King’s Speech

Lord Bew Excerpts

Wednesday 8th November 2023 Lords Chamber

[Lord Bew (CB)]

My Lords, I rise to say, as so many from the Cross Benches have said, how much we grieve the loss of a very distinguished convenor. It has overshadowed somewhat the debate for many of us, particularly on these Benches.

I will address the topic of devolution, particularly the crisis of devolution in Northern Ireland, and the fact that at this point we are not sure that it will return. I am particularly keen to deal with an idea that I picked up in the streets of Belfast—that it is desirable to wait for a Labour Government, and at that point possibly, if there are any movements on devolution, act. I draw attention to Tony Blair’s speech, which set the framework for devolution throughout the United Kingdom, in Balmoral in Belfast in the autumn of 1997. There, he declared firmly that he was not neutral on the union, as in effect Keir Starmer has done in some recent pronouncements. But this is not a blank cheque. What Mr Blair said there is that his support for the union was based on power-sharing devolution plus an Irish dimension. That is how he talked about the new devolution in Scotland and Wales; that is how Northern Ireland would fit into the United Kingdom.

That is the classic Labour position. There is no more unionist position within the Labour Party. There are many less unionist positions in the Labour Party—many who insist that the Good Friday agreement means that a parity of esteem means that this talk of Blair saying that, in this context, he supported the union is not right. But that is the classic position and almost certainly the Starmer position. It does not seem to me therefore that this is a case for waiting for a Labour Government. The time to act on devolution and getting institutions up and running again is now.

This is the first King’s Speech since my friend David Trimble’s death. David deeply believed in the Act of Union. Every time he sat in this Chamber, Lord Trimble would look down at the Throne and see the crown, and would see the symbol of Ireland, the harp. He strongly believed that it was there because of the Act of Union and that the Act of Union was terrifically important. The thing he admired about the Act of Union was the obvious attempt to enhance the growing commercial success of Belfast’s exporting classes in 1800. The protection of the export potential of those classes is a subject we will probably have to return to before this matter is sorted out.

He was also strongly aware of the strategic significance of Ireland, which is very important if one is talking about the Act of Union. At this point, the strategic significance, often forgotten in this country, is alive again. The war in Ukraine is actually not particularly divisive. Northern Ireland, because it is part of NATO, has played a greater role in some of its industries in supplying Ukraine, but it has to be said that the Republic of Ireland has done a marvellous job in receiving Ukrainian refugees. But the war now in the Middle East is terribly divisive—indisputably so. There is a division between the two countries on that, and it is making it harder between the two communities on that point to see the return of devolution. The unionist community broadly supports the position of the main parties in this House, in the British Government and the American Government. The nationalist community does not. There is a campaign against Hillary Clinton as chancellor of Queen’s because she is seen to be a supporter of Israel. The Irish Government in China just yesterday issued a joint statement with the Chinese calling for a ceasefire, and so on. There is a major difference there. Again, we are going to have to talk about this before we get devolution sorted. It is very unfortunate; it was not as if we needed any other sources of difference.

I would like to make one final point about my friend the late Lord Trimble, who quite rightly won a Nobel Prize for trying to follow the path Tony Blair set out. The last thing he published before he died—we do not know what he would have thought of the Windsor Framework as he did not live to see it—was an introduction to a paper by Dr Graham Gudgin that was an attack on the idea that the protocol itself was determining that Northern Ireland was going to be observed at an economic level in the Irish Republic. Dr Gudgin says that no, Northern Ireland is so heavily tied into the United Kingdom that that is simply not happening. That was the last thing David Trimble published before he died. His name is now used all the time in the struggle against returning to devolution. It would amaze him. He saw the great achievement of his life as the Good Friday agreement and the structures that flow through it.

