law.
I will start with a comment on the speech made by the noble and learned Lord, Lord Hoffmann, who said that he approved of a number of matters in the Bill. However, his speech was concerned almost entirely with attacking the way in which defamation is handled in the American courts. That is well outside anything that is relevant to this Bill. The noble and learned Lord referred to the fact that the law in the United States was very favourable to the media. There is a good reason for this, which goes back to the 1950s and 1960s, when there was a great deal of agitation in the south of the US by people pressing for full civil rights to be given to the black citizens of that part of the country. Newspapers such as the New York Times, which supported the movement for civil rights for black people, were sued in state courts in the south that were wholly hostile to this view and imposed enormous damages for defamation on those newspapers.
The law in the USA was then changed to make it impossible for courts in the southern states to consider this. There has been no similar provision in this country, so whether or not one approves of what happens in the USA, it is based on entirely different reasons. The Bill is not concerned entirely with the media—far from it; it is also concerned with the rights of all people to avoid being overthreatened by the prospect of an action for defamation. One should look not at what happens in the USA but at what happens in this country.
The law of defamation in this country is complicated—probably unavoidably, because it involves the collision of tectonic plates. Article 10.1 of the European Convention on Human Rights states:
“Everyone has the right to freedom of expression. This right shall include freedom. … to receive and impart information and ideas without interference by public authority”.
Article 10.2, however, goes on to say that the rights under Article 10.1,
“may be subject to … restrictions or penalties as are … necessary in a democratic society … for the protection of the reputation or rights of others”.
Article 8 states:
“Everyone has the right to respect for his private and family life,”
but subject to,
“the protection of the rights and freedoms of others”.
There are very difficult problems where these tectonic plates collide. I give the American example of Tiger Woods—although there are similar examples in the UK involving people with careers in sport. Is his misbehaviour part of his private life? Yes, of course it is. Would media coverage in Europe of his misbehaviour be in breach of Article 8? Hardly, because the right to receive information in this case would be seen to outweigh the right to privacy. These are very difficult issues and will continue to be so. The result is that we have a very complicated and out of date law of defamation. As a lawyer who practised in fields other than that of defamation, I find it very complicated. However, we can work it out with help from briefings. I found extremely helpful a briefing by JUSTICE. I should say that I am a former chairman of that organisation. There are also excellent notes in the Library of your Lordships' House, and a very good briefing from Liberty.
Liberty disagrees with Clause 14, which reduces the number of cases where a decision will be made by a jury. I support Clause 14. Defamation is now the only type of civil case where juries may still make the decision. I believe in principle that jury trials should be confined to cases that may result in convictions for a serious crime. The use of juries in civil cases has been a complete disaster in the USA. Clause 14 retains access to a jury trial in some cases where the special circumstances justify it.
The briefings recognise the value of the Bill. Clause 1 strengthens the defence of public interest; Clause 8 extends the defence of qualified privilege; Clause 9 gives further defence to internet service providers and similar organisations; Clause 12 requires the courts to strike out cases where defamatory statements are unlikely to cause substantial damage to the claimant; Clause 13 gives power to limit libel tourism by refusing to hear cases where the defamation is published outside England and Wales and no substantial harm can be established in England or Wales.
The Bill refrains from some of the more radical changes—for example, while Clause 5 may make it easier for a defendant to prove the truth of the alleged defamatory statement, it does not propose that the burden should be on the claimant to prove the untruth of the allegations. That would indeed be a very controversial issue—too much so, I think, for inclusion in this Bill.
The Bill does not tackle two of the main problems for litigants in defamation cases: the risk that, if, as defendants, they lose, they will have to pay excessive costs, and the risk that they may also have an excessive liability for damages. Statutory instruments to reduce the level of contingency fees failed to get through the House of Commons before the election—perhaps because they went a bit too far. However, these are matters not for this Bill but for elsewhere.
I believe that the Bill will be a great improvement in a section of a legal system that, as it stands, is unpredictable and too expensive. I end by saying that I look forward to the maiden speech of the noble Baroness, Lady Hayter of Kentish Town, which will immediately follow this speech, and that of my noble friend Lord Willis of Knaresborough.
Baroness Hayter of Kentish Town
My Lords, I am today reminded of a very dear but late departed friend of mine, Pam Blandford, who as I was growing up taught me the difference between a house and a home. Her hospitality, warmth, concern and openness transformed her house into a home. These past few weeks have done much the same for me, because this impressive, perhaps slightly intimidating, building known as a House has, thanks to your Lordships’ welcome, been transformed from a House into a Home. This welcome has come even from former Ministers opposite, against whom I used to rail and protest. It also came from the noble Lord, Lord Ryder, with whom I had the pleasure of working in television some years ago. Their welcome has been paralleled by the enormous attention, kindness and assistance from the officers and staff, and I thank all concerned for that.
It is also, for me, a great pleasure to sit among former MEPs with whom I worked in the European Parliament and with former colleagues from my trade union days, including my noble friend Lord Radice, who supported me on my introduction and was my very first boss some 40 years ago when I started work at the General and Municipal Workers Union.
My arrival here has reminded me of something that Zena Parker, wife of the then MP for Dagenham, said when she walked into the other place after the 1945 election. She exclaimed, “It’s just like a Fabian summer school!”, with so many Fabians having been elected to that House on that occasion. I am particularly reminded of that sitting here opposite the noble Earl, Lord Attlee, whose grandfather led those Fabian MPs with so much distinction. Indeed, I could almost put together a Fabian Executive in the House, with three former general-secretaries, a host of former chairs and two Fabian treasurers, including the noble Lord, Lord Roper.
It is therefore a particular pleasure to rise in support of a Bill standing in the name of another former Fabian treasurer, whom I met 36 years ago—the noble Lord, Lord Lester of Herne Hill. He was already eminent and very learned then, and I was simply young. He remains eminent and even more learned, but somewhere along the line I lost my youth. Of course, I am sorry now to find him on the opposite Bench because in those days we sat together, and there is still space here on the Bench next to me.
However, the great advantage of the noble Lord, Lord Lester, being on the government Benches is that he should have far more influence over another former Fabian employee—the noble Lord, Lord McNally—
Baroness Hayter of Kentish Town
That is the end of his political career! The noble Lord, Lord McNally, will answer on behalf of the Government, and I trust that he will take the wise counsel of the noble Lord, Lord Lester, and give this Bill a fair wind.
I have known a bit about libel from the time that I received the first ever writ on almost my first day at the Fabian Society, having succeeded the late Lord Ponsonby of Shulbrede when he arrived in your Lordships’ House. However, I have also found my name in Private Eye, the Sunday Sport and various other places in ways to which I have certainly objected.
As the noble and learned Lord, Lord Hoffmann, said, there is a delicate balancing act in this area. We need strong protections for the ordinary individual, perhaps vilified for things they never did—for example, the teacher or social worker falsely accused, the victim of a crime or mishap who somehow becomes the story or even the target for revenge, or the unwitting bystander caught up in someone else’s fight. Indeed, as chair of the Legal Services Consumer Panel—not an interest that is particularly declarable, as defamation is way outside our bailiwick—I constantly champion the interests of those who need, but are often denied, access to justice. We must protect the ability of those unfairly pillared in the press to have the legal means to pursue a claim.
The other side of the balance is the need for free speech, although not unfettered, irresponsible free speech. However, as citizens, we have the right to hear those campaigning on our behalf, particularly against the self-interest of the large, powerful or well organised who have vested interests, which of course can also include the state itself. When I was the chief executive of Alcohol Concern, I was once threatened with a writ by one of the country’s largest brewers over the most trivial and nonsensical of issues. But it was a warning.
I believe in that adage that sunshine is the best disinfectant. That sunshine is often brought to us by campaigners and journalists, who can use their talents, the freedom of information provisions, research and knowledge to raise public issues on our behalf, whether about food or drug safety, medicine, professional practices, planning or other vital decisions taken behind closed doors, often by the rich or powerful. Citizens have a right to be well informed on matters of public interest, public health and public good, and to be kept abreast of the ideas and information generated on all of these. Rarely is the law court the right venue for such debate. Scientific discourse should take place in academic journals and seminars, not in our courts, unless well defined barriers are crossed.
I shall give just one example of where the threat of legal action nearly diminished our access to information, and I speak as the doting grandmother of Poppy and Isaac, who are too young to be with us today and so are young enough to be in need of safe, reliable and tested child car seats.
As the House will know, the brilliant and highly reliable Consumers’ Association, or Which?, campaigns on all our behalves over a wide range of goods and services. Two years ago, Which? published its annual child car seat report, which included some “Don't Buy” recommendations—vital for every young family to know. Which? was promptly threatened by the manufacturers with being sued for libel and malicious falsehoods unless it completely retracted. Luckily for parents, Which? refused, knowing the robustness of its research and also confident of its reputation. However, a year of correspondence, time and money were used up. Which? had better things to do with that effort, and we, as consumers, would otherwise have been denied our right to know what was best for young passengers.
The problem is that the very threat of libel action from a body with a large vested interest can silence public discourse. Citizens’ representatives can censor themselves for fear of a libel action, as the legal costs could bankrupt the individual or their organisation. That means that we, as consumers of information and ideas, cannot hear what we need for our own democracy and well-being. It is for exactly such issues and to prevent such mischief that your House—now I can say “our House”—is so well suited.
Our present libel laws are not fit for purpose, and we have the chance to change this. We want to defend the right to protect an individual's reputation from slander, innuendo and defamation. But there has to be a better balance between this and the public’s right to good and greater information and opinion.
This Bill, ably put together by the noble Lord, Lord Lester, seeks to do just that. I urge the Minister to take heed of his wise counsel and of the demands of English PEN, Sense About Science, Which? and the medical colleges, and give this Bill a very fair and speedy wind to help open up the secrets of decision-makers and corporate interests, for the sake of all our citizens.
Baroness Kennedy of The Shaws
My Lords, I pay tribute to my noble friend Lady Hayter for her fine maiden speech. I do so with great affection, as I have known her for many years. We often forget in this House how daunting it is to stand for the first time to address your Lordships, but my noble friend has done so with charm and confidence and has given us the benefit of her good sense and experience.
My noble friend Lady Hayter is a Welsh girl who embraced the Labour Party when she was still very young. She has been at the heart of the Labour Party all her life. She was for many years general secretary of the Fabian Society; she was the chief executive of the European Parliamentary Labour Party; she sat on the national executive of the party; and from 2007 to 2008 she was the party’s chair. The Labour Party became my noble friend’s family, although I have to say that in her private life she now has the joy of grandchildren, who she adores. I just wish that her parents could have been alive to celebrate her entry into this House and to have heard her address today.
One of the pamphlets which she was involved in writing—she has written a number of important policy documents—was Men who made Labour. All that I can say to her is that when they come to write “Women who made Labour”, you, Lady Hayter, will most certainly be among them.
I now turn to the Bill, add my tributes to those of others and say to the noble Lord, Lord Lester, who is a great champion of freedom and rights, a thank you for initiating this Bill. It is wrong that scientists, NGOs, authors and journalists should be prevented from publishing information in the public interest due to their concerns about being ruined by libel threats. We have all known those cases where rich individuals, such as the press baron Robert Maxwell, used libel injunctions to freeze articles exposing his dishonest conduct. The fear of litigation by the rich and powerful often casts a shadow over independent journalism, chilling the sort of investigative reporting which is essential to our political well-being and vital to a culture which is free of corruption. Large corporations have brought actions against NGOs and newspapers without even having to prove financial loss, as we have heard. We have also recently seen courts allowing super-injunctions to create total silence where events scream for public awareness, such as in the horrifying Trafigura case.
However, I have concerns, like others, about elements of the Bill. I should declare an interest as a member of the board of the Media Standards Trust and I sat for 12 years on the board of a newspaper, the Independent, so I am very aware of some of these issues. I am concerned that some elements of the Bill remove helpful correctives on the excesses of the press. I am not convinced that the capping of damages at £10,000 could be sufficient to stop the press from going to print with a story that it thought would attract a great deal of public attention. Nor do I think that the burden of proof should be reversed. The well established principle that claimants carry the burden of proof should not be abandoned too readily. I agree and I am delighted that the multiple publication rule should be reformed. I also of course heartily endorse the idea that we should strengthen the public interest defence.
However, some things are missing here. One of them, of course, is that whole issue of cost, mentioned by others. For a long time, libel actions were out of the reach of the ordinary litigant and, indeed, remain so, but recently we have seen the introduction of the no-win no-fee conditional arrangement, which has had the unintended consequence whereby, instead of just allowing access for many who might not have had access to the courts before, it has involved the ramping up of costs in libel actions yet further. It has also allowed claimants to pursue claims where there has been no substantial harm. This is one of the issues that we are not addressing adequately here.
My other concern is regarding balance. In order to reform the law, it is also necessary to look at the whole issue of press self-regulation. These are two sides of the same coin and, when we are addressing defamation, it is important that we look at that issue. Libel reform must be coupled with reform of press self-regulation. I know that this Bill recognises the importance of self-regulation in its reference to codes of conduct, but it does not mention reform. One of the main reasons that people resort to libel action is because the current system of self-regulation offers insufficient remedies. It was the Select Committee on Culture, Media and Sport in its recent report on press standards which made an explicit link between libel law and self-regulation. At paragraph 558, the report recommended,
“that the Government consider whether proposals to reduce the cost burden in defamation cases should only be made available to those publications”,
including newspapers,
“which provide the public with an alternative route of redress through their membership of the PCC”—
the Press Complaints Commission. However, the committee also added that that would not work unless press self-regulation became more effective and more credible. I know that the noble Baroness, Lady Buscombe, will speak—she of course chairs that body—and I know that she has been anxious to make it run a more effective regime. Reform there is vital.
My concern with the libel reform debate to date is that it has not engaged sufficiently with the general public; it has very much been dominated by the press. This has meant that not only has there been insufficient scrutiny of some of the claims that are made, but the views of the public, particularly with regard to their protection from scurrilous journalism, have not been heard. Failure to take the public into account when you are reforming law does not usually make for law that has public confidence.
This is an issue of getting the balance right, and I know that that is difficult. The question that I leave this House and the noble Lord, Lord Lester, with is: how can we change the law to protect journalists who do have a regard for accuracy, truth and fairness and who know what a genuine public interest is? How do we protect them, but distinguish them from those whose standards are not as high? So I applaud the strengthening of the public interest defence and the general purpose of the Bill, but I urge the noble Lord to consider strengthening it with a greater balance towards those who are traduced by libellous journalism.
Lord Thomas of Gresford
My Lords, I also congratulate the noble Baroness, Lady Hayter, on her maiden speech and, as a Welshman, welcome her to this House. She reminded me of an occasion some years ago when I spoke at Peking University in Beijing about this House of Lords. I had some 200 students looking at me rather blankly, even when I said that this House was full only when we were discussing sex and fox hunting. That should give your Lordships an idea of how long ago that was. I wondered if there would be any questions. At the end, I was asked by a young lady, “To what extent do the provisions for pensions brought in by the Labour Government reflect the values of the Fabian Society?”. To be asked that question in Peking University in Beijing rather floored me, and I asked her to tell me the answer. I am quite sure that she knew what it was.
