Defamation Bill [HL]

Baroness Kennedy of Shaws Excerpts

Friday 9th July 2010 Lords Chamber

[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.