I want to conclude by talking just a little bit about how we need to look at things in the round. This is not the first time that Northern Ireland has felt, with good reason, that it was not treated equally in an international treaty with a foreign power. In 1938, exactly the same thing happened when the Anglo-Irish trade deal was struck. Northern Ireland had suffered most in the previous trade war and got the least out of that deal. In the other place in 1938, its MPs all declared, “We’ve been treated with a lack of equality” and that other British suppliers et cetera had been given more in the deal. They were right to say so. By the way, because they assumed the Government of Ireland Act was the key legislation, they did not say “Because of the Act of union we have a case”, they just said, “We have a case” when they debated this in the House.

The matter was resolved essentially by the UK Government striking a deal with the Stormont Government that basically paid Northern Ireland’s dole bill in 1938 when so many people were unemployed because of the collapse of the shipyards and heavy shipbuilding. Essentially, it was resolved by saying that in future Northern Ireland would not have to pay for itself, as statute—the Union with Ireland Act and the Government of Ireland Act 1920—required, but that in future the UK would lift the burden and deliver equality of social services. I simply say that that suggests that we should look at these questions of equality or inequality in trade agreements in the round. A wider picture should also be taken into account in the current debate in Belfast.

Human Rights: UK Application

Lord Bew Excerpts

Wednesday 18th November 2015 Lords Chamber

[Lord Faulks]

I am extremely hesitant to answer a question of law from the Dispatch Box. That is a matter that I will consider and write to the noble Lord about. It is a matter of concern for the Secretary of State and I am sure that it will continue to be, as it is for the Ministry of Justice as a whole.

[Lord Bew (CB)]

My Lords, does the Minister acknowledge that public opinion in Northern Ireland on this matter is changing rapidly? A few months ago, the Assembly voted on it, and there was a narrow vote against change. Very recently, there was a narrow vote for, which fell on a technicality. There will be a general election shortly, which will change the composition of the Assembly. Does the Minister agree that it may be better to leave this for the normal process of public opinion in Northern Ireland, which is moving very much in the same direction as public opinion in the Republic? Might this not be better than at this point raising issues such as Article 14 of the Strasbourg convention, which drove reforms on this issue in the past in Northern Ireland and could do so again? At this point it might solve itself naturally.

[Lord Faulks]

I am very grateful to the noble Lord. I have followed and been told about the progress at the moment and the fact that it was by only a narrow vote that the matter did not progress further. I think there may be something in what the noble Lord says about allowing the matter to develop and hope the solution will come without the rather more draconian measures which have been suggested.

Queen’s Speech

Lord Bew Excerpts

Monday 1st June 2015 Lords Chamber

[Lord Bew (CB)]

My Lords, the gracious Speech includes one very important sentence as far as Northern Ireland is concerned:

“Legislation will be taken forward giving effect to the Stormont House Agreement in Northern Ireland”.

Ever since Her Majesty uttered those words in this Chamber, it has become clear that the Stormont House agreement barely exists as a consequence of the stand-off in the votes in the Northern Ireland Assembly. Over the weekend there were what appear to be well-sourced reports in the Northern Irish papers about the possibility of a Stormont House agreement mark 2, but at this point the Stormont House agreement is in a fairly parlous condition.

This is not the Government’s fault. There are a number of miscalculations involved. It may indeed be that, like so many people, Sinn Fein believed the polls during the election campaign and believed there would be a change of Government, which would allow it at least a face-saving move in the context of the austerity issue. I do not actually believe that, had there been a change of Government, there would have been a really significant change in the public finances of Northern Ireland and at Westminster, but there clearly could have been an atmospheric change, which would have been helpful to the Sinn Fein leadership. Anyway, the miscalculation has been made and they are now in a difficult position. The consequences of the arrangements in Northern Ireland are that we are all in a difficult position. It is a difficult moment and it is quite hard to see how Northern Ireland will extract itself.

