Defamation Bill

Baroness Hayter of Kentish Town Excerpts

Tuesday 9th October 2012 Lords Chamber

[Baroness Hayter of Kentish Town]

My Lords, it is gratifying to reach this point in the debate—a debate referred to as one of “awe and wonder” by the noble Lord, Lord Black. I should certainly like to add my congratulations to the noble Lord, Lord Lester, on whose Bill I had the fortune to make my maiden speech back in July 2010.

I was also a member of the Joint Committee, chaired by the noble Lord, Lord Mawhinney, with the flair and understanding that we have witnessed today and indeed on occasion with humour and forbearance of my little misdemeanours. One of his major contributions was to the readability of that report. He was determined that it should be understandable to all because, as he said, defamation can affect everyone—the teacher, the social worker, the victim, the innocent and, particularly for the noble Lord, Lord Mawhinney, his beloved former constituents in Peterborough. He wanted all the people without recourse to a lawyer to be able to read and understand our report.

Of course, that is also one of the aims of the Bill: to bring together in one statute, without recourse to case law, the meaning and the limits of our law on defamation. That is a major aim that we should keep in mind as we consider the Bill. Does it truly consolidate, with clarity, the law on libel such that journalists know what they can write and the named can know whether they have a case against the writer or publication? More than that, we need a Bill which ends speculative cases aimed not at righting an injustice but at silencing the curious and those who criticise the rich and powerful, denying free speech. The chill factor hangs over campaigners as well as over journalists. We also want a Bill that reduces the costs of settling disputes.

As we have heard, there is consensus about the importance of this Bill, as expressed by the expert contributions of noble Lords today. That consensus has also been expressed over many years, especially by the noble Lord, Lord Lester of Herne Hill, and by my fellow Joint Committee members: the noble Lords, Lord Marks of Henley-on-Thames, Lord Bew, Lord Black, Lord Phillips, the noble and learned Lords, Lord Morris of Aberavon and Lord Lloyd of Berwick, the noble Baroness, Lady O'Neill of Bengarve, and my noble friends Lord Sugar, Lady Bakewell, Lord Hunt of Chesterton and Lord Triesman, to say nothing of my noble friend Lord Browne of Ladyton. That is a true roll call of experience and expertise.

As has been said today, part of our intrinsic democratic schema is to balance the safeguarding of our very precious freedom of speech while protecting against its misuse to denigrate others falsely, and ensuring that the law is not misused to stifle disclosure or criticism. We must permit truth to speak to power, even as we protect individuals from being trounced in the popular press or anonymously on the web.

Concern on this matter is not new. The Royal Commission on the Press, set up in 1947, acknowledged the central dilemma that a free press is essential to a democracy, but that a press driven by commercial interests is not really free. More recently, Stephen Sedley has written that:

“When the European Convention on Human Rights was … adopted in the early 1950s, few doubted that the chief threat to private life was the state—the informer, the watcher, the secret policeman. Today there is widespread agreement that segments of the press … pose a different but still real threat to private life”,

and that,

“the tabloids’ self-justification … mirrors that of the authoritarian state”.

I think that is what the noble Lord, Lord Sugar, said earlier in the debate. We need a Bill that enables serious and responsible journalists to expose misbehaviours, whether of the state, corporations, individuals or even your Lordships' House, but which protects the less powerful from an all powerful, well resourced tabloid press or scurrilous anonymous websites. They should not be given a licence to libel. As the noble Viscount, Lord Colville, has made clear, this issue of balance is key. In future we will work on this Bill to get that right.

The Opposition wants a new Bill on defamation enacted and, as many others have, we congratulate the noble Lord, Lord McNally, on ensuring a speedy and careful process, taking the Lester Bill through to a draft Bill, through the consultation, through the Commons and presenting it here today. We welcome key parts of the Bill, such as the removal of the presumption in favour of jury trials, which provides a major potential reduction in costs and allows earlier decisions and, we hope, earlier resolutions. There is the new defence for peer-reviewed material in academic—properly academic, in the words of the noble Lord, Lord Bew—journals, which was a key recommendation of the Joint Committee. That point particularly pleases my husband, who is a professor of physics and a frequent contributor to Nature and similar journals. I have now declared all my interests.

However, it could yet be a better Bill, as we have heard in this well informed debate. As the noble Lord, Lord Marks of Henley-on-Thames, has noted, the Bill fails to deal with the Joint Committee's recommendation to reduce substantially—others would say to abolish—the ability of corporations to threaten to take, or to take, individuals to court, often to intimidate them into silence. Why has that not appeared in the Bill? Is it because of pressure from business? I agree that, on the whole, this is not a party-political Bill but I sense the heavy hand of business behind that regrettable absence from the Bill. We know that companies use the threat of libel action to manage their brands and to close down criticisms of their products and behaviour. That is bullying and the Bill should prevent the misuse of the important law on libel.

In my maiden speech, I spoke about the extraordinary pressure on organisations, such as Which?, when they want to assess, on behalf of the public, the safety, value for money, effectiveness and reliability of goods or services. I ask the Minister: what in this Bill would enable Which? to expose poor-quality financial products, dangerous electrical goods, shoddy repair firms or lousy restaurants if it risks the threat of defamation and the thousands that it costs to defend such an action, no matter how weak the case?

More recently, I have been involved with Citizens Advice on the issue of civil recovery. That is a rather pernicious little device used by a number of high street retailers, such as Boots, Debenhams and Tesco, to extort money out of those accused—but not necessarily guilty—of shoplifting, via empty threats of civil court action. Citizens Advice has been hampered in exposing this racket by threats of defamation action. The organisation knows that they will never come to anything because it researches what it writes extremely carefully and makes sure that it is true. But even to answer such threats involves expensive legal time. Many of the cases quoted today, whether chiropractitioners or the magazine threatened by Nature, would have been stopped in their tracks had this hurdle against corporations being able to sue been in place.

I turn to costs, which has been raised by almost every speaker. Costs are the real killer. It is odd that one can settle party-wall issues, small claims, insolvency, even criminal cases locally at the magistrates’ court, or in the small claims court, or even in the bankruptcy court, but when it comes to libel, there are expensive lawyers—some of whom are threatening and probably in breach of their own code of conduct—vast bills, long delays and threats of costs. Those are the major determinants of whether one can pursue or defend a defamation claim. As the noble Lord, Lord Marks of Henley-on-Thames, has suggested, why are we not considering whether county courts might be suitable to deal with this?

The question of costs must be settled, or access to justice will be limited only to the most wealthy. Crucially, we must raise the bar against frivolous cases where no serious harm has taken place even if an untruth has been written. The Joint Committee recommended “serious and substantial” harm, as the noble Lord, Lord Mawhinney, has reminded us. It may be that those two words are not necessary, although I think they are different, but they would send a signal that the law should be used only in significant cases.

We also need some clarity on definitions so as to avoid more case law. We need greater certainty so that people can easily judge whether there has been defamation. Similarly, as recommended by the Joint Committee, we need clear authority for judges to strike out unnecessary actions at an early stage before costs mount up as a disease within the body, and there needs to be clear guidance for judges to exercise that authority. The consultation that preceded the Bill included an early resolution procedure which would help to lower costs by providing earlier determination of key issues, such as triviality, meaning, and questions of fact and opinion. Regrettably, the Bill contains no provisions to implement such a system, but surely it is a key requirement.

As my noble friend Lord Browne has made clear, we support the thrust of this Bill, but it could be a better Bill. In Committee, we will work with colleagues across the House to ensure that this welcome Bill is also a better one.