I welcome the Bill and the initiative of my noble friend Lord Lester in bringing it forward. The common law treated freedom of expression as a residual liberty, that is to say, a liberty which existed in the gaps between the criminal law of obscenity, libel or contempt of court. If historically there ever existed a recognised freedom, it was a freedom to express opinions or disclose information when the actual expression of those opinions was not forbidden by law. In 1885, Dicey, in his Introduction to the Study of the Law of the Constitution stated that,
“at no time has there in England been any proclamation of the right to liberty of thought or to freedom of speech”.
Legislation frequently fails to bring about the consequences it was intended to achieve. We thought that the Human Rights Act would have acted as a magic potion to resolve all the problems involving or relating to freedom of expression, yet here we are today. However, the Human Rights Act focused minds on the whole concept of freedom of expression, and in so doing altered perceptions. More people today are alive to their right to freedom of expression than at any time before. That is a spontaneous reaction which is to be applauded, but as soon as people became aware of another right, the right to privacy, the tension between that right and the right of freedom of expression inevitably followed. The clash of the tectonic plates, a phrase that my noble friend Lord Goodhart used, then emerged
The Human Rights Act places demands on our judges which they may not have entirely succeeded in meeting. The jurisprudence which has emerged reflects those tensions. There has been some inconsistency of approach and a certain muddle. It is that muddle which brought about the super-injunctions, that concept which figured in the Trafigura case, the injunction used to prevent the publication of a report on alleged dumping of toxic waste in the Ivory Coast. There was an attempt to invoke that ban on the subsequent reporting of parliamentary questions asked by Paul Farrelly MP relating to that report. Although that application was eventually withdrawn, the matter has not really been settled once and for all.
Perhaps once such a situation developed, the terms of the injunction should have been varied, but there ought never to have been any room for doubt whether parliamentary proceedings could be subjected to a super-injunction of that type. The Parliamentary Papers Act 1840, which was meant to provide such a degree of protection, was not strong enough to resolve the matter beyond dispute. A major advantage of my noble friend’s Bill is that it abolishes the 1840 Act, but Clause 7 places parliamentary proceedings on a distinct, protected statutory footing by affording them absolute privilege. It may not prevent an application for a super-injunction in future, but it will curb encroachments into areas that ought never to have been curtailed in that way. It is a very good example of what the Bill does to achieve simplicity.
As my noble friend Lord Lester said, the internet throws up new difficulties. Pressures on freedom of expression have grown with the internet and the dominance of the clickerati. As one commentator put it, internet users do far more than just download information. A single download may unwittingly create a legal quagmire that crosses continents and encourages challenges and hard-fought legal battles which threaten long-cherished principles. Freedom of expression touches everyone: lawyers, politicians, journalists, newspaper editors, internet providers and servers, celebrities, scientists, large corporations, small charities, NGOs, or even ordinary individuals. The example cited by the noble Baroness, Lady McIntosh, from Mumsnet, shows what a burden it is for an organisation such as that to have continually to edit its internet site. The whole area of the law is as complex as the issues or interests which it is required to address.
I commend my noble friend on having cut through the maze and on introducing a degree of clarity into the arena. He has done so at a price, knowing full well that he will not be able to satisfy everyone, as our debate today demonstrates. Nor can he address every issue in the Bill; he has had to leave out certain considerations and, in doing so, he has opened himself to criticism. However, he has put together a Bill, which, to use his words, could pass, could be effective and be brought into law. It is a reflection of judicial interpretive trends over the past decade and of his professional experience and knowledge of this area of the law. He has, modestly, invited help in fashioning this vital piece of legislation, and it will be up to the Members of this House to consider how wide-ranging the Bill should be in the absence of a complete overhaul of the law, but we would not be here if it were not for my noble friend zeroing in on the principles which, to cite him, seek to strike a fair balance between reputation and public information on matters of public interest.
It is a difficult balance to strike. Dr Dario Milo, an outstanding South African lawyer and academic, in his UCL thesis, The Constitutionalisation of the Law of Defamation, argued that constitutional rights must shape the contours of modern libel law: freedom of speech, rights to reputation and dignity and the protection afforded to the public interest. He pointed to the clash of constitutional rights in the decision of the Canadian Supreme Court in the Toronto Star case, where the court ruled that a new defamation defence was required as a result of the constitutional protection of freedom of expression, the defence, as the court put it, of reasonable, responsible communication on matters of public interest. That is the concept which my noble friend Lord Lester has adopted in Clause 1. What was fair comment is now termed by my noble friend in Clause 2 as “honest opinion”. That is an easily understood expression founded in the Dr Singh case, to which the noble Baroness, Lady McIntosh, referred. He was accused of libel by the British Chiropractic Association. The Court of Appeal stated in that case that judges would not rule on matters of scientific controversy, as it was not up to them to disentangle fact from opinion where scientific controversies were concerned. The court felt that the term “honest opinion” better reflected the realities of the issues.
In stating the key issues to be addressed by the Bill, my noble friend Lord Lester has rightly put the public interest at the forefront, and has attempted to resolve the issues relating to privilege, be it absolute or qualified, and to place responsible journalism on a clear footing, following the Reynolds guidelines and the Jameel case. I noted the criticisms of the noble and learned Lord, Lord Hoffmann, about the attempt to include in the Bill the principles stated in the Reynolds guidelines, but a number of judgments were given in that case, and my noble friend has attempted to put together a list of guidelines drawn from a number of judgments. Like the noble and learned Lord, Lord Hoffmann, I have some reservations about Clause 13. I acted for the leader of the Workers’ Party of Singapore, Mr Ben Jeyaretnam—Jeya—when we brought an action for libel in this country against the Straits Times, which had disparaged our success in Jeya’s earlier appeal to the Privy Council. That was a successful appeal which caused Singapore to abolish appeals to the Privy Council. The action was struck out on the basis that the Straits Times had little circulation in this country—about 1,000 copies were distributed—and that Jeya had no reputation here to speak of. That was the decision, which could not be appealed because of cost.
When Jeya died last year, the Guardian and the Times carried obituaries, which indicates the reputation he had in this country. I also represented him in Singapore in one of the libel cases which were brought against him by the then Prime Minister and others. We lost, surprisingly, but at least I did not suffer the fate of Mr George Carman QC who appeared in the next case brought against Jeya in a Singapore court: the damages were doubled because Jeya’s counsel pursued the slightly dangerous line that that Government used actions for libel as a means of ruining political opponents—it was absolutely true at the time.
Introducing this political element reminds me of the election we have just had. The success of the leader of our party in the prime ministerial debates led to the most incredible flood of abuse from some of the right-wing popular press. I had a letter published in the Guardian saying that it is an illegal practice under the Representation of the People Act to defame a candidate, even though my noble friend had successfully removed criminal libel from the statute book only months before, which might have been a better way to proceed.
Libel actions are all about cash. You have to be wealthy, destitute or mad to bring proceedings in this country. We acted for Jeya pro bono, which is the only way in which people can bring an action unless they fall into one of the categories to which I referred. There are, of course, many problems to be resolved: costs, damages, conditional fee agreements and success fees, which were referred to by the noble Baroness, Lady Kennedy. I am particularly concerned that the ordinary individual is inhibited and denied access to justice. His reputation may be badly damaged in his own area by a local newspaper or other media outlet, but there is no remedy for a person in such circumstances. I hope that these are matters that we will pursue at another time, but I urge noble Lords to support the Bill and to give it a fair reading.
Baroness D'Souza
My Lords, I add my congratulations to the noble Baroness, Lady Hayter, on an inspiring comaiden speech.
What needs to be said on this wide-reaching and vital aspect of freedom of expression has already been said by the noble Lord, Lord Lester of Herne Hill, and other noble Lords. They all spoke with great eloquence. I confess that I have nothing much more to add. However, I add my support to this Bill and will take up one or two points. Before doing so, I shall state my position. Long experience of defending free speech as the cornerstone of democracy has led me to the conclusion that there should in all cases everywhere be a presumption of transparency, free speech and access to information, unless and until a clear infringement of another fundamental individual right can be demonstrated. In the case of defamation, as we have learnt today, that would mean that reputation has been wilfully damaged or financial loss suffered, unless one is dealing with matters of serious public interest.
A number of landmark judgments by the European Court of Human Rights, admittedly based largely on criminal defamation, nevertheless helped to establish a set of principles. They include: the pre-eminent role of the media in informing public opinion on matters of public interest and in acting as the public watchdog, which requires that the media be accorded particular latitude; that a defendant must not be required to prove the truth of value judgments, statements reflecting public opinion or allegations based on rumours or the statements of others; and that private individuals have a much narrower limit of acceptable criticism than governmental bodies or political figures. The underlying rationale is that the public interest in the widest sense cannot be supported in the absence of these freedoms.
Defamation laws as they presently exist undoubtedly have a chilling effect on freedom of expression, as has been said by almost everyone. The enormous costs involved alone cause the less wealthy among us to agree to the suppression of the truth. Even the costs of finding out whether a given statement or article might be defamatory can be prohibitively expensive.
The incidence of failure to report on matters clearly in the public interest because legal bargaining intervenes is large, as is the number of cases settled pre-trial, and inevitably there will be an even larger number that never come to light. I am thinking of reporting of medical and pharmaceutical information, environmental threats, information on the fitness to lead of political and other leaders, revelations on corruption and the like. One of the longest running cases in legal history concerned criticism of a technique of dental anaesthesia to which some patients reacted adversely. Some of them even died. A dentist associated with this method managed to convince the courts that the article was defamatory of him. The case ran for over three years and cost the medical journal involved millions of pounds at current rates.
It appears that judgments now tend to favour free speech, but the costs of getting to the stage of a court case, no matter that the defendant is ultimately vindicated, are huge and exert a chilling effect. Moreover, the width of potential liability is very great and involves everyone who has had a part in a supposedly defamatory publication. It can include the publisher, the author and even the printers. How many editors of scientific journals are there who have to ponder every word of a given critique before publishing? A small specialist journal, which will be well known to all the lawyers in this House, Tobacco Control, was almost put out of business by libel laws without any action being taken against it. The insurers of the journal, which was inevitably critical of tobacco companies, decided that the risk of being sued was too great as a possible £2 million action was at stake. Eventually the journal went ahead on the basis that every article was read by a libel lawyer. The conditions were strict: even material ualready published in the US was disallowed since that is not considered to be a defence.
Current laws in the UK are unsatisfactory on several counts and do not reflect the explosion in electronic communication such as the internet. Furthermore, the law needs to deal with the multiple publication rule. One of the most egregious aspects of our law is that it fails to protect the whistleblower. The noble and learned Lord, Lord Hoffmann, has expressed concerns about libel tourism and the potential Americanisation of UK defamation laws. British libel law is undoubtedly antithetical to the protections afforded the press by the US constitution, but this Bill is not about libel tourism and seeks only to protect the free expression of those within the borders of the UK.
However, as in everything, there is a balance to be struck. What is needed above all is clarification of the current laws and their application to allow individuals and corporations to protect themselves from malicious attacks, and to enable fair comment and the absence of enforced self-censorship. The Bill goes some way in achieving this and is a welcome addition to the armoury required to protect the vital right to freedom of expression.
Lord Pannick
My Lords, I, too, warmly welcome the Bill brought forward by the noble Lord, Lord Lester of Herne Hill, and I congratulate him on doing so. I should confess to your Lordships that I was the unfortunate advocate for the United Kingdom Government in the European Court of Human Rights in the case of Lord Aldington, which was mentioned by the noble and learned Lord, Lord Hoffmann, in which the court held that damages of the magnitude of £1.5 million, which were awarded by the jury, were a breach of the right to free speech. I hope that does not, as the libel lawyers would say, lower me in the estimation of right-thinking people in your Lordships' House. I should also mention that the successful advocate in those proceedings, who acted for Count Tolstoy, was the noble Lord, Lord Lester of Herne Hill.
Libel lawyers often begin their submissions to the jury by quoting from Ecclesiastes:
“A good name smells sweeter than the finest ointment”.
The problem is that the current state of the law has odorous consequences. It undoubtedly allows the rich and the powerful to prevent or at least dilute critical comments about their activities by bringing, or even threatening to bring, libel proceedings, which impose a crippling cost on the author or the newspaper concerned, even if the libel proceedings fail.
In 1964, Lord Devlin said in a speech in the Appellate Committee that,
“a man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire, but it can be done”.
The problem is that it can be done only by walking a legal tightrope, which imposes a very substantial cost bill.
I much enjoyed, as I know the whole House much enjoyed, the speech of the noble and learned Lord, Lord Hoffmann. I can best summarise my reaction to what he said by recalling one of his speeches in the Appellate Committee in 2006. He said that it was,
“with a reluctance verging on disbelief that one is driven to conclude that the deliberate opinions of Lord Wilberforce and Lord Diplock were quite wrong”.
The noble and learned Lord, Lord Hoffmann, spoke of the different approach in the United States, even though he accepted that this Bill does not echo at all the provisions of United States law. He then described—critically, I think—what he said was a campaign by the media to reform the law, as if there were something reprehensible about those who have the vital function of communicating ideas and information drawing our attention from their vast experience to the damage done by the current state of the law.
The noble and learned Lord objected to Clause 1, which deals with the defence of responsible publication on matters of public interest. He objected on the basis that the courts have already recognised such a defence. They have, but Clause 1 serves a most valuable function because it clarifies the criteria, which are—with all due respect—confusingly stated in a number of judgments, many of which are conflicting.
He was concerned about hasty reform; namely, that we should not act too speedily. Let us look at Clause 10, which will remove the rule derived from the Duke of Brunswick’s case in 1849. There is no question here of reform being rushed. That case established that each fresh publication of the same material gives rise to a new cause of action with its own limitation period. The rule is a substantial impediment to free speech because newspapers and others who make archive information available on websites are at real risk of being sued when material is downloaded from the internet, however many years have passed since the original publication.
The noble and learned Lord, Lord Hoffmann, also said that we must remember the interests of those who are the victims of libel. Of course we should, but we do not assist the interests of libel claimants by maintaining legal provisions which are slow, expensive and obscure. Why should we allow libel claimants to bring proceedings unless they have suffered, or they are likely to suffer, substantial harm to their reputation? Clause 12 will remedy that defect. Indeed, I suggest that Clause 12 does not go far enough. I do not understand why Clause 12(2) allows for exceptional cases where it is in the interests of justice for the libel claim to proceed even though there is no substantial harm or likelihood of it. Perhaps the noble Lord, Lord Lester, in his reply, can explain what these cases are.
The noble Baroness, Lady McIntosh of Hudnall, cited from “Othello”. Of course, there is another famous quotation from “Othello”, which is Iago’s plea:
“he that filches from me my good name
Robs me of that which not enriches him,
And makes me poor indeed”.