In his important speech introducing the debate today, the Minister stated explicitly that the Government intended to legislate anyway for those elements of the Stormont House agreement that lay within their sole area of responsibility. He included in this respect measures for dealing with the past and the legacy of the Troubles, proposals that essentially emerged from the Haass talks some time back. I have no problem in principle with the suggestion that the noble Lord articulated about the need for an oral history archive. I only wish to say that I speak from fairly bitter personal experience, having been involved in the setting up of an oral history archive at Boston College, when I say that these things can become very fraught, very difficult and very painful. Very careful thought is required so that this particular idea does not run into some of the same difficulties that we ran into. I am afraid that good intentions, in this respect, are not enough.

I wish to advance one point with great seriousness: the need for a government strategy in this area that is more proactive than it has been in the past—I speak of both the Conservative/Lib Dem Government and the Labour Government, which were so important during the peace process. In handling the past, we have actually managed to garner essentially the worst of both worlds. A classical example is the decision, which is confirmed in the Conservative manifesto, that there should be no general amnesty. There are very good reasons for this, not least the provisions of the Good Friday agreement, which the noble Lords, Lord Trimble and Lord Empey, played such a role in bringing about in 1998. That having been said, the on-the-runs controversy has convinced many ordinary citizens that there is in effect at least a partial amnesty for terrorists. Therefore, we have garnered, in a sense, the worst of both worlds. The Government’s posture is typically defensive and crouching. Somehow, details and stories of allegedly nefarious activity by state agents—sometimes not allegedly but definitely nefarious activity by state agents—keep coming out, again and again and again, most recently in last Thursday’s “Panorama” programme.

I want to argue that there needs to be a moment of reflection about what information to release and how to do it. The manifesto commitment of the Conservative Party says something very interesting. It says that, in government, it is not going to be party to rewriting the past—logically, that means rewriting the past in the interests of terrorists. However, that cannot be left just as a pious hope or aspiration. Thought has to be given to the contextualisation of material and, I suspect, a fairly radical approach to the release of the material, but not in some sort of vacuum.

Let me say something that struck me very forcibly last week when Sir Brian Cubbon’s death was announced. Three decades ago, Sir Brian Cubbon was in the car in which the British ambassador to Dublin was blown up and killed. Judith Cook, a young official who was a contemporary of mine in Cambridge, was also killed, and Sir Brian was badly injured. Cubbon was a great patriot at the centre of policy; later, he would be in the Home Office as PUS, but in the late 1970s he was in Northern Ireland. Cubbon is now gone. He is now not available to explain to us the context of policy and the difficult decisions that any liberal democratic state has to take in the face of a dirty, sectarian war and terrorism. It is this type of testimony that the Government should be preserving. It is quite remarkable that, if you want to learn about the mistakes that the British Army made on Bloody Sunday, we have published a multi-volume account to tell that to you. If you want to understand what happened in the background to the murder of Pat Finucane, a multi-volume account is available to you, all published by the state. But if you want to know how a liberal democratic state tried somehow to palliate a brutal, sectarian civil war and eventually bring peace to a troubled Province, we have not a word to say.

I am really arguing here that candour is the best policy, but there is a moment for thought here. If we are going to go ahead and implement the elements of the Stormont House agreement that are not dependent on the local parties, we should take our time and reflect carefully on how we actually do it.

Defamation Bill

Lord Bew Excerpts

Tuesday 23rd April 2013 Lords Chamber

[Lord Phillips of Sudbury]

My Lords, I shall talk briefly to Amendment 2B and, in so doing, I echo what has been said about my noble friend Lord McNally. I do not know about McNally’s Bill but I certainly knew a Bill McNally, who was one of the finest poachers in Suffolk.

I am not happy with Amendment 2C, in the name of the noble Baroness, Lady Hayter of Kentish Town, but I have a lot of time for her Amendment 2D, supported by the noble Lord, Lord May of Oxford. As was said by my noble friend, there seems to be considerable anxiety around the bullying of corporations, which seems to get worse as time goes by. Some of the largest and wickedest of them are some of the most brutal in the way that they will abuse the law to silence critics.

