Defamation Bill [HL]

Lord Bew Excerpts

Friday 9th July 2010 Lords Chamber

[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.