The problem is that the Iagos of the 21st century bring libel proceedings and they deter newspapers, publishers and others from commenting on their behaviour. The current state of the law of libel damages the good name of the English legal system.
I much enjoyed the moving maiden speech of the noble Baroness, Lady Hayter of Kentish Town, and I very much look forward to hearing the maiden speech of the noble Lord, Lord Willis of Knaresborough.
Lord Willis of Knaresborough
My Lords, it is with a sense of pride and a little humility that I rise to speak in your Lordships' House for the first time. I must confess to a little trepidation at having to follow the noble Lord, Lord Pannick. I hope that it will not be necessary, but if it is, I hope that he will defend me on some future occasion.
To be able to contribute to this Second Reading debate on the Defamation Bill, which was introduced so expertly by my noble friend Lord Lester, is a huge privilege, although when he invited me to speak, I little thought that the cast he would assemble would read like a Who’s Who of legal nobility.
I have no noble pedigree to bring to the House, although I follow in the steps of the first Baron Knaresborough, Sir Henry Meysey Meysey-Thompson, who was also a Liberal MP for the town. However, having opposed Gladstone’s Home Rule Bill and joined the breakaway Liberal Unionist Party to form an alliance with the Conservative Party, he lost his seat. Indeed, Knaresborough has a tradition of being associated with some rather awkward politicians. The early Lords of Knaresborough include Hugh de Morville who, having been granted the Honour of Knaresborough in 1158, went on to plot the murder of Archbishop Thomas Becket before fleeing back to Knaresborough for safety. I notice that there are no Bishops on their Benches today. It was not surprising therefore that King John, who loved hunting in the forest of Knaresborough, took the title Honour of Knaresborough for himself in 1210, some five years before he signed the Magna Carta.
Walking through the Lobby yesterday, I noticed a copy of Magna Carta on the wall. It reminded me of the 34 years I spent teaching and my first post teaching history at Middleton County Secondary Boys’ School in Leeds. The head teacher, who was more renowned for his discipline than his educational philosophy, insisted that the boys must learn the lessons of Magna Carta to remind them of the freedoms and rights we have won to secure their future. Today’s debate is a timely reminder of that duty and why the Defamation Bill is of such profound importance.
Clause 29 of Magna Carta states:
“We will sell to no man, we will not deny or defer to any man either Justice or Right”.
Yet so abused have our libel laws become that justice and right are constantly being denied to a wide spectrum of individuals and organisations who wish to question the truth, interpret the facts or comment on what they believe to be right. What is more, the ideal that,
“We will sell to no man … either Justice or Right”,
has become a cruel parody where the UK has not only become the world capital for “libel tourism”, with other Governments like the United States passing laws to limit damage to their citizens, but our citizens are increasingly being silenced by the cost of defending even the most valid of expressed opinion, with only the bravest of defendants risking their livelihoods to fight for justice and right.
It is noteworthy and laudable that much of the recent push for libel law reform has come not just from writers, media editors and lawyers. Ben Goldacre, Simon Singh, Peter Wilmshurst and Henrik Thomsen are clinicians and scientists, and it is the medical and scientific world that has recognised that there is no greater public interest in free expression than the ability, in good faith, robustly to criticise medical claims whether they be from homeopaths or big pharmaceutical companies.
This Bill, as my noble friend has said, is largely a consolidation effort. It attempts to clarify and bring up to date what my noble friend’s explanatory notes describe as,
“a history of piecemeal and incomplete reform ... over the course of seventy years”.
As such, it deserves the support of this House.
Indeed all three major political parties at the recent general election backed the Libel Reform Campaign led so ably by Dr Evan Harris and by Sense about Science, an organisation founded by my noble friend Lord Taverne and run by the resourceful and energetic Tracey Brown. All concerned welcomed the coalition Government’s announcement in the Queen’s Speech for,
“Legislation ... to restore freedoms and civil liberties”.
This Bill is the first test of that commitment.
However, without wishing to be contentious, I hope that my noble friend would agree that the Bill is capable of improvement as it goes through this House, and I should like to suggest a couple of areas. The appalling abuse of our libel law by NMT Medical Incorporated in the United States to silence the legitimate criticism of Dr Wilmshurst over its STARFlex device for closing holes in the heart is a clear example of why more needs to be done to prevent the so-called “chilling effect” of our own laws. Nor is Peter Wilmshurst’s case unique. Some 10 per cent of all libel actions in the UK over past six years have involved scientists or academics. The costs of defending and especially of losing an action can be devastating. So I ask my noble friend: should companies and associations even be able to sue for libel? They cannot do so in other jurisdictions. Surely they should rely on malicious falsehood only?
Finally, there is growing evidence that scientists are finding difficulty having articles which have been subjected to assiduous peer review published in serious journals. Fiona Godlee, the current editor of the British Medical Journal, has made the point that she is frequently in receipt of letters from lawyers for pharmaceutical companies threatening legal action if criticism of a treatment or a trial is not toned down. A journal cannot risk its viability on a lengthy trial against a complainant with deep pockets, and so the article must be altered or rejected. So we have more chilling of scientific debate. Yet we do not know how many drug scandals are out there, such as the suppression of research data by Merck on the anti-inflammatory drug Vioxx.
What we do know is that we can better protect public interest if properly peer reviewed academic and scientific work was considered to be qualified privilege and thus intimidatory actions could be struck out at an early stage. I appreciate that a journal could rely on the statutory defence set out in Clause 1, that it had acted responsibly, but a defendant would still have to prove that in court, with all the financial risks involved in taking a case to a final hearing where that question is determined. Being able to rely on an a priori defence of qualified privilege would short-circuit the process, as well as having the huge benefit of incentivising journals to use the highest possible quality peer review, and making it clear to writers that only by choosing peer reviewed publications would they gain protection as well as credence for their work.
In ending, may I say how grateful I and indeed my family have been for the courtesy and kindness extended to me during my induction and introduction to the House, and I thank in particular the staff for their patience and support. I thank also your Lordships for your patience during this, my first humble contribution to your proceedings. I trust that the Government will heed the wise advice of my noble friend Lord Lester and make this Bill part of a process to renew our defamation law.
Lord Hunt of Wirral
My Lords, I have much pleasure in congratulating my noble friend Lord Willis of Knaresborough on an outstandingly good maiden speech. We all found his historical analysis of Knaresborough fascinating. But most important is that he has put forward a number of compelling arguments about the importance of the medical and scientific community. I pay tribute to what he has already referred to as his career in teaching. Perhaps, as I understand it, his most rewarding period was spent at Primrose Hill High School in Leeds, where for seven years he was involved in multicultural education and outreach youth work. His subsequent leadership role in pressing for inclusive education was important, together with his support for the “family of schools” initiative. So many tributes could be paid to him, so we all greatly appreciate the fact that he is now in this Chamber and we look forward to hearing many contributions from him in future debates. Today, however, we honour particularly his leadership of the science community, which followed his election as the Liberal Democrat leader of Harrogate Borough Council, and his praiseworthy economic generating initiatives. My noble friend has outlined some important suggestions for the ways in which the Bill could be improved.
I should first declare an interest, although many of the lawyers do not seem to have done so. I am a partner in the national commercial law firm Beechcroft LLP, and I have a few other interests that I may mention in the course of what I hope will be a short speech. But I want particularly to say how much I welcome the opportunity to praise my noble friend Lord Lester of Herne Hill. He and I fought shoulder to shoulder—successfully—on the Racial and Religious Hatred Bill, and I am therefore particularly pleased to be able to refer to him as my noble friend for the first time in this new era of Liberal-Conservative Government.
This is in many ways a classic, radical, reforming Liberal-Conservative Bill, and I hope sincerely that it will win support right across the House. But my noble friend would be the first to admit—and, of course, on Second Reading we are talking about the general principles enshrined in the Bill—that while the Bill may go in the right direction, it is not necessarily perfect. Many people, notably those who have campaigned long and hard for free expression and libel reform, feel that as matters currently stand, the glass as represented by this Bill is not quite half full. I pay tribute to those campaigners, notably English PEN and the Index on Censorship for the contributions they have already made to us in preparing for this debate.
Throughout my time in this and the other place, now for 34 years altogether, libel reform has constantly been talked about, but has never really been properly delivered. In fairness, as several speakers have already pointed out, it is no simple matter. We have to balance our right to defend ourselves against being traduced by unfair and untruthful attacks with our strong presumption against any law that has a chilling effect on free expression—although in view of the earlier comment of the noble and learned Lord, Lord Hoffmann, perhaps I should say one that unnecessarily has a chilling effect on free expression. This conundrum is recognised in the European Convention on Human Rights, imported into domestic law by means of the Human Rights Act 1998, which attempts to achieve balance and internal harmony. Article 10 makes clear that,
“everyone has the right to freedom of expression”,
while acknowledging that rights and responsibilities must be carefully weighed against each other. This right to freedom of expression is therefore qualified by the need for the law to ensure,
“the protection of the reputation or rights of others”.
Article 8 also sets out the right of the citizen to respect for private and family life.
As the noble Lord has pointed out, the programme of the Liberal-Conservative Government sets out a clear direction of travel, asserting that the Government,
“will review libel laws to protect freedom of speech”.
Other noble Lords have already reminded the House of a number of recent cases that have intensified the need for change in the law. There is no time—and it would be inappropriate—in a Second Reading debate to go into detail about content. Suffice it to say that I welcome the proposals to introduce a public interest defence and to clarify the law on so-called fair comment.
I fervently welcome any measures that might serve to encourage the rapid settlement of disputes without recourse to costly—sometimes prohibitively costly—litigation. The one dog that has not quite barked in my noble friend’s Bill is the idea of introducing and encouraging pre-legal triage in cases of alleged libel. I am proud of being a fully accredited CEDR mediator and I believe strongly in alternative dispute resolution, or ADR. We use mediation in family law, arbitration in industrial disputes and tribunals in employment cases; why on earth can we not apply similar principles in libel cases?
Lord Hunt of Wirral
I would like to see it more extensively applied. Some are well known for their overall attitude towards the need for mediation, but I would like to see an early neutral evaluation of the merits of a case, ideally producing a non-binding recommendation. This would help to address the huge gulf that has grown up between the likely costs of a libel action and the ability to pay for the overwhelming majority of citizens.
In another outstandingly good maiden speech, the importance that the noble Baroness, Lady Hayter of Kentish Town, applied to access to justice lies at the heart of this debate. I declare an interest as one of the original assessors to Lord Justice Jackson’s review on costs. Ministers are now looking seriously at the conclusions of that excellent review of costs and I hope that libel reform will dovetail neatly with all the other reforms aimed at bringing costs under control.
In particular, Ministers will have to come to a view on the question of success fees after the previous botched and unilateral attempt to cap them, supposedly as an interim measure. My noble friend the Minister of State has already indicated, in response to a Question from my noble friend Lord Lester on 21 June, that he is fully aware of the crucial link. The state of the public finances has forced us all to concentrate on where economies can and must be made. However, in this instance, fiscal necessity and much needed principled reform coincide perfectly.
I hope the House today will put its weight clearly, firmly and decisively behind the principles of libel reform. Starting from first principles, our assumption must always be in favour of freedom of expression, and libel laws should not be an exclusive playground for the rich and powerful. However, let us not legislate in haste and repent at leisure. Experience tells us that libel law is not easy to reform, so let us resolve to build legislation that will last.
Lord Borrie
My Lords, we are now about half way through the debate and the one thing that seems uncontroversial among Members of your Lordships’ House is that the purpose of defamation law is to strike a fair and reasonable balance between free expression and free speech on the one hand, and the reputation of individuals on the other. Indeed, although the noble and learned Lord, Lord Hoffmann, did not agree with a great deal of the Bill, he agreed with Clause 11. This clause makes a distinction between an individual and a company, a corporate body, which cannot rely on the word “reputation” but must prove financial loss if it is to succeed in a libel action.
Although what I have said so far is uncontroversial, a strong feeling, which I share, has emerged from the debate that the present law as applied by the courts—and, just as serious, the perceived application of the law if there may in due course be a court case—has shifted too far against free speech. Like many other noble Lords, I appreciated, the excellent speech of my noble friend Lady Hayter of Kentish Town. She gave the example of Which?, the consumers’ association, being inhibited. Although it stood up bravely for what it believed was correct, none the less it had to put up with a great deal of angst over a period because of threats of libel action.
The issue of threats is serious in regard to the chilling effect of the law on everyday expressions, views and comments of no great significance. However, the wider public interest in the Bill demonstrates that the existing law seriously inhibits discussion and debate on scientific, medical and other matters which are of interest not only to the parties involved but to us all. It surely is of major public interest and concern if debate about the merits of some new medical advance is prevented because it involves questioning or criticism of the medical claims of a particular pharmaceutical company.
I believe—this is meant to be, in part, an answer to the noble and learned Lord, Lord Hoffmann—that free discussion is not only a matter of self-indulgence of the critic or a sop to the media, but is vital in order to keep under public review assertions and claims made about all kinds of products and services. I commend the noble Lord, Lord Willis of Knaresborough, for giving examples of that kind in his maiden speech.
I am pleased to support the thrust of the Bill because its initial, principal clauses provide key defences to actions for defamation. There is no doubt that the higher courts themselves have in recent years endeavoured to reform the law. The noble Lord, in his extensive note on the Bill, made that clear. Especially noteworthy was the House of Lords Reynolds case in 2000-01 allowing responsible publication on matters of public interest even if it included inaccurate and incorrect information. The noble and learned Lord, Lord Nicholls of Birkenhead, listed 10 non-exhaustive matters to be taken into account in determining whether the defence is applicable. Unfortunately, various lower courts subsequently interpreted those guidelines more as hurdles, each of which had to be overcome in order for the defence to succeed.
Some years later in the Jameel case, the House of Lords—which I believe on that occasion, included the noble and learned Lord, Lord Hoffmann—sought to strengthen the new defence. Unfortunately, although perfectly proper in accordance with precedent and convention, those decisions were by a 3:2 majority, at least in part, and the common practice or convention of each Law Lord giving a separate judgment meant that the law, even as enunciated by the majority, is left in a somewhat uncertain state, as the noble Lord, Lord Pannick, explained so well a short while ago. I note for the sake of the record that our new Supreme Court the other side of the square follows the same convention as did the House of Lords Law Lords sitting in their judicial capacity. The remedy seems to be—this is the main thrust of my argument—statutory provision. It must be carefully drafted and may be improved, despite the excellent assistance in drafting that the noble Lord, Lord Lester, has had from Lord Justice Neill.
The highest courts in the land can of course clarify and advance the common law to the benefit of the whole community. But majority decisions and separate judgments are often antipathetic to clarity of decision-making for the future. The attempts of the higher courts to advance the law in this field only emphasise the urgent need for statutory provision, at least along the lines of the Bill, to remove the more serious deterrent effects of the present law on desirable debate and discussion.