I want to raise with my noble friend Lord McNally a point on Amendment 2B because this is potentially a Pepper v Hart occasion, where he could say in the most trenchant terms that my concern is misplaced. The amendment enlarges on Clause 1 of the Bill, headed “Serious harm”. It says:

“For the purposes of this section, harm to the reputation of a body that trades for profit”.

I am not absolutely clear that the phrase,

“a body that trades for profit”,

is beyond ambiguity. I am thinking particularly of charities, some of which trade for profit in the mainstream of the work that they do—for example, some schools, some hospitals and gymnasia. There are many areas where charities carry on a trade, but it is a charitable trade and it is, in one obvious and simple sense, for profit because it generates the wherewithal enabling them to run their hospital or whatever it is. I could have chosen language, I think, that would put the meaning beyond doubt, but we have to live with the wording that is here. As I understand it, there is no further opportunity to change the phrasing of this part of Amendment 2B. So I hope that my noble friend Lord McNally will assure me that this wording is specifically designed to exclude from its ambit the work of charities. Otherwise, I think we have a very large problem with this amendment.

[Lord Bew]

My Lords, I rise to speak to Amendment 2C. However, I feel I have to respond immediately to the words of the noble Lord, Lord Lester, which I have to say, on behalf of Northern Ireland as a region, makes me feel very uneasy.

The point about this Bill is that it is not just about enhancing press freedom but about public debate more generally, including academic freedom. I find it very disturbing that the region of the United Kingdom from which I come is opting for a more restrictive type of public debate and deciding not to engage in the wider freedoms that will now be available for public expression in the United Kingdom more generally. I find that is almost a self-mutilating act. The only thing I can say to the noble Lord, Lord Lester, is that I hope over time—but not too much time—the Northern Ireland Assembly will rethink its position. It was a position taken up when the tsunami of Leveson was sweeping over this Bill and it was not at all sure that this Bill would pass. It was a very surprising statement even in its timing. The best resolution of that would be for the Northern Ireland Assembly to reconsider, because innumerous anomalies will otherwise be created as regards the circulation of British media—not just newspapers but organs like the New Statesman and the Spectator—in Northern Ireland unless there is a rethink. I hope that there will be a rethink because otherwise it would leave us in a very unsatisfactory situation. It might be helpful in promoting that rethink if the leaderships of the parties in this House all indicated their unease with the situation in Northern Ireland. This Bill has all-party support and it might be useful to indicate a certain unease with the situation that we are facing.

Defamation Bill

Lord Bew Excerpts

Thursday 17th January 2013 Grand Committee

[Lord Mawhinney]

My Lords, my Amendments 41 and 42 have been bracketed with this amendment, and I would like to speak to them at this point. I have great sympathy with what the noble Lord, Lord Phillips, has just said about auditors, and I hope attention will be paid to that.

In Clause 7(9) the Bill has:

“After paragraph 14 insert … a fair and accurate … report of proceedings of a scientific or academic conference”.

The Joint Committee spent a lot of time talking about this. It felt strongly that peer-reviewed articles were certainly right to be covered—and I would like to pay particular thanks to the noble Lord, Lord Bew, for his considerable help in helping the committee understand the issues on this particular matter—but it was much more nervous about the inclusion of conferences. I should add that from 1968 to 1984 I was an assistant professor, a lecturer and a senior lecturer in universities in the United States, and in this country and in those capacities I attended many academic conferences, as has the noble Lord, Lord Bew, and other noble Lords.

“Conference” is a very widely drawn word. Having attended the world conference on radiation biology and radiation physics, I would have no difficulty in saying that it qualified for special consideration in the context of the Bill. On the other hand, and I speak carefully, conferences are called by a variety of people for a variety of reasons, not all of which deserve the sort of protection that we are envisaging in this legislation.

The Joint Committee came fairly firmly to the view that there ought to be protection. The wording “scientific or academic” included medicine. There were queries as to why medicine was not specifically mentioned but we thought “scientific or academic” was sufficient to cover all the academic disciplines.

We were very strongly of the view that there ought to be protection. We were equally strongly of the view that conferences ought not to be included unless my noble friend intends on Report to define, delineate and describe what the Government mean by an academic conference, or unless he wishes to add regulations about the reviewing of contents of conferences to bring them into line with peer-reviewed papers.

Amendment 42 adds to peer-reviewed papers coverage for material in archives that is of academic importance and subject to the ground rules specified in the particular amendment. The effect of the two amendments together is strongly to endorse peer-reviewed scientific and academic papers, to remove the Government’s intention to include conferences and to add authentic archive material.

[Lord Bew]

My Lords, I rise to support the amendment moved by the noble Lord, Lord Mawhinney, and to say that he has accurately recalled the discussion and the feeling of the Joint Committee. My sense is that we actually did get differing evidence. For example, I seem to recall that the Master of the Rolls was sceptical about extending privilege to academic conferences for the reasons that the noble Lord, Lord Mawhinney, has given us. On the other hand, we had a former Lord Chancellor, for example, who took the view that it was right to extend privilege. So there was a genuine difference of evidence from significant people. We were certainly much keener to protect peer-reviewed journals than we were to offer a new measure of protection for conferences for the simple reason that all of us who are academics have attended conferences that we are not sure would deserve this privilege. The Government may well have things to say to expand their thinking to produce a more enthusiastic response—on my part, at any rate. However, it is worth saying that they were somewhat cagey on this matter.

Perhaps I may say very briefly, referring to the privilege matters discussed and to what is about to come, as the one person who was a member of the Joint Committee on Parliamentary Privilege and of the Joint Committee on the Defamation Bill, that I am finding the discussion so far extremely helpful, I expect to find further discussions even more helpful, and I am learning a lot.

[Lord Phillips of Sudbury]

Given the noble Lord’s deep involvement in this issue, I understand what he is saying about the amendment proposed. However, is he not very concerned, along the same lines, by the provisions of Clause 7(5), which would allow,

“a press conference held anywhere in the world for the discussion of a matter of public interest”,

to have qualified privilege? It seems to me that you would be in the bizarre position of having a conference to which qualified privilege did not apply, but the press conference after the conference would be the subject of qualified privilege.

[Lord Bew]

The noble Lord makes a very good point, one that I was actually aware of. While I fully understand the ambiguity to which he referred, the reason why I am more open to the provision as it stands for press conferences is that in recent time we have had, to my knowledge, at least one celebrated case where a particular government department gave a press conference and people subsequently wrote perfectly legitimate articles on the basis of what was said by that department but none the less, the case went to court and substantial payments were made.

I cannot bring myself to say that it is reasonable that if a department of government holds a press conference and people actively report or elucidate on what is said there, there should subsequently be libel actions, which there have been in recent times. That is the reason why at the moment I am living with the press conference issue.

I am open to persuasion on this question of conferences, but those of us on the Select Committee want to know that the Government have thought enough about the fact that some academic conferences are not very well run and are somewhat chaotic, and that they have some way of thinking that responds to that. A fundamental thinking of our committee was that the deepest problem is that academics, in the sciences or in the humanities, can be driven by their research to certain conclusions, and at this point there is a chill point that means they would discover it was difficult to find an academic outlet because a journal might say, “Our budget is so small that if there is a libel action here, even though your research looks very interesting to us, we can’t possibly publish it”. We know that this is currently going on, and that seems to be the greatest single evil in this field that needs to be addressed. I feel less concerned in principle about defending the rights of someone who may be spouting off a little at a conference.

[Lord Lester of Herne Hill]

My Lords, I had not expected to need to reply about press conferences but, in the light of my noble friend Lord Phillips’s intervention, I better had. This question was dealt with by the House of Lords in a case that I was involved in called McCartan Turkington Breen v Times Newspapers, 2001 2 Appeal Cases, 277; the noble Lord, Lord Bew, may remember it.