I also support Clauses 14 and 15, which reverse the presumption in favour of trial by jury in defamation cases. Emphasis has already been laid on how slow we are in this country in reforming the law. It happens to be 35 years since the Faulks committee under Mr Justice Faulks recommended that the courts have discretion as to whether in the interests of justice trials should be by jury, judge and jury or just by judge alone. The noble Lord, Lord Lester, is bolder, because he advocates a reversal of the present presumption. Problems concerning the management of cases, the length of proceedings, hung juries and costs all favour the view that normally speaking the presumption should therefore be trial by judge alone. I welcome the provision in the Bill that a jury trial should be held only if it is in the interests of justice to override those concerns. A non-exhaustive list of circumstances that may be relevant are set out in Clause 15.
There has been some mention but not a lot so far in this debate of the formidable report on the review of civil litigation costs conducted by Sir Rupert, Lord Justice Jackson, published towards the end of 2009. But the report had some interesting things to say about the present presumption in favour of a jury trial in defamation cases. In practice, the number of judge-alone trials for defamation has been increasing, whereas the number of jury trials for defamation has remained static. Sir Rupert Jackson pointed out that the use of juries increased trial costs by some 20 per cent to 30 per cent. Judges are well able to decide the issues. He also makes the point that, if there is any error at a trial by judge alone, it is much easier to appeal against a judge’s reasoned judgment than against the judgment of the jury, which is not reasoned at all. Those are powerful arguments and I support the thrust of the Bill.
Baroness Bonham-Carter of Yarnbury
My Lords, I start by congratulating the noble Baroness, Lady Hayter, on her admirable maiden speech and my old friend the noble Lord, Lord Willis, on his contribution. His wit and erudition, just demonstrated, will add so much to this House. I will speak briefly. Indeed, as noble Lords can probably hear, it is hard to speak at all. It is only because of the huge esteem in which I hold my noble friend Lord Lester—from today I shall think of him as the Earl of Leicester—and his Bill that I speak at all. I will also speak specifically about the effect of our libel laws on our journalists, writers and broadcasters, and the need for this Bill to address the unacceptable state of affairs that presently exists.
The Bill is welcomed not just by myself but a long list of stakeholders, as mentioned earlier by the noble Baroness, Lady McIntosh. Organisations such as the BBC, Index on Censorship, Channel 4, English PEN—indeed anyone who is passionate about the need to place more protection on the right to freedom of speech—must support the aims of this Bill.
The journalist Nick Cohen, who took such an active part in the Simon Singh case, said:
“It is intolerable for lawyers to start policing science”.
It is equally intolerable for lawyers’ threats to stifle the ability of investigative journalists to ply their trade. Faced with the threat of libel action, which could result in crippling costs, all too often the only choice is to present a watered-down and hence weakened case, or repulsed by that idea, not to publish or broadcast at all.
Only recently, Channel 4 faced a libel case in which it was alleged by a participant in a documentary that bits of it were faked. Despite the fact that he now acknowledges that the programme was not faked, Channel 4 will not recover any of its costs, which came to a staggering £1.7 million. How much better would it have been had that money been invested in our creative talent.
At least in that case, the programme saw the light of day. One of the reasons that Robert Maxwell—mentioned earlier by the noble Baroness, Lady Kennedy—got away for so long with his fraudulent behaviour was his extremely successful use of the threat of libel. I have personal experience of that. I remember when I worked on “Panorama” at the end of the 1980s, that there was not a single weekly ideas meeting when “we must do Maxwell” did not come up. One investigative journalist had a good supply of ammunition, noble Lords will not be surprised to hear, but it never got past a tempted but ultimately cautious programme editor.
Maxwell died in 1991, but nearly 20 years on, the threat of libel sees documentary strands such as “Panorama” being told by inhouse lawyers to remove sections of what they had intended to broadcast or cancel whole programmes because they are not legally clearable. Most recently—and I emphasise that I am not comparing subjects—“Panorama” shelved a whole documentary programme about the noble Lord, Lord Ashcroft, due to the threat of legal action.
Our draconian libel laws are being exploited by those who come from abroad and from those who come from countries with no freedom of expression. The noble and learned Lord, Lord Hoffmann, mentioned an individual who, it has been alleged in various publications, has given money to al-Qaeda. Using British libel lawyers, he has launched no fewer than 33 suits. Furthermore, Cambridge University Press has been obliged to pulp one of its books rather than face a libel action in the British courts. To quote Denis MacShane MP:
“What is happening when Cambridge University Press … one of the flowers of British publishing for centuries, has to pulp a book because British courts will not uphold freedom of expression?”.—[Official Report, Commons, 17/12/08; col. WH72.]
The Bill is not by any stretch of the imagination a lone voice, as we have heard, in what it is asking. There are calls on all sides and from many different quarters for the need for Britain’s libel laws to be radically shaken up. Promises to do just that were in all three main parties’ manifestos and the coalition agreement contained a pledge to implement a full programme of measures to roll back state intrusion and review existing libel laws to protect freedom of speech. My noble friend’s Bill is a perfect opportunity to begin such a necessary and important process, and I sincerely hope that it will not be missed.
In the spirit of the coalition, I end with a quote from Edmund Burke. He said:
“It is not what a lawyer tells me I may do; but what humanity, reason, and justice tell me I ought to do”.
Lord Bew
My Lords, it is with unusual trepidation that I rise to speak in the debate of a legal nature in which so many noble Lords have contributed or will contribute to. I speak as an Irish historian. I hope that it is a good omen that I follow on from the maiden speech of the noble Lord, Lord Willis of Knaresborough, whose connections with Donegal are so strong that he might be considered almost an honorary Irishman. I hope, too, that it is a good omen if I speak very much in the same spirit as his fine maiden speech.
The noble Lords, Lord Thomas and Lord Borrie, have referred to the Reynolds case this morning, and the noble Lord, Lord Lester of Herne Hill, has made it clear that that case, brought in the 1990s against the Times by the then Taoiseach, Albert Reynolds, was a crucial moment in his own thinking on this matter. The noble Lord, Lord Lester, argued in that case for the development of a defence of responsible journalism; the Law Lords agreed and set out the Reynolds defence. The noble Lord is of the view that overall the results of that development have been disappointing and he is required to introduce this Bill to deal with this deep problem.
In effect, the requirement to show that one has carried out an investigation beforehand leans far too heavily against many honest participants in debate and limits unreasonably our freedom of discussion. As far as Irish affairs are concerned, the Reynolds case is but the tip of an iceberg. When a society has been afflicted with terrorism, as Ireland has been over the past 30 or more years, the opportunity for libel cases rises exponentially and dramatically. Indeed, I am often driven to reflect, somewhat wryly, that 100 years ago my home city of Belfast was actually, on some assessments, the leading industrialised city in the world. In the past 10 or 20 years, I have come to the conclusion that all entrepreneurial activity has been displaced into one area—activity in the libel courts. Sadly, today, Belfast is no longer a leading industrial centre in the world but is certainly a leading centre of activity in libel law.
Let us not forget that those who have been genuinely traduced require and deserve full compensation, but in recent years we have seen what I can only describe as a crazed pedanticism at work in these matters. It is not unreasonable to assume that one can sue effectively on the grounds that on the public record one has definitely committed an extremist act in one city but it has been alleged that one committed it in another city. It is not unreasonable to pursue a matter on the basis that someone did something in one place but not in another; it is not an unreasonable strategy, and the facts will show that. Again, it is not unreasonable, even if one is among the most famous names in Ireland in terrorist or paramilitary activity, to attempt to sue one of our leading newspapers for drawing attention to that. All these things have happened in recent years.
We complain that our newspapers are full of tittle-tattle, but we have the worst of both worlds now. If an editor has a tape or a photograph, he can go ahead because it is unchallengeable even though public interest may not be at stake at all in such a case. On the other hand, it is equally clear that there is a fear factor involved in genuine cases of investigative journalism, especially where the world of terrorism is concerned.
I speak as a professional historian and to some degree as a part-time journalist. In the past two or three weeks, the Bloody Sunday report of the noble and learned Lord, Lord Saville, put a number of contentious matters beyond all reasonable doubt. None the less, I left out several paragraphs of those articles because there was still so much space for possible libel action, even though I was confident that what I wanted to say was definitely true. It simply was not worth putting the newspaper through the struggle or argument or difficulties that it might subsequently face, even in a context in which so much has been clarified beyond doubt. There is a great deficiency in the Oxford history of Ireland that I completed two years ago when it deals with a number of key living figures. I am well aware that by the normal standards of historical proof there are things that should have been said in that book that have not been said, for the same reason—that Oxford University Press was frankly concerned and it was better to avoid any difficulty. In a sense, I feel that my readers are to some degree cheated. If one is writing the Oxford history of one’s own country, one should have a substantial degree of freedom—certainly larger than that we currently have—to express the truth about controversial matters.
As a historian, I know of one point in particular that your Lordships may not be aware of. We are moving in a different culture with respect to release of public records as we move from a 30-year to a 20-year rule. That is going to create problems for our libel laws, because documents will come out about leading public figures that will contain embarrassing and controversial material. In the present state of our libel laws, comment on that will actually be inhibited. That is another reason to offer support to the Bill proposed by the noble Lord, Lord Lester of Herne Hill.
I do not want to be too egoistic and make too many claims for the entrepreneurial activity of Belfast lawyers. I have to say, sadly, as we speak on the anniversary of 7/7, that terrorism has spread its wings and that it is no longer simply an Irish matter. The entrepreneurial activity of lawyers is not confined to Belfast. Carter-Ruck’s winter newsletter of 2007 says that,
“during the course of the last 12 months, Carter-Ruck has secured numerous apologies, together with damages totalling in excess of £700,000, for a number of Muslim clients falsely accused of suspected involvement with terrorism”.
As in so many respects, Northern Ireland leads the way.
I conclude by offering general support for the Bill. The noble Lord clearly believes that we need a new, broad approach to defamation—I might almost say a new general theory of what constitutes defamation. I simply want to talk narrowly about what might be done in five more specific areas. First, the widening of the qualified privilege defence in the case of public figures should be considered. Secondly, as noble Lords have said, there should be a redress of libel tourism. We should look very closely at the key issue of the proof of real damage in certain cases. Thirdly, there is the issue of costs.
Fourthly, there is the early determination of issues of precise meaning. I shall explain what I mean by that. If I had written that someone was responsible for a bomb on the border, I would like to know, if sued, whether the judge believed that I had simply meant that they were part of an organisation that collectively may have known about this bomb, or if he believed that I meant that that person had actually placed the bomb. Those early determinations of meaning can speed things up, and certainly avoid considerable expense.
Lastly, the noble Lord, Lord Carlile, made a significant point about our judiciary in his recent Creaney lecture. It is of course well known that there is much public complaint that our judiciary is too Oxbridge, too public school, and that there are certain ethnic and class communities whose ways they do not know. Our judiciary is unfamiliar with one community in particular, the community in Northern Ireland that the noble Lord, Lord Brooke of Sutton Mandeville, when he was Secretary of State used to refer to with the memorable phrase “the terrorist community”. The training of our judiciary, happily, does not give much insight into the events in and around the highways and byways, the movements, motivations and strategy of that community. The noble Lord, Lord Carlile, has suggested that judges should approach this issue through the Judicial Studies Board and deepen their knowledge of national security issues. The ways in which these issues were approached in the past are, frankly, no longer operative.
Broadly, I thank the noble Lord, Lord Lester of Herne Hill, for introducing the Bill today.
Lord Ramsbotham
My Lords, I, too, congratulate and thank the noble Lord, Lord Lester, for bringing forward the Bill. Not least, it has given the noble Baroness, Lady Hayter, and the noble Lord, Lord Willis, the opportunity to give their outstanding maiden speeches, on which I congratulate them both, and which have contributed so much to this debate.
Not being a lawyer, I am not in a position to comment in detail on the various clauses or any of the alleged additions or omissions to which attention has been drawn. My contribution will be devoted to explaining why I so strongly support the Bill, conscious that alterations can, if necessary, be made if it goes forward to the normal legislative scrutiny. Like many people, I am disturbed by what appears to have happened to the line that was expressed so clearly in the opening paragraph of the Explanatory Notes:
“The common law of defamation … is based upon the civil and private right of every individual to the unimpaired possession of his or her reputation and good name. The general rule is that no one may speak falsely of his or her neighbour, and that it is in the public interest that ‘the law should provide an effective means whereby a man can vindicate his reputation against calumny’”.
If that is being drawn into doubt then something is clearly wrong.
In this connection, like many other noble Lords, I have been bombarded with briefings and comments on aspects of the Bill that I have read with great interest and from which I have learnt a lot. I join the noble Lord, Lord Lester, in mentioning Patrick Vollmer and his marvellously helpful and carefully researched Library note, which is well up to the standard that we are lucky enough to have come to expect from that organisation.
It is said that soldiers can think only in threes. To prove that that is correct, I have three reasons for supporting the Bill. First, I support it because it is timely. Witness the fact that all the main political parties included reform of this law in their election manifestos. I am also persuaded by the many experts who regard it as an important first step in rebalancing the law of defamation in favour of greater freedom of expression. I note that Liberty believes that the balance is now tipped too far in favour of reputation at the expense of freedom of speech. I am always slightly nervous when I hear the word “rebalancing” in the context of law, because I thought that the law consisted of scales that are normally left level.
This follows several decades of campaigning by organisations such as Justice, boosted by the need to strike a balance between Article 8 on respect for private and family life and Article 10 on the right to freedom of expression in the European convention for the protection of human rights. Most recently, of course, there was the consultation exercise conducted by the previous Secretary of State for Justice shortly before the recent election.
I fully appreciate that whatever action the coalition Government propose might not include all the details and content of the Bill. However, the intention surely cannot be a million miles away. In the interests of time, if nothing else, might it not make sense for the Government to adopt the Bill and use the legislative process to include or exclude according to government policy, rather than waste time on duplication?
Secondly, the scrutiny demanded by the current position is necessary and appropriate. The libel lottery is said to be out of control. At one extreme, the forecast reduction in the provision of legal aid for libel means that the poor and the not so poor may be libelled with impunity with no means of remedy. At the other extreme, the level of libel damages and settlements made in anticipation of them in libel trials are an expensive game. Decisions on whether to take a case to court in the first place are conditioned by the level of libel damages, which remain extraordinarily high. The costs, which are said to be similarly excessive, are out of all proportion to the general complexity of the law.
Thirdly, I support the Bill because I hate the law being brought into disrepute. I know that it is but one small part of the whole, but, like many others, I welcome the fact that the Bill draws attention to the concern over “libel tourism”. I find the idea that foreign claimants seek to establish a UK readership or audience, however small, in order to make a defamation claim within the jurisdiction of the English courts, distasteful. All those who believe in freedom and equity under the law neither want nor welcome our alleged reputation as a Mecca for aggrieved people from around the world who want to sue for libel. I find nothing to feel proud about in unscrupulous and greedy people being able to use the threat of a libel action in English courts to stifle freedom of expression abroad.
Reflecting on this, I could not help thinking about how much our practice of any restriction on the media has been altered by the development of satellite communications and the internet. I was reminded of the problems that we had when I was the director of public relations for the Army during the Falklands War, when we realised that all the directions of the D Notice Committee were meaningless if foreign correspondents could transmit their copy via satellite straight from the battlefield. I therefore find it at best strange, and possibly ridiculous, that the current law should be determined by a ruling from 1849 in the case, to which my noble friend Lord Pannick referred, of the Duke of Brunswick, before telephone—let alone wireless satellite—communications had been introduced.
Conscious of what my noble and learned friend Lord Hoffmann ruled—that the defence of public interest should be available to anyone who publishes material of public interest in any medium—and of the many details which may still have to be ironed out, I welcome the Bill of the noble Lord, Lord Lester, as a most important first step along the road to rectifying a law that has long been in need of revision.
Lord Triesman
My Lords, my wish to speak at Second Reading and in subsequent phases of the Bill arises not from any recent events—I hope that will be recognised—but from a concern that I have expressed over the best part of 30 years about chronic imbalances between the power of the media and that of many private individuals when the media attack the reputations of those individuals. It would have been chilling, if I can use that phrase, not to take part. It is no easy task to speak among so many eminent speakers. The noble Lord, Lord Lester, has provided us with an opportunity to reconsider libel law and I thank him very much for that. I readily acknowledge that the idea of doing so has been growing in the policies of various libel reform campaigners, academics and NGOs for some time. I welcome and associate myself particularly with the comments of the noble and learned Lord, Lord Hoffmann, and the noble Baroness, Lady Kennedy.
I understand the motivation that lies behind these legislative proposals. I have also looked at the evidence provided by several campaign groups and noted that at the general election there was support for reform from all main parties, based on the worst cases that have concerned those groups. So I support the case for the protection of citizen critics and the need for reform. The law is complicated, the outcomes are uncertain and costly, and I see some risks—although I think they are overstated, as Lord Justice Eady suggested—of libel tourism. I can also see that the web has driven wider and repeated publication.
Everyone must be concerned that, in the scientific community, people fear the risk of publishing data questioning the efficacy of products or production methods. This kind of discussion should never be repressed. Everyone will acknowledge the risks faced by research teams and individuals when actions are taken against them by massive corporations with bottomless pockets. The injustice, quite apart from the suppression of discussion central to scientific process and progress, is the hopeless mismatch in the resources of the contending parties. There is no equality of arms; it offends justice and leaves a sense of profound unfairness. We are, in this country, a people who very much dislike unfairness.
Key cases, some of which have just been mentioned by the noble Baroness, Lady Bonham-Carter, have had an impact on the campaign and the pressure groups whose work contributed to the Bill. It has aroused empathy in your Lordships’ House, not least in the two exceptional maiden speeches by my noble friend Lady Hayter and the noble Lord, Lord Willis. We all share a commitment to freedom of expression. Lord Deedes, chairing a JUSTICE committee, described it as “our bedrock”. However, it is not our only bedrock, nor the only prism through which we understand our civil liberties, nor the only source of inequality of arms in cases. Remedies to what has reasonably been called the chilling effect of our libel laws cannot be remedies that undermine other civil liberties and send an Arctic wind through other individual rights that are also, in our country, a bedrock. That is in the area of risks to reputation.
Initially, I believed that campaign groups, NGOs and the in-house media lawyers who have been so vociferous in supporting the Bill were the only voices around. I now know of significant numbers of other journalists, academics and claimants’ lawyers who argue that the Bill, as drafted, presents problems. I think the noble Lord, Lord Lester, has suggested that that may be true and that they can be dealt with as we go through the process. However, none of those people was in the advisory group that helped draft this legislation.
I was moved by the most reverend Primate the Archbishop of York in the debate on the future of this House. He asked what should be our goals and objectives. His answer was,
“revising the law that will maintain freedom and justice for the nation and for every individual within it”.—[Official Report, 29/6/2010; col. 1674.]
Our starting point, then, should be the civil liberty and freedom of individuals and, on that basis, to see what becomes efficacious to look at in the civil liberties of all the other entities in our society. Where in this Bill I see a desire to protect the civil liberties and freedoms of individuals as defendants confronted by mighty corporations as claimants, I ask where the corresponding recognition is of the rights and difficulties of individuals as claimants facing overmighty organisations as defendants. I note that this last class of defendants in the press are the most vigorous supporters of this Bill because they believe—I think, rightly—that it extends and protects their powers.
The eminent lawyer and Guardian readers’ editor, Siobhain Butterworth, correctly observed that today the media hold the ring. They create what scrutiny there is of defamation in many cases and have the greatest continuing interest in particular outcomes. Trusting some of the media groups—some of them have a trenchant history of defamation—to make key judgments on defamation at best is counterintuitive and at worst simply empowers the most powerful and fortifies their self-interest. The noble Lord, Lord Pannick, may be right to refer to the role and experience of the media in respect of free speech—I agree with that point—but he would have assisted me if he had at least dealt also with their responsibilities. Therefore, I ask who is speaking up for the claimants that I have mentioned and for the broad concerns in society for the legitimate defence of reputation and individual privacy.
Every time someone says we need a new balance because the harm that is done, for example to scientific communities, is unacceptable—I agree with that—I am concerned to know how much empirical evidence there is for harm of that kind, which I think is significant, and how much evidence there is for the harm done to individuals and their civil liberties, which are likely to be compounded by releasing the media, through this Bill, from most of their serious obligations when dealing with people’s reputations. I do not think that evidence has been systematically collected and I am sure that it has not been published. It is always important to work on the basis of evidence. There is a strong instinct in this House to do exactly that. However, the first six months of the year have been wholly negative for claimants. I am indebted to Professor Mullis at the University of East Anglia for the data. If there have been shifts in balances—I feel sure that the noble Lord, Lord Borrie, would agree with this, given what he said—they ought to be confirmed by systematic data and systematic research. That is what should guide us in that case.
The Bill redefines “responsible publication”, yet I fear that it fails to list the decisive factors included in Lord Nicholls’ judgment in the case of Reynolds: namely, whether the claimant’s account has been included and what the source of the information was. Weakening the guarantee of an unqualified right of reply to someone whose reputation is being publicly shredded seems to me almost the definition of unfairness. I cannot see that you can attach the word “responsible” to it in any meaningful way. That is not a balance. Moreover, the Bill extends, perhaps to a surprising degree, the scope of the defence to cover comment, effectively blurring fact and opinion. The Explanatory Notes treat this as a technicality. Although I readily acknowledge that I am no lawyer, I think that this flies in the face of the Reynolds judgment. A defendant could rely on being false but responsible. That is no mere technicality; it is the beginning of a wholesale right to an unstoppable defence of public interest. Indeed, in my view, if the Bill were to become law in its current form, it would allow much less scope for arguing public interest and for a successful claim by anyone traduced by a toxic mixture of purported fact and opinion. It is entirely understandable that some publishers and editors support the Bill enthusiastically for that reason.
It used to be thought that the public interest meant that the revelation was justified because greater good came from exposing it than suppressing it—a benefit which any reasonable person would recognise. It exposed fraud, crime, corruption, significant anti-social behaviour, disclosure of decisions, probity and value for money. It was about what would allow people to make significantly better informed decisions on matters of public importance or to expose wrong-doing. However, that is no longer what is meant by the words. They mean that someone—anyone among the public—might be interested in anything that might be said. The Bill gives oxygen to this approach; either it intends to do so or the changes in terminology and language lead in that direction. A robust definition may be difficult to draft, but it is imperative, although I fear it is absent.
The Bill is perhaps rather more one-sided in its changes to the definition of “honest opinion”, although I acknowledge great strengths in parts of Clauses 2 and 3. The difficult area is where a defendant is released from relying only on the facts that they knew at the time of publication. If two sides had broadly similar resources available to them when they came to deal with the matter in finality, this would perhaps not be a problem, but the idea that a defendant can employ any number of investigators who can go on fishing trips all the way up to and including any hearing against a claimant who may well be hazarding their home and their family’s financial future just to deal with the original case, does not strike me as fair. Lord Justice Eady, in the judgment on Associated Newspapers, maintained a rather more reasonable balance of fairness. That is preferable.
Roy Greenslade, as he so often does, summed up these issues effectively when he said that the Bill can protect journalists pursuing a story, even if it is untrue and causes damage beyond repair. They can shrug off the consequences with what he described as indifference, while claimants have to accomplish what might be well beyond their resources. I am sure that a fairer balance can be struck.
The Law Commission, chaired by a Lord Justice of Appeal, has the impartial responsibility to look for balanced and carefully considered solutions to complex areas of law, and I ask the Lord Chancellor, through the Minister, to refer the libel law proposals to the Law Commission for a full and speedy review. I hope that in addition to the proposition of the noble Lord, Lord Lester, for a specialist and expert committee, he will think that that is fair housekeeping in all the circumstances.
I urge the House not to alter access to juries by reversing the presumption. This is an area where the common sense of our fellow citizens will be a clear asset. I ask the House to ensure that the Bill deals with costs, damages and the misuse of private information, and does not finish its parliamentary passage by being almost exclusively about the interest of defences. Like the state of media regulation, which has been mentioned, it may be said that these matters are beyond the scope of the Bill, but actually they are all interwoven, and the operational consequences of the Bill and dealing piecemeal with the issue will probably leave us with a piecemeal solution.
In summary, I am grateful to the House for indulging a non-lawyer. I have looked at the Explanatory Notes and, with respect, I suspect that they do not really reflect the wording of the Bill. I know that the noble Lord, Lord Lester, aims for a fair balance and that he wants one, but I believe that the Bill, as drafted, will weaken the weaker party in the bulk of defamation cases—no level playing field, no equality of arms and no proper redress. The Bill may well help one group of people who should be helped, but only by weakening another.
I said at the beginning that these issues have concerned me for nearly three decades. I have seen some newspapers, journalists and proprietors—although by no means all of them—savage people who did not deserve it and had no equal chance of fighting their corner. The cases that tended to disturb me most in my working career, as it happens, were those involving trade union people, who I would describe as being on the progressive side of politics but with scant financial resources. They are not the rich and powerful and they are not in an equal contest. I know that your Lordships will all be able to think of cases from your experience in different walks of life that are by no means less important than the kind of examples that were drawn to my attention in my working life. So, with respect, I find it hard to recognise that what has been said, including in the opening speech, is reflected in what has come out so far in the text of this Bill. I am sure that work on it can make a real difference, but I thought it right—especially having had at least a brief conversation with the noble Lord, Lord Lester—to put my arguments in a strong way so that my view is understood.
The House, with its goal and objective—as the most reverend Primate the Archbishop of York said—to protect the civil rights of individuals, should stand up for everyone, not just for some or for those who find inequalities in the present law, but for others who also find inequalities in the law and have no realistic means of protecting themselves.
Lord Taverne
My Lords, I join in congratulating the maiden speakers. The noble Baroness, Lady Hayter, gave a warming and very telling speech, and my noble friend Lord Willis of Knaresborough made a delightful speech. He has an outstanding record as chairman of the House of Commons Science and Technology Committee and will be a great asset to this House. I will also say something about my noble friend Lord Lester. He has done a huge amount of work on the Bill, strongly supported by others, and this is only one example, as other speakers have pointed out, of the unique contribution that he makes through his expertise, energy and application. I do not know of any other Member of this House who has done more to prevent bad laws being passed and to see bad laws repealed. I also thank the author of the House of Lords' Library’s Explanatory Notes on the Bill, which many of us have found extraordinarily helpful.
Libel law is a complex subject. In my relative youth, more than 44 years ago, I was a lawyer, and even then I knew little about libel law, so I will not speak as a lawyer. In recent years, my main interest has been the promotion of the evidence-based approach in the public discussion of scientific issues and public policy-making. I declare an interest as chair of the charity Sense About Science, which was founded for this purpose and which has played a prominent part in the campaign to change the libel laws. I make it clear that the other prime movers were PEN and the Index on Censorship. It was not a campaign by newspaper magnates to enable them to continue their irresponsible attacks on individuals, which are a disgrace to our society and from which many have suffered, including the noble Lord, Lord Triesman.
I will concentrate on the effect of the law on scientific and medical publishing. I will start with examples and then draw general conclusions. Fiona Godlee, the editor in chief of the British Medical Journal, is a powerful witness for reform of the law. She has complained that the British Medical Journal has had to turn down important papers on legal advice. She states:
“One of our specialist journals would have published a series of case reports illustrating clinical signs suggestive of child abuse, but had to reject it on legal advice. The information was clinically important and should have been available to clinicians in the UK”.
She also cited the case of tobacco control, to which the noble Baroness, Lady D’Souza, also referred.
Professor Holm, editor of the Journal of Medical Ethics, has spoken about the unrealistic demands on time, manpower and finance from ensuring that articles are not liable to libel actions. He states:
“The very nature of the JME means that we deal with papers that are critical and that take a certain position about something or someone”.
He went on to explain that they got three or four cases a year where a laywer thought there could be a case for libel, then stating:
“We are part-owned by a research and educational charity, the Institute of Medical Ethics—we can't bankrupt them! We have to be careful and avoid libel action”.
He gave an example of a paper that he wanted to publish which alleged that the University of Toronto had suppressed research showing that a drug used to treat people with excess iron in their blood and liver was not as effective as had been claimed. After protests from the university, the journal’s lawyer suggested changes in the paper that the author refused to accept, so it could not publish the paper.
Another case concerned Professor Lacerda and the lie detector. Professor Lacerda, who is a professor of linguistics at Stockholm University, co-authored a review article on lie detectors that was published in the International Journal of Speech, Language and the Law in 2007. The article concluded that there was no scientific evidence to show that a particular lie detection technology actually worked. However, an Israeli manufacturer of lie detectors demanded that the article be removed. The journal complied. The journal’s editor was angry and upset that he was forced to remove a peer-reviewed paper from the public record, but he could not put the livelihoods of the journal’s staff at risk. He said:
“The company has not put forward any counter arguments, but has chosen to simply try to silence us”.
These are only a few of numerous examples that can be cited, but they have profound consequences. In some respects, the worst effects are the hidden ones that do not emerge into the public domain. The noble Baroness, Lady Bonham-Carter, gave some important examples of those. A huge amount of time is spent on libel reading and discussion with editors and lawyers about changes that might have to be made. The costs and time involved may be higher than a journal can afford. Important articles and papers may be delayed for years by the threat of legal action. Legal negotiations are often given as much weight in deciding whether to publish as peer review. Editors do not pursue stories that are scientifically important because they know that lawyers will not let them be published, while editorials are often inhibited from commenting freely on contentious issues by the threat of legal action. An article that has been shown to have been plagiarised or even fraudulent may not be withdrawn because withdrawal may lead to a libel suit for damage to the author’s reputation. To summarise, what choice does an editor have when forced to choose between an article that may lead to a ruinous libel suit and one that is safe but less contentious?