[Lord Bew]

I do indeed.

[Lord Lester of Herne Hill]

What happened was that a soldier was found guilty of murder for, I think, killing a woman at a roadblock in Northern Ireland and sentenced to imprisonment. He was represented by a firm of solicitors in Northern Ireland. A group of senior military men had a meeting in a castle in, I think, Yorkshire in order to accuse the solicitors of negligence in the way that they had gone about defending the soldier. The meeting in the castle was open to the public, but very few members of the public were in fact able to get in. The law firm sued for libel and the defence was that it was a public meeting and therefore covered by statutory qualified privilege. The argument was that it was not really a public meeting but a press conference; they gave out a press statement and it was in a castle.

Lord Bingham gave the lead judgment, making it clear on free-speech grounds that the press are the eyes and ears of the public, and that where the public cannot get in easily on an occasion like that and the press can, the press must be free to make a fair and accurate report—it must be fair and accurate—of what is alleged at the press conference, which is to be treated as a public meeting.

On Article 10 grounds, the House of Lords clarified the meaning of “public meeting” to include press conferences. In fact my memory, although I may be wrong, is that the Faulks committee in 1975 had recommended that press conferences should be included. So I have no difficulty at all with the express words in the Bill making clear that it covers press conferences anywhere in the world, for the reasons given by the House of Lords, per Lord Bingham, in that case. My difficulty is with what is to be done with the amendment tabled by the noble Lord, Lord Mawhinney. I was looking at the Joint Committee report about it. Paragraph 48 states:

“The draft Bill goes some way towards tackling this problem by extending qualified privilege to include fair and accurate reports of what is said at a ‘scientific or academic conference’. We welcome this development, provided the conference is reputable”.

The report goes on to deal with peer-reviewed articles and recommends extending it to peer-reviewed articles in scientific or academic journals. Then, as the noble Lords, Lord Bew, and Lord Mawhinney, have done, it explains the definitional problems, and towards the end it recommends,

“that the Government prepares guidance on the scope of this new type of statutory qualified privilege in consultation with the judiciary and other interested parties”.

As I read this, the Joint Committee are saying that it is a good idea, but there are definitional problems, so include it, but with proper guidance.

Defamation Bill

Lord Bew Excerpts

Tuesday 15th January 2013 Grand Committee

[Lord Bew]

My Lords, I thank the noble Lord, Lord Hunt of Chesterton, for putting forward this amendment, and I am very sympathetic to his efforts. However, the noble Lord, Lord Browne of Ladyton, has asked one question and I will ask two questions in the same vein. This is just for reassurance, because I think that we understand that there could be great benefit from this amendment, and a powerful case has been made.

First, the noble Lord knows this world and the world of academic journals. Is he sure that the person editing a website for a chartered professional association is necessarily of the same calibre as the person editing a peer-reviewed academic journal? The second question is related, and perhaps more profound: is he sure that there is the same requirement for qualified privilege as there is in certain areas for academic journals, where there clearly is a severe chilling effect? The questions are in the same vein as those posed by the noble Lord, Lord Browne, but are in the vein of a very sympathetic interest in the proposal that the noble Lord has put to us. He is quite right to say that he is speaking entirely in the spirit of Clause 6. I would like to have a little more reflection on the detail.

[Lord May of Oxford]

It is perhaps a little more complicated than some people think. I am not sure that people understand that some journals are purely electronic. Some of the major journals—PLOS ONE, for example—are online, while most of the conventional, older journals offer an option to publish additional material electronically. More than half the journals are run by the same learned societies that the noble Lord, Lord Hunt, is talking about, so it is not a juxtaposition of things that you can physically hold up and others. It is a seamless continuum, and the spirit of this definitely needs some refining to make central what has been said so clearly: that the issue is peer review.