Finally, all the aces are in the hands of wealthy plaintiffs. Rich organisations know that they do not have to respond to a critical article or publication by argument and evidence; they can sue the author or the publisher and force them to withdraw and apologise. Numerous authors and editors have testified that they have had no choice but apology and withdrawal. Very few have fought and won. Ben Goldacre and the Guardian did recently. Simon Singh’s case was another. What is more, in that case, the plaintiff sued him personally rather than the newspaper. His heroic stand on principle prevailed in the end rather against the odds, as it seemed at first, thanks to an historic judgment by three of our leading judges. Even so, he paid a heavy financial price.
It cannot reasonably be contested that the law as it stands inhibits free scientific publication and debate. We should not exaggerate. Fortunately, we are still miles away from the kind of suppression of free criticism that marked the Lysenko era in the Soviet Union or Hitler’s announcement of the end of reason and the Nazis’ denunciation of orthodox science as Jewish science, which had a devastating effect on science in a country that, before the Nazis, had won more Nobel prizes per head than any other nation. Generally, science and free speech flourish in our democracy. However, the growing inhibition on some forms of free scientific expression generally, which has been demonstrated by the Libel Reform Campaign, is a step in the wrong direction along a very dangerous road.
Lord Woolf
My Lords, it has been a great privilege to listen to this debate. It is also a great privilege sometimes to come towards the end of the speakers, because what one was going to say has already been said so much better by those who have preceded one. It was a particular privilege in this case because of the two extraordinarily good maiden speeches that we have heard.
I also regard this as a privilege because of my appreciation of the achievements of the noble Lord, Lord Lester, in placing this Bill before the House. He is an outstanding parliamentary reformer of the law in areas where reform needs to take place. Sometimes he also tries to do it in the courts, but they are not quite as welcoming of it as we have been in this House today. In the courts, our primary task is not to reform the law but to apply the law, although in the senior courts we can, at the same time, often make an important contribution to improving the law. Indeed, we have tried to do that in the area of defamation covered by the Bill. However, it is a particularly difficult task to improve the law in that area because of the conflict between the two fundamental rights involved, as already referred to by other speakers. It is therefore an area of the law where opportunities have to be taken by the legislature to ensure that the balance between the rights of the individual and the public interest in freedom of speech are kept properly in balance.
In my view, the noble Lord, Lord Lester, is right in his general thrust of trying to move the law modestly more in favour of defendants, and the time has now come when that is needed. However, if I may say so, he has shown his skill as a law reformer by doing it in a way which retains a very considerable degree of flexibility, so that if the circumstances of an individual case require a different approach, enough discretion is left to the court to enable it to reach a just result in that case. I therefore hope that this House will do what it appears to be doing—that is, almost unanimously support the Bill and ensure that it at least receives the Second Reading that is needed.
In concluding his speech, the noble Lord, Lord Lester, said that there was a need for a different approach to the Bill compared with the norm, and I hope that that will come about in the future. The Government of the day should see it as their responsibility to take over the area of the law which the Bill seeks to reform and ensure that the process of reform is as constructive as possible. That is particularly important because in due course the Government will have to come to a conclusion about the reforms that have been recommended by Lord Justice Jackson as a result of his review into costs in civil proceedings. I emphasise costs because their impact in defamation litigation has, correctly, been emphasised again and again during the speeches that we have heard today. In that regard, I take the view that the Bill makes a contribution towards the question of costs and the problems that they create. However, it makes only a modest contribution and other action is needed in relation to costs because, in the long-term interests of litigation in the defamation field in this jurisdiction, that will be more important than the reforms which are proposed. However, the reforms are in themselves desirable because they introduce greater certainty. That is very important in the resolution of disputes in any area of the law, but particularly in the definitions that have to exist in the law of defamation.
The other aspect of the law that the Bill does not deal with is procedure, except with regard to one very important area, which is trials taking place before a jury. Historically, the law of defamation has always made special rules for defamation proceedings which are out of accord with the general movement of and developments in civil procedure. The use of juries in civil procedure is a special recognition of the fact that it was thought that this area of the law dealt with a matter of such importance to the public and the individual that a jury could bring its common-sense approach to litigation to bear on the outcome. That matter was referred to by the noble Lord, Lord Triesman, whose speech I listened to with particular interest and concern.
There is no doubt that the presence of a jury is a great safeguard to the individual who comes before the court. Therefore, it is with great hesitation that Parliament should take action which would reduce the use of juries. The Bill takes a moderate course. It does not say that there should not be a jury in the future, but it brings this area of practice into line with other areas of civil procedure by saying that there should be no presumption of the use of a jury. That will mean that there must be a special reason for using a jury, as in other areas of civil practice. We should interfere with that area only with great caution for the reason that I have explained. It is now time to take that action. One of the reasons why the law’s reputation has been so sullied is the expense and complexity of defamation trials. The fact that there is a jury means that it is more difficult, if not impossible, to take some of the courses that are now automatic before the civil courts in disposing litigation as economically and effectively as possible. The fact that there is a jury makes the outcome less predictable and it is more difficult to advise those conducting the proceedings. Juries go for the merits and are not so influenced by the law as a judge who is trying the case alone.
Furthermore, it is more difficult for the advisers to understand precisely how the jury will deal with matters which both sides are aware they can use to try to score “jury points”. The scale of the damages is not easy to ascertain, so it is more difficult to settle the case than it would be if it was coming before a judge alone. All those factors increase the length, and therefore the expense, of the jury trial in defamation proceedings. That has such untoward consequences that I suggest that that part of the noble Lord's Bill should be warmly welcomed.
It is said that what is at stake is the chilling effect on editors, publishers and others who wish to exercise the right of free speech, which we hold in such esteem in this country. That is right, but why does it have such a chilling effect? First, because of the time that defamation proceedings can take and, secondly, because of the costs of those proceedings. If the costs of the proceedings can be kept in proportion, the consequences to those who wish to bring proceedings and to those who wish to defend proceedings would not be as horrendous as we have heard today. The real solutions to the problems in defamation litigation are those which the Bill does not touch. The issue is how to control the cost of litigation in this area. The way to control it is strong judicial management. That is critical.
The noble Lord, Lord Hunt—who has great experience as a litigation lawyer and, I was pleased to hear, as a qualified mediator—focused on the question of mediation. I have no doubt that he is right to say that mediation should play a greater part than it does today in avoiding cases going before the courts when there is no need for that. However, if proceedings are being brought not for the purpose of achieving what a party thinks are his just deserts or just rights but to frustrate others from doing what they should be entitled to do, such as to publish articles or to make comments in the public domain about developments of which they disapprove, mediation cannot be effective.
Furthermore, mediation cannot be effective if the costs of the proceedings are unduly weighed in favour of one party or the other. What has undoubtedly happened in this area is that the costs are so high that possible defendants feel that they cannot take the risk of proceedings, because they will have such a damaging impact on them. They do not take the action of publishing the article which would give rise to the threat of defamation proceedings. The law has moved a considerable way in preventing that happening when it should not, but it has not moved far enough. It should be possible to take the steps that the Bill proposed by the noble Lord, Lord Lester, seeks to take to make the playing field fairer for both those who wish to bring proceedings and those who wish to defend them. Both should be able to do that without regarding it as an impossible task.
Baroness Buscombe
My Lords, I join other noble Lords in congratulating the noble Baroness, Lady Hayter of Kentish Town, and the noble Lord, Lord Willis of Knaresborough, on their excellent maiden speeches. I must declare an interest as chairman of the Press Complaints Commission. In that capacity, I welcome this Bill as an important and, frankly, overdue step towards reform of our libel laws. I congratulate the noble Lord, Lord Lester, on bringing it forward.
I agree with much of what has been said in this debate, but I disagree with some of it. In my contribution, I shall focus almost entirely on one small but important aspect of the Bill: the proposal to introduce in Clause 1(4)(g) a defence of responsible publication on matters of public interest which would include consideration of the extent to which the defendant has complied with any relevant code of conduct, such as the Editors' Code of Practice.
My purpose is therefore both to support the principle of applying adherence to a code of conduct as a valid defence and further to explain to your Lordships why the PCC, as an independent regulator that enforces the Editors' Code of Practice for the newspaper and magazine industry, is well placed to work in synergy with the law. Rulings of the PCC have already been recognised by the courts, and it is right that the law should recognise the validity of the PCC system.
The Explanatory Notes attached to the Bill emphasise the tortuous process for delivering reform and the length of time that libel law reform has taken and, indeed, is taking. This contrasts sharply with the flexibility of the self-regulatory system. The PCC system allows for continuous evolution, flexibility and adaptability. We react speedily to fact and circumstance. In addition, we can adapt to cultural change, influencing and reflecting in our decisions what is, and what is not, acceptable in our society.
Lawyers are often too rule-bound and the law is too narrow when justice requires the exercise of discretion. The PCC exercises discretion in a bespoke way. Indeed, it complements a key objective of the Bill in that it strives to strike a fair balance between private reputation and freedom of expression. Self-regulation performs a critical role in filling the gap left by the law and, in the case of the PCC, fulfils an important objective of the Bill, which is to ensure the speedy resolution of disputes. Indeed, I support my noble friend Lord Hunt of Wirral’s preference for alternate dispute resolution—I must declare an interest as a founder member of the Foundation for International and Commercial Arbitration and Alternative Dispute Resolution. Much of our work is focused on mediation. The PCC is easily accessible and free to complainants to use. There is the rub for lawyers. They often prefer to say that the PCC is not a proper place for redress because as soon as complainants come to us, our services are free and the lawyer is not paid.
The PCC has authority. We demand prominence of apologies and levels of standards. We also work to prevent, indeed pre-empt, harm and to encourage editors to think before possibly breaching the code. We do this through pre-publication advice, by sending desist notices and by engaging with editors where a potential claimant fears something will be printed that they believe would breach the code. For example, today, the PCC director is in Cumbria talking to those affected by the recent shootings and the subsequent press coverage. We were first in touch with the Cumbrian police offering our services to victims and their families even before the tragic events were over and the gunman was still alive. The noble Lord, Lord Ramsbotham, used the word “equity”. That is what we are focused on.
PCC commissioners debate fully and with rigour the often difficult balance—as noble Lords have said today, it is a difficult balance—between freedom of expression and the rights of individuals. Commissioners often change their minds as a result of open debate. The system demands a degree of trust and integrity from all those who buy into it. It works because editors are held ultimately responsible.
I very much welcome the recognition in this Bill of the high professional standards that adherence to the Editors’ Code of Practice brings. By tying self-regulation into legal standards you enhance both. It is right that courts should recognise the validity of the PCC system. This Bill will benefit self-regulation and the law. We are painfully aware of how slow the law as prescribed by statute is to recognise the speed with which technology changes our behaviour and creates potential for harm. It is incredible to think that the Communications Act 2003 does not even mention the internet. In 2010, online communications is where much of the harm in this area of the law is done.
Statutory recognition of self regulation should encourage online media to sign up to the benefits of abiding by a self-regulatory system. For example, last year, the PCC’s remit was extended to those news organisations that publish only on the internet. In future it must be likely that publishers will see the value of something akin to a kitemark to show the standards to which they adhere by participating in the self-regulatory system.
In terms of compliance, the PCC system has to be the preferred route, given that we can, and we do, move so much faster than the courts. We regularly take complaints about online material and have the offending articles removed in a matter of minutes. This places a check on continued dissemination. With regard to multiple publications, the PCC’s experience will assist the law because already PCC rulings do not affect only newspaper articles but also internet versions, archives and even Google search results. It is the case that many of the circumstances prescribed for responsible publication are already considered by the editors’ code, such as checking sources and notifying an individual ahead of publication. The PCC also has a good track record in identifying differences between fact, conjecture and opinion, and establishing case law.
In making the positive case for applying compliance with the editors’ code a defence under Clause 1, it is important that I add that the PCC is not complacent and that it recognises a continuing challenge to reassure public confidence and trust in the media that they consume. Just this week an independent governance review of the PCC has been published. This gives us the impetus further to refine and renew the structures and processes of the PCC and ensure that we perform as effectively as possible.
In conclusion, there is much to commend in this Bill. In concurring with other noble Lords, I welcome this important beginning of a process and, yes, in the words of the noble and learned Lord, Lord Woolf, it must be a constructive process to reform the law of defamation.
Baroness Young of Hornsey
My Lords, the noble and learned Lord, Lord Woolf, suggested that there were advantages in coming so late in the debate. There are advantages, but there are also some disadvantages, particularly in trying to find further superlatives to describe the very good maiden speeches made by the noble Baroness, Lady Hayter of Kentish Town, and the noble Lord, Lord Willis of Knaresborough. All that I can do is reiterate what other noble Lords have said and say how much I look forward to their future contributions.
It is also true that many tributes have been paid to the noble Lord, Lord Lester. I will reiterate them, but I hope that it will not go to his head—I am sure that it will not. I should like to thank him for suggesting that I speak today because I would not otherwise have thought that this was something to which I could make a contribution. It has been quite gratifying that a sprinkling of non-lawyers have spoken, so I do not feel as intimidated as I might have done otherwise. It has also been gratifying to hear other Peers who are involved in the arts and the creative industries speak about the impact of the Bill. Recent examples have alluded to science, but the arts have always been in the forefront of contesting and trying to push the boundaries of the oppressive nature of some of the laws that are still on the books.
Like other noble Lords, I have been helped in what I am going to say by briefings from a range of organisations and individuals, many of which have already been mentioned, such as Mumsnet, Which?, JUSTICE, Liberty, English PEN and the Index on Censorship. However, I do not think that anyone else has referred to the National Campaign for the Arts. Just to clarify, it is the UK’s only independent campaigning organisation that represents all the arts, providing a voice for the arts world in all its diversity. Because of my own professional interest, I was particularly keen to hear its views, so I have drawn quite substantially on some of the comments it has made.
As I see it and as many other noble Lords have already said, the Bill attempts a difficult balancing act. On the one hand, there is the need to protect the right to freedom of speech and on the other there is the need to protect individuals from defamation. On one level that sounds simple, but of course it is not, otherwise we would not be debating it today. In relation to this Bill, many noble Lords have mentioned the recent case of Dr Simon Singh and the consequences of his critique of chiropractors and their claims about the ability of their practitioners to alleviate some distressing illnesses. If ever a case invoked the real meaning of what I understand is meant by the term “public interest”, this was it. I do not need to rehearse the case again because, as I say, it has already been referred to several times. Suffice it to say that exposing highly questionable health claims unsupported by rigorous scientific evidence is clearly in the public interest. However, this is sometimes used by press and media outlets as a defence on other slightly more spurious grounds.
For that matter, it can be quite a tricky area to define and to make clear to the general public what was actually meant. Although the print media have not always been successful in these cases, there have been a number of high-profile instances when such a defence has been habitually invoked by newspapers. I think particularly of the libel case involving the private life of Formula One boss Max Mosley as well as countless examples of the indiscretions of Premier League footballers. These instances have provoked public interest of an altogether different kind.
The Defamation Bill attempts to drags the libel laws into the digital age—again, this has been mentioned by several other noble Lords—although there are still concerns about where an organisation like Mumsnet stands as a site that hosts opinions and critiques from a very wide range of people over which the organisation exercises no form of editorial control. Will Mumsnet be held responsible for the content on its site? The noble Baroness, Lady McIntosh, referred to this, and I do not think that the position is as clear as might be thought. Indeed, Mumsnet has raised the issue because it does not feel that it is. I guess that this is covered by the clause that spells out the difference between a “facilitator” and a “primary publisher”. That distinction could be crucial and I would welcome some clarity on which category Mumsnet and other similar organisations might fall into.
In general, the National Campaign for the Arts welcomes the Bill inasmuch as it represents a continuing commitment to protecting freedom of speech. It believes, as I do, that it could go some way to ensure the continued protection of these freedoms. The introduction of a single publication rule overturned the 1849 case of Duke of Brunswick v Harmer. I must say that I was quite pleased with myself for being able to mention a bit of case law, but it has been deconstructed far more ably by my noble friend Lord Pannick. That case brought the ruling that refers to the number of publications. Here, again, the Bill seeks to take account of our contemporary world where many different forms of communication and distribution mean that there are often, effectively, numerous new publications over time and across boundaries. If the Bill, or something like it, becomes law, reports of academic conferences will be protected and claimants will no longer be able to rely on that age-old case to bring proceedings when stories are downloaded from web archives many years after first publication.
The Bill also extends absolute privilege to cover fair and accurate reports of proceedings in Parliament; anything published by or on the authority of Parliament; and a fair and accurate copy of, extract from or summary of anything published by or on the authority of Parliament. Again, that is welcome.
The change from the defence of “fair comment” to a defence of “honest opinion” will be welcomed by many people, and particularly by critics and reviewers of art, books, theatre and other art forms, as well as by restaurant and food critics, who increasingly come under pressure not to make adverse criticisms of what they have sampled for fear of being prosecuted. The four conditions required for a defence of “honest opinion” seem reasonable, although I am sure that in the future there will be many struggles over the meaning of the term should it become law.
The NCA is particularly concerned about the need to establish serious damage to reputation. Clause 11 potentially makes proceedings more difficult for the claimant when it stipulates that a body corporate must show that the publication,
“has caused, or is likely to cause, substantial financial loss”.
It is noteworthy that, in contrast to the position in other jurisdictions, no exception is made for small corporations or non-trading corporations. This could have an adverse impact on arts and third-sector organisations, for some of which reputational damage is considered to be a substantial risk on a par with financial loss. It could be argued that the reputation of such bodies is being treated as nothing more than a financial matter when in fact it is a considerable part of their cultural and social capital. This could be problematic for charitable bodies and NGOs, and I would be grateful if the noble Lord, Lord Lester, would clarify that point.
Another point that might affect smaller, non-media organisations is that the Bill explicitly states that the extent to which the media have complied with codes of conduct, such as that of the Press Complaints Commission, is one of the factors that the court should consider for a responsible publication defence. However, bloggers and NGOs—who are also involved in investigative reporting—do not have the same editorial codes of conduct, or sometimes even any at all. This has prompted a question about the intended target of the Bill. In the absence of codes of conduct, further clarity around what constitutes a responsible publication defence is advisable for the benefit of bloggers and NGOs. There is a need to clarify these points in order to alleviate concerns about the practical implications of some of the changes that have been mooted, particularly for organisations that do not fall into obvious categories such as the mainstream media and so on.
I support some of the comments made by the noble Lord, Lord Triesman, and the noble Baroness, Lady Kennedy of The Shaws, who said that it was essential to distinguish between journalists—whether citizen journalists or otherwise—who act with integrity and honesty in their investigations, comments and criticisms, and those who are simply set on sensationalising and traumatising vulnerable ordinary citizens in order to sell more products. In this respect, I have some sympathy with the slightly contrary position that has been adopted.
Like many others, I see the Bill as a welcome step towards legislation that is much more fit for purpose than the legislation that it is intended to amend or supersede. Like the NCA, I welcome the introduction of the Bill as it stands, with some of these interventions and comments taken on board. It is a timely intervention that goes a considerable way towards enabling legitimate and honest comment and opinion.
Lord Bach
My Lords, I shall begin what I intend, and what I am sure the House fervently desires, will be a fairly short contribution with a number of congratulations. I congratulate, first, our two maiden speakers today, my noble friend Lady Hayter of Kentish Town and the noble Lord, Lord Willis of Knaresborough, who both come to this House with high reputations. After their contributions today, we can all see why. We look forward to hearing much from them in the future. I congratulate also all those who have spoken in this debate, whether lawyers or non-lawyers. The fact that both have been importantly involved in this debate proves perhaps the point, if it needed proving, that the law of defamation affects all of us in society. Above all, congratulations are due to the noble Lord, Lord Lester. While there is clearly a consensus for reform, he has taken matters a step further and produced a serious and compelling legislative proposal in the form of the Bill before us today. For that, he deserves much more merely than the thanks and congratulations of this House; he deserves the congratulations and thanks of the country.
I commiserate with the noble Lord on being so near yet so far from being the Earl of Leicester. What a wonderful thing it would be to be Earl of what to some of us is God’s own city, but, distinguished as he is, he has not quite yet reached that high point.
I hope that it comes as no surprise that we on this side in favour of reform in this area of the law—it was specifically referred to in our recent manifesto. Therefore, it follows that we warmly welcome this Bill and its crucial role, as we see it, as instigator of legislative change—it is not the final word; the noble Lord, Lord Lester, made that absolutely plain. It is quite clear that the impetus for change has been growing and, when in government, we responded. The libel working group convened by my right honourable friend the previous Lord Chancellor produced a report alongside other significant reports and consultations such as Defamation and the Internet, the consultation entitled Controlling costs in defamation proceedings—about which I shall say a little more later—and, earlier this year, the Select Committee report from another place. All those have all strengthened the case for reform.
Some much publicised and shocking cases—the Singh case here comes to mind—have also been instrumental in bringing this campaign to the wider public’s attention. I praise the organisations Index on Censorship, Sense About Science and English PEN for their campaigning and influence.
As to the contents of the Bill, it would be foolish at this stage for any political party to commit itself in detail to a precise view on each clause. That is for a later time but, I hope, not too much later. I can say that, as a whole, the Bill strikes us as being sensible and practical in establishing a better balance between the right to personal reputation, so well argued for in this House today by my noble friend Lord Triesman, the noble and learned Lord, Lord Hoffmann, and my noble friend Lady McIntosh among many others, and the right to free speech; in other words, the balance between Articles 8 and 10.
It is clear that the time has come for the scope of the defence of public interest, as ruled on in Reynolds and Jameel, to be set out in statute. The changes in both words and meaning to the defences of “fair comment” to “honest opinion” and “justification” to “truth” seem at first sight to be reasonable and workable. Similarly, the Clause 9 provision on responsibility for publication and the Clause 10 creation of a single publication rule with discretion for the court seem useful and important proposals. We will want to look closely at Clause 11 dealing with actions for defamation brought by corporate bodies, but the Australian experience and the noble Lord’s draft clause dealing with our own law looks more than interesting.
I listened with great care to what the noble and learned Lord, Lord Woolf, had to say about Clauses 14 and 15 and the issue of trial by jury in defamation cases. We believe that on balance it is right to reverse the presumption very much for the reasons set out by the noble and learned Lord and in paragraph 151 of the Explanatory Notes. It is interesting and encouraging that that excellent organisation, Justice, agrees in principle. Of course, the interests of justice caveat is absolutely essential to that proposition.
A possible addition to the Bill arises out of a concern referred to already on a number of occasions in speeches today, raised by the organisation Mumsnet. It is concerned that the Bill as presently drafted does not provide explicit cover for hosts of third-party comments. I invite the noble Lord to consider that point, not necessarily today but as the Bill progresses.
There will obviously be a great deal of further discussion and debate before the final shape of the reforms is agreed. I do not think that anyone can argue that this is not a huge step forward. However, the Bill does not deal with—and it is not intended to deal with—what in the modern cliché could be described as the elephant in the room. That is the question of costs in defamation actions. I make no criticism of that at all, as this Bill is concerned with the substantive law and the position on costs does not need primary legislation to be changed. The briefing from the Libel Reform Campaign makes the point, already referred to by my noble friend Lady McIntosh, that fighting a libel case can cost 140 times the European average and can routinely cost £1 million. But the maximum 100 per cent success fee allowed under conditional fee agreements is just too high. Alongside the high legal costs anyway, we believe that this has had a harmful effect on freedom of expression and think that the 100 per cent figure should be lowered—and should be lowered now. The reply of the present Government to that proposition is that we should wait, perhaps until the Government legislate on Sir Rupert Jackson’s review of civil litigation costs, which has come up today. Sir Rupert has trenchant views on success fees generally, I think it is fair to say.
The Jackson report is a massive piece of work covering the whole civil law field. Given its length, importance and complexity, it was produced in a remarkably short period of time, and praise has been given to Sir Rupert for his work. However, with the greatest of respect to how government works—and I have a little experience of that—I do not believe that legislation will emerge for some considerable time yet. I would love to be proved wrong, but I fear that I will not be. It is not like waiting for Godot, who of course never came; waiting for Jackson will be rewarded eventually, I am sure—but not soon, and certainly not in the near future, and it is in the near future that we need change to the success fee regime in this field. I know that the noble Lord, Lord Lester, and other noble Lords, agree with that proposition. So I urge the Government to bring forward the necessary secondary legislation, as we did—and, I hope, with more success—as an interim though not the final solution to what is, as many noble Lords have said, a major problem.
Meanwhile, the Bill will of course pass its Second Reading and will then be subject to detailed consideration and discussion. We very much hope that that will be so. We wish it well and pledge to do our part in taking it forward. We look forward to hearing what the Minister has to say.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, there were once two cows looking over a fence when a tanker passed by. On it was written, “Drink Co-op milk—pasteurised, sterilised, homogenised”. One cow turned to the other and said, “Makes you feel plumb inadequate, doesn’t it?”. [Laughter] That is something of my feeling today, following this debate that has had such a galaxy of talent and a plethora of learned noble Lords, all with their usual fluidity. I will make some effort to respond.
I was pleased by the approach of the noble Lord, Lord Bach. I, too, shared some interest in the thought of my noble friend Lord Lester as the Earl of Leicester. I sent out for clarification because I could not remember if he was one of the Virgin Queen’s friends who came to a sticky end. I am assured, however, that he did not and that he died peacefully, so at least my noble friend has that encouragement.
I acknowledge that the previous Government did a lot of groundwork in this field. We are building on that. I understand the noble Lord’s desire to examine some of the details of my noble friend’s proposal. I hope that I can make some suggestions on how we can do that.
Before that, I express my personal delight that both maiden speakers today are old friends. It was a delight to hear them both make such excellent speeches. It was interesting to find out from the speech of the noble Baroness, Lady Hayter, how many of us have Fabian pasts—almost as interesting as hearing of some of the previous jousting of the legal profession. I say to the noble Baroness that when I set out in politics, my ambition was to one day be on the government Front Bench sitting next to an athlete. I admit that I did not think it would quite work out this way. That just shows that you never can tell.
The noble Lord, Lord Willis, was just as good as I knew he would be. He brought his amazing experience to the House, not least on science and technology issues. It was also a first for me: it was the first time that I heard a Yorkshireman say that he was modest. That is almost a contradiction in terms. My noble friend Lord Shutt is at this moment outing him as a Lancastrian. Is that true? Oh my God. Now I understand his modesty.
There have of course been ample and justified tributes to my noble friend Lord Lester. So many important pieces of legislation over the past 40 years—the Human Rights Act, the forced marriages Act, the Equality Act and so on—have had his fingerprints all over them. As a parliamentary reformer, he has a Wilberforce-like tenacity in pursuing the causes that he espouses. With his track record, the prospects of a defamation Bill reaching the statute book are high indeed. My noble friend rightly paid tribute to his colleague, Sir Brian Neill, and Heather Rogers QC, who have helped him in producing this formidable piece of work.
Today’s debate has been extremely interesting as part of what the noble and learned Lord, Lord Woolf, termed the great debate between freedom of speech and the rights of the individual. Several noble Lords, including the noble Lords, Lord Goodhart and Lord Pannick, and the noble Baroness, Lady Kennedy, and many others, referred to this tug in the task ahead of us. I was pleased that the noble and learned Lord, Lord Woolf, said that because of the tension between those two objectives, it was right that government and Parliament should now take the initiative in trying to get this balance right. A constructive process of reform usbis what he called for and what I hope we can respond to.
The noble and learned Lord also mentioned another theme that has come through—that of cost. The noble Lord, Lord Bach, referred to it as the elephant in the room. It has to be addressed. Again, many noble Lords referred to this. We are urgently assessing the recommendations from Lord Justice Jackson’s report. We will try to come forward with proposals as quickly as possible. I am not sure we will follow the suggestions which the previous Government tried to get through before the election. I am not sure that that is exactly the road that we will go down. However, the way that Lord Justice Jackson and the previous Government approached these matters clearly identified that this is a key issue in this area and one that we have to get right, even if their solution to how costs should be paid was not exactly the right one. It certainly did not receive favour before the election but we are considering it urgently.
I give the usual ministerial health warnings at the beginning of a response to a Second Reading of a Private Member’s Bill. The Government will not oppose giving the Bill a Second Reading. Indeed, we welcome its introduction. As the noble Lord, Lord Lester, has indicated, my department and I have already benefited from discussion with the noble Lord and his team on this matter. We will also benefit greatly from the quality and diversity of noble Lords’ contributions today. I used to say about the distinguished crop of QCs on the Liberal Democrat Benches that if I had to pay them, I could not afford them. That is doubly true of the wealth of experience made available to us today.
I am afraid I cannot agree with the noble Lord, Lord Ramsbotham, however, that the Government should simply adopt the Bill. What I say later will, I hope, reassure him that that is not a way of avoiding action—quite the opposite. My hope is that having received his Second Reading, the noble Lord, Lord Lester, will give me and my advisers time to digest what has been said today. We will then embark on a wide range of consultations over the summer to take stock. When the House returns in the autumn, we will have made considerable progress on a draft government Bill, which we hope to publish early in the new year and make ready for pre-legislative scrutiny. As I say, this is not a vague promise of better things to come, but a firm commitment to action on this matter. Such a timetable would give us a strong case for making time in the 2011-12 legislative programme for a substantive Bill. Old parliamentary hands will know that even in that form of words, it is positively daring—certainly for a Minister of my rank—to suggest such a thing. I hope the noble Lord sees that as a sensible and speedy way forward.