Defamation Bill

Lord Bew Excerpts

Wednesday 19th December 2012 Grand Committee

[Lord Bew]

My Lords, I support government Amendment 14. The recollection of the noble Lord, Lord Mawhinney, of the committee’s discussion of this matter is entirely fair, in that this discussion has moved on over the 14-month period. However, as the noble Lord, Lord Marks, said, we discussed at various times our view of the checklist approach, as was embodied in the Reynolds defence which will now be abolished. We heard quite a lot of evidence that it was not working particularly well, but it was not radically unworkable. On balance, it has not been working well enough. There were real issues with the ways in which certain newspapers were working or not working with it. I accept completely that, in the main, the discussion has moved on over the past 14 months, and the evidence was clear that it is not working well enough. I balk slightly at the idea that it was absolutely unworkable.

I think that we are doing the right thing. I am grateful to the noble Lord, Lord Lester. It is not his wording, but we all know how much work he and the noble Lord, Lord McNally, have put in on the rather neat formulation before us today.

I am slightly surprised that an unintended implication of what we are doing has not been picked up on thus far. Listening to the debate in the other place on the Leveson inquiry, much reference was made to the Irish model. Indeed, some Members of the other place obviously thought that there was a great similarity between the Irish model and what Lord Justice Leveson is recommending. There is one respect, at the heart of what we are doing today with Clause 4, in which it is quite important to note that that is not so. It appears to be the opinion of all parties in both Houses that we need this public interest defence. It is not part of a transaction. The Prime Minister recommended that Members of both Houses read the Irish Defamation Act 2009. There is an implicit transaction in Section 26 of that Act: the newspapers agree to regulation because, by that means, they are more likely to be able to offer a defence of this sort of public interest defence.

It is apparently the forming view of Parliament that this is not a matter of a transaction. The noble Lord, Lord Lester, referred very eloquently earlier to the fact that the public interest defence ought to be available. There is no transaction there at all. We are doing the right thing, but I simply make this comment because people are talking a little too easily about transferring the Irish model into our affairs. The Irish model is constructed on a different principle, and we are going ahead on a different basis.

Defamation Bill

Lord Bew Excerpts

Tuesday 9th October 2012 Lords Chamber

[Lord Bew]

My Lords, I support the Bill. At this late stage, I do not wish to repeat many of the points that have been made so excellently in the House this afternoon, except in one respect. I want to repeat the thanks to the noble Lord, Lord McNally, for the letter that he sent earlier this week, for his introduction to the Bill and for his interest in this subject throughout. I also thank the noble Lord, Lord Mawhinney, who chaired 18 meetings of the Joint Committee with great skill and brought us to a set of very important and useful conclusions. I thank, too, the noble Lord, Lord Lester of Herne Hill, who has campaigned with such great subtlety on this matter for some years. On that point, recalling the debate that the noble Lord introduced in June 2010, it is very pleasant to note how we have moved on. Listening to the debates in the other place, it is clear that there is considerable cross-party consensus. I think that on an issue such as libel tourism there is now a consensus which did not exist in the summer of 2010.

The noble Lord, Lord Mawhinney, was kind enough to recall that in the Joint Committee I was very concerned about academic freedom, which is dealt with in Clause 6. I want to say how happy I am that we have faced up to this important matter in the Bill. The most important point is that within academe—the noble Lord, Lord Hunt, touched on this—there is not the freedom that many people outside academe believe exists. There are challenges to free speech. Those who edit academic journals and run university presses do so on a shoestring, so the possibility of any type of libel action immediately, quite understandably, produces a massive chilling effect, and we all suffer from the fact that in the current climate academics cannot say things which their research has driven them to believe to be true.