We recognise the concerns that have been raised over recent months about the detrimental effects that the current law may be having on freedom of expression, particularly in relation to academic and scientific debate, the work of non-governmental organisations and investigative journalism; and the extent to which this jurisdiction has become a magnet for libel claims. These are all matters that have been covered in this debate. In reviewing the law, we want to focus on ensuring that freedom of speech and academic debate are protected and that a fair balance is struck between freedom of expression and the protection of reputation. We want to ensure that the right balance is achieved so that people who have been defamed are able to take action to protect their reputation where appropriate, but that free speech is not unjustifiably impeded. We believe that this will help to ensure that responsible journalism and academic and scientific debate are able to flourish, and that investigative journalism and the valuable work of non-governmental organisations are not unjustifiably hampered by actual or threatened libel proceedings.
I wish to respond briefly to specific points raised in the debate. The noble Baronesses, Lady Young and Lady McIntosh, referred to Mumsnet. Our law in this respect may have been developed to meet the needs of a past age. Noble Lords have referred to the internet and the convergence of media. When we conduct consultations over the summer we will want to talk to internet providers to explore their concerns. Mumsnet is welcome to express its concerns to us to explore how they can be met in legislation.
I was grateful to the noble and learned Lord, Lord Hoffmann. It was worth the entrance fee to see the jousting between him and the noble Lord, Lord Pannick. At times, you could see going through the mind of the noble and learned Lord the thought, “If ever I got you before me, young man, I’d show you a thing or two”. However, it was interesting to hear the warning about what the American legislators are up to. I have asked my department to request the embassy to let us have its thoughts on that and what implications it has for us.
The noble Lord, Lord Thomas of Gresford, and others mentioned the super injunctions. The Master of the Rolls has a committee looking at their implications and we await its report. Interesting comments were made about libel tourism. Some think that it is much exaggerated while others consider that it is a real threat. We are aware that simply identifying cases does not present a full picture. We are worried about the so-called “chilling” effect and are keen to give careful consideration to ideas for improvements that could be made to address libel tourism, including those put forward in Clause 13 of this Bill.
I was very interested in the intervention of the noble Lord, Lord Hunt. We are looking at a greater use of mediation not just here but in other areas of law. This should be developed further. It is well worth pursuing, and not just in this Bill. The Government should pursue it in other areas.
The noble and learned Lord, Lord Hoffmann, the noble Baroness, Lady Kennedy, the noble Lord, Lord Thomas of Gresford, and others referred to companies suing for libel. As part of our review of defamation law, the Government are considering whether the ability of corporations to sue should be limited in any way. We recognise the important point that NGOs have raised about the problems that they are encountering due to the threats of libel proceedings by large corporations. Clause 11 gives us substantial food for thought and will be helpful in those considerations.
The noble Lords, Lord Triesman and Lord Bew, said that the public-interest defence might need further work. We agree. There is a case for codifying it, but we want to hear more opinions about how that can be done.
Although there is considerable thought that parliamentary privilege should be covered in the Bill, there are also concerns that we want to examine further, including with my noble friend Lord Lester.
The noble Lord, Lord Triesman, asked us to refer the Bill to the Law Commission. I am afraid that if I said yes, it would confirm all the worst fears of the noble Lord, Lord Ramsbotham, that we would be engaging in delay. I am an admirer of the Law Commission and we will take any advice that we receive from it on this issue, but given the work that has been done by my noble friend Lord Lester and by the previous Administration, and given the amount of consultation that we want to consider over the summer, the way ahead that I have proposed is to move as quickly as possible to a full government draft Bill which can go into pre-legislative scrutiny with a possibility of legislation in the second Session of this Parliament. That matches the advice that we have received from a number of causes—not to rush our fences, but not to embark on endless delay. I think that we have got the right balance.
I was very interested in the contribution of the noble Baroness, Lady Buscombe. I know that her work has involved trying to get the Press Complaints Commission into shape. I welcome that. She will know that I am not the greatest admirer of the PCC. I have often said—and I said more than 10 years ago in a debate in this House—that the PCC does a good job in 98 per cent of its cases; in the 2 per cent of cases when the media see advantage, money and profile overtaking the code, the code goes out of the window. But by its deeds we will judge it. The noble Baroness has set herself a task of making self-regulation work, with public confidence, and I wish her well in that. When the owners of newspapers and journalists see entrapment and illegal activity as demeaning of their profession and damaging to the long-term interests of the media, we will all be in a good place.
The noble Baroness also threw up the challenge of the convergence of the media, which perhaps requires other parts of the media, outside the realms of the PCC, to consider coming under its code. This is certainly an interesting area that is not central to the Bill, but important to it.
Perhaps I may repeat that although the debate has to a certain extent been a lawyer fest, as the noble Baroness, Lady Young, pointed out, it has also been of value that a number of either lapsed lawyers or noble Lords who have never been lawyers have participated and brought an extremely important dimension to this task. The noble Lord, Lord Bew, pointed out the dangers to academic, not just scientific, work. The contributions by my noble friends Lord Taverne and Lord Willis warned of the dangers to scientific commentary and the testing of scientific views. The noble Baronesses, Lady Hayter, Lady Young and Lady McIntosh, pointed out that the creative industries and the arts are influenced by this issue.
It is not possible for me today to indicate exactly what provisions will be included in the Government's promised draft Bill on defamation because of the ongoing consultations to which I referred. However, a number of areas have already been subject to much discussion and I confirm that we will give further consideration to them with a view to including provisions in the draft Bill. In particular, we recognise the strength of the calls that have been made for a statutory defence relating to the public interest and responsible journalism. This is a complex area of the law and we want to give further consideration to whether and how a statutory defence can be framed in a way that is beneficial and appropriate for a range of contexts. Clause 1 of the noble Lord’s Bill provides a very valuable starting point for those considerations.
We recognise also the criticism that English defamation law has received because of the perception that libel tourism has flourished. The approach adopted in the noble Lord’s Bill offers us helpful food for thought. The Bill also includes provisions relating to multiple publications in defamation proceedings. We recognise the concerns that have been expressed in the media and elsewhere about the difficulties that the multiple-publication rule, whereby each publication of defamatory material gives rise to a separate action subject to its own limitation period, causes in relation to online material. We will consider how best to frame a single-publication rule to remove the threat of open-ended liability that currently exists. Again, the Bill provides a very interesting approach.
In addition to the areas that I have mentioned, the noble Lord’s Bill represents an extremely valuable first step in identifying a range of issues in respect of which reform will be beneficial. In particular, the Bill takes in provisions on renaming and codifying the existing defences of justification and fair comment; on the basis on which an action for defamation can be brought; on the ability of corporations to bring defamation actions; on trial by jury—the contribution of the noble and learned Lord, Lord Woolf, was very interesting and gave further justification for why we need further consultation on this matter; on defamation in the context of internet publication; and on issues relating to absolute and qualified privilege, including parliamentary privilege. These are all important issues that merit further consideration in the context of the Government’s review.
Ensuring that the right balance is struck is a difficult and sensitive exercise. It raises very complex issues on which a wide range of differing views are likely to be held. We believe that it is important to ensure that the views of all interested parties are taken into account before we move further. As I have said, we therefore intend initially to conduct informal discussions with all interested parties to ensure that we can reach a fully informed assessment of the merits of reform in those areas, and on any other issues that may be of concern. In the mean time, we wish the noble Lord’s Bill to have a Second Reading, on the basis that we are listening to those who are enthusiastically in support of it and to those who have constructive criticisms. We recognise the considerable expertise in this area of the noble Lord and his advisers, and the extensive consideration that they have given to these issues, and we are keen to co-operate further in taking matters forward. Following the informal consultation with interested parties that I have outlined, I hope that I and my team will hold further discussions with the noble Lord, possibly immediately after we return after the Recess. I hope that on the basis of our firm intention to publish a draft Bill in the first Session and our commitment to take the matter forward on a co-operative and timely basis, the noble Lord will feel able not to pursue his Bill further at this time.
We have had a debate of much wisdom and wise advice. We are not rushing to legislate, but considering very carefully how to proceed. The way ahead that we have set out reflects the sense of urgency that has been present in this debate, but also has the right balance of caution that has been another underlying theme. I hope that the Bill gets its Second Reading and look forward to the noble Lord's response.
Lord Lester of Herne Hill
My Lords, the noble Lord, Lord Campbell of Alloway, once rebuked me for making a serious speech after the dinner hour and I am very aware that I am about to make a short speech after the lunch hour. Let me make a few points very quickly.
On the subject of compliments and flattery—this House is an admirable example—I say, with the noble Lord, Lord Bew, in mind, that there were two 19th-century historians, Freeman and Stubbs. A wit wrote of their reviews of each other’s work:
“Ladling butter from alternate tubs,
Stubbs butters Freeman and Freeman butters Stubbs”.
Having said that, I should say that the two maiden speakers deserve all the compliments that have been paid to them.
On the subject of my becoming the Earl of Leicester, I should add not only that there is already a noble Earl, which is why my name is Lord Lester of Herne Hill, so that people who cannot differentiate spellings can understand, but also that I am reminded of Sir Stephen Sedley, who, when faced with a pompous colleague of mine who had made himself honorary life president of a lawyers’ body, said: “Why only life?”.
I pay tribute to the noble Lord, Lord Bach, to Jack Straw and to the former Government, who initiated serious reforms in this area. I was glad to hear what the noble Lord said today. I agree with him very much on the need for urgency on costs; we should not wait for wholesale reform.
I say to the noble Baroness, Lady Hayter, that I thought that I was chairman of the Fabian Society and not its treasurer. I should like that to be looked at.
Let me quickly deal with a few points. I thought that we had covered Mumsnet but, if we have not, plainly it should be regarded as a mere facilitator and therefore not liable.
The speech made by the noble Baroness, Lady Hayter, as a consumer champion was extremely important. I agree with what was said about self-regulation and the role of the PCC. I also agree with the scepticism of the noble Lord, Lord McNally, about where we are with the PCC. I hope that it can be strengthened.
I agree with the noble and learned Lord, Lord Hoffmann, that the problem of libel tourism has been greatly exaggerated. The real problem is not so much libel tourism as our domestic libel law. He may not know this, but we dealt with a form of libel tourism when the noble and learned Lord, Lord Mackay, was Lord Chancellor. We were worried about Singapore bringing its libel law into this country. When we harmonised tort law, we retained the double actionability rule for defamation cases, so that a foreign claimant could bring a libel claim in this country only if they could show that the case was actionable under English law and not merely under Singaporean law. That was one way in which we dealt with that form of libel tourism.
The noble Lord, Lord Willis of Knaresborough, in his most memorable speech, made an important point. He asked why we had not confined companies to malicious falsehood. That is an interesting idea. In a case that I did, the Derbyshire case, the House of Lords decided that public authorities—Governments—could not use the law of libel but had to proceed under the tort of malicious falsehood, which makes me wonder whether we have got that right in the Bill. Perhaps the right thing to do would be to extend the notion of public authority to certain classes of corporation and treat them in the same way. However, that is a difficult area and I am sure that we should all like to think about it more.
Of course, ADR and mediation are vital. However, we have not dealt with that area in the Bill because a distinguished former libel judge, Sir Charles Gray, is chairing a working party on that subject, although I do not think that it has yet produced its report. When it does, we very much hope that that will happen, so legislation is not needed.
My noble friend Lady Bonham-Carter, speaking with a marvellously husky voice and sacrificing her health, mentioned a number of matters. I was reminded that Quilliam, a body dealing with extremist activity, especially among Islamic fundamentalists, told me that when it made criticism of the Islam Channel, it was threatened in a very coercive way with libel proceedings—that is, Islam Channel, the broadcaster, was threatening action against Quilliam as a small NGO. When journalists writing for the LSE’s Beaver magazine criticised a lecturer for allegedly spreading fundamentalist views, the threat was made that, unless they disowned Quilliam and what had been said, it would be all the worse for them. Those are examples of, as it were, the other side of the equation.
I want to mention two examples from my practical experience of my attempts, in the words of the noble and learned Lord, Lord Woolf, to persuade the courts to reform the law. I suspect that the first will amuse the noble and learned Lord, Lord Hoffmann. When I was arguing the Reynolds case, the noble and learned Lord, Lord Steyn, looked at me and said, “What about German ad hoc balancing law?”. I asked, “What about it?”. He said, “Do you know about it?”. I said that I did not, to which he replied, “Well, you had better know by tomorrow morning”. I knew then that I had lost. He was referring to a notion in German constitutional law about which his co-pupil, Basil Markesinis, had published a book dealing with what is known as ad hoc balancing. The trouble with Reynolds was that it applied German constitutional law—ad hoc balancing—to English libel law. The result was to create great uncertainty, which the noble and learned Lord, Lord Hoffmann, and others sought to address in the Jameel case. However, the continental and German approach triumphed over a more common law approach.
The other example was brought to mind by what the noble Lord, Lord Bew, said regarding Northern Ireland. I was in a case called Convery v Irish News, in which a food critic, Caroline Workman, was cross-examined for more than three days as to whether the vegetables in the restaurant about which she had written a disrespectful review were or were not as she said they were. The judge, jury and counsel all misunderstood the true nature of the defence of fair comment and treated it as though it were the defence of truth. She was cross-examined for four days. The newspaper was made to pay, I think, £25,000 in damages and £100,000 in legal costs but it won on the appeal, in which I appeared. Caroline Workman was so distressed by her experience as a victim of libel law that she gave up her profession of journalism altogether.
That is the other side of the coin compared with the description given by the noble Lord, Lord Triesman, of claimant victims who are not treated justly. I am grateful to the noble Lord, Lord Triesman, for his criticism of the Bill; one needs to hear that. However, if he is so concerned about claimants, I wonder why he does not deal with poor claimants. They are not the ones who go to court, and there is no legal aid for poor claimants. The problem with the conditional fee agreement and the 100 per cent success fee is that they are not normally for poor claimants, but for very rich ones. If we ask the claimants’ lawyers for particulars on their success rate, we find that the CFA people are on the side of rich claimants, and that is where the law is profoundly unequal.
I am not concerned with producing a Bill for the entertainment industry or the media; I am concerned with producing a Bill that protects the ordinary, individual citizen/critic, the small NGO, the regional newspaper, those from the arts and sciences, and so on. I am very glad that the noble Baroness, Lady Young of Hornsey, agreed to take part in this debate, and I am glad that others who are not lawyers took part. This is too important a subject to be left even to the legal profession. The noble Lord, Lord Pannick, asked why Clause 12(2) is necessary. I think that he is right that it is not necessary, but we put it in to show how conspicuously moderate we are. We may have been too moderate in that respect.
Finally, I must say that when I hear my noble friend Lord McNally speak as he did just now, I wonder whether I am alive at all or whether I am in heaven. I never thought to hear such a reply. His remarks are extremely encouraging because they indicate an open-mindedness to reform, a willingness to get on and to listen. I am sure that it is better for the Government to have a draft Bill and a Joint Committee of both Houses to look at it; and then, hoping that we are in good health, we could have an actual Bill, which I hope will start in this House rather than in the other place. This House, as we know, has very special qualities. On that basis, I ask the House to give the Bill a Second Reading.