The noble Lord, Lord Sugar, made a very good point when he talked about the popular press being driven by money. I understand why he makes that point but it does not apply to academics—they are driven by many things, but not by money. It is very important for the health of our democratic society that we have freedom of expression and a zone of protection for research and the reaching of conclusions which may indeed be unpalatable to others. None the less, when we discussed this matter in the Joint Committee, we were often worried—this point was frequently raised by the noble and learned Lord, Lord Morris—about unintentionally creating cottage industries by advocating something which seemed to us banal at the time but which might open up a whole set of other legal problems down the road. I think that the drafting of Clause 6 is rather fine in principle because it avoids that issue. Although in general academics believe in the desirability of qualified privilege for statements in peer-reviewed journals, they also know that not all academic journals are as rigorously and well run as others. One possible way out of this problem is to have a list of the ones that are considered to be the well run academic journals. However, the method adopted in Clause 6 is better than that. It emphasises the correct procedures for running an academic journal and a peer review. That is the right way to go and it is a very happy piece of drafting.

Perhaps I may add one thing, and it is a minor caveat. I hope that the words “academic matter” in Clause 6 are not used in the way that sports commentators use them. When a team is losing 5-0 and somebody scores a goal two minutes from the end, the commentator always announces, “Well, they’ve just scored but that’s an academic matter”. I hope it is assumed in Clause 6 that an academic matter can sometimes be very serious. Assuming that the use of the term “academic matter” is not that of the sports commentator, I am very happy to endorse Clause 6.

I repeat my fundamental point: there needs to be a zone of qualified privilege because the quality of our democratic life suffers if academics driven by a research conclusion feel unable to state that conclusion.

Freedom of Information Act 2000

Lord Bew Excerpts

Tuesday 17th January 2012 Lords Chamber

[Lord Bew]

My Lords, I thank my noble friend Lord Hennessy for initiating this debate. My remarks will follow broadly in the spirit of his remarks and, like him, I have to declare an interest as a practising university historian, at Queen’s University Belfast, and as secretary of the All-Party Group on Archives and History.

There is an important Irish dimension to this question, relating to the decades of commemorations that are about to come upon us in Ireland: of the signing of the Ulster covenant, the Easter Rising and the war of independence. There are still important documents in Kew that have not been released in this context. I am interested because historians need to be armed. Quite rightly, there is a certain nervousness in both Governments about the emotional consequences of some of these commemorations. For some, they are a rather bad model—the argument is that the commemoration in 1966 of the Easter Rising played a role in triggering the subsequent Troubles. Historians need help, and we have formed an ad-hoc group of historians on a north-south basis, under the chairmanship of Professor Eunan O’Halpin of Trinity College, Dublin. We all feel that the more help that we get from Governments to release documents, the more valuable we can actually be.

I am not talking about spasmodic release. For example, when Tony Blair was Prime Minister, Bertie Ahern, the Irish Taoiseach, wrote to him and said, “Could we please have Roger Casement’s SIS files released?” and they were released. I am talking about something somewhat more systematic. There is one thing in particular that Her Majesty’s Government could do: they could get in touch with Commonwealth states—Canada, Australia, New Zealand—and say to them that they could safely declassify Irish material from the period 1913-23. We strongly suspect that it remains locked away because it contains security-related exchanges with London that no longer have any particularly poisonous dimension to them. I very much hope that the Minister, who has been a friend to historians, will help us in this matter.

However, I would like to add something slightly more cautious in the spirit of my noble friend Lord Wilson’s remarks about the move to a 20-year rule. I am certain that before long our political class will agree to this, and there is a reason for that. Even the great figures of our current political class, a Thatcher or a Blair, are at the top for only 10 or 11 years, so a 20-year rule is something that they can feel quite comfortable with. For good or for ill, there are no longer any Mr Gladstones, who sat in Peel’s Cabinet in the 1840s and was putting through the third Home Rule Bill in 1893. If we had politicians who spent 50 years at the top, I am certain that we would not be talking about a 20-year rule.

It is not politicians or their reputations that worry me; it is the young officials. I have talked to members of the committee that made this recommendation, I believe that it is the spirit of the times and I support it broadly. However, even under the 30-year rule young civil servants have been embarrassed by material that has been released. We need to be a little cautious about this matter.

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.