Defamation Bill

Debate between Lord May of Oxford and Lord Browne of Ladyton

Monday 17th December 2012 Grand Committee

[Lord Browne of Ladyton]

I accept what the noble Lord has said and I respect it enormously. I do not treat it light-heartedly. I think he makes a serious point. I feel I may have lost my powers of advocacy actually because I was not seeking to argue to change the words. I was seeking simpler clarification of the words and was using the only device that is open to me in these circumstances. I may not have served that purpose and may have opened up the opportunity for debate, but I do not think that I have done anything other than give some people who are not lawyers a window into the world that we will be living in when lawyers get hold of what we produce.

[Lord May of Oxford]

I do bear in mind that we want to move on. I may well have missed some of the points, but I think part of the missing of points is cultural sliding past each other. I completely agree with what the noble Lord has just said. One ideally wants a simple procedure where a good judge hears what it is all about from well-chosen people. However, I reel back in dismay when I hear other people who said that he examines the material that has been assembled. The noble Lord clearly does not mean that and if it is going to be like that then I am with him.

My one experience of this kind comes out of the Meadow case. Noble Lords may remember this incompetent statistician who created a quite serious set of problems. In the wake of it, some of the medical statisticians at the Royal Society said, “Why don’t we make a report on it?”. I said, “No, why don’t I talk to Hayden Phillips and we will get together with some legal people to ask how we can be more helpful?”. Indeed, we got together with Igor Judge, the noble and learned Lord, Lord Judge, this was before he was Lord Chief Justice, and had a very interesting conversation but it was slightly strange.

I do not apologise for boring noble Lords with this because I think it is illustrative. When I was in school, we had a rather good debating team which consistently beat the debating team led by Murray Gleeson. The captain of our team is now a High Court judge in New South Wales. They have a new way of handling expert witnesses, which is along the lines that the noble Lord just advocated. Instead of getting a credentialed expert witness such as Meadow or somebody else from a company that gives credentialed expert witnesses who are often not very expert, the judge asks appropriate people who would be a good person to bring in. Then he holds a mini tutorial in which the two sides are able to ask questions, but one seeks understanding. The whole Meadow thing would never have happened had that been done.

However, after we had presented this idea and a willingness to help do it, it was explained to us that we simply did not understand. We were missing the point of the legal system. What would be really appreciated would be if the Royal Society would set up a committee to formally accredit expert witnesses, which did not seem to us what the debate was about. I am worried that what is being described and what is in your Lordships’ minds are not easily going to be translated into anything that is not almost as expensive as what is currently being used as a weapon. In the situation involving Nature and Simon Singh, the people who were being criticised did stand to lose by the criticism, but the expert opinion was that the criticism was valid. It could have been settled by a judge in half an hour, but the defence cost Nature £1.5 million.

[Lord Browne of Ladyton]

I am again grateful to the noble Lord, Lord May, whom I think I misnamed earlier. However, I have no intention of going any further with this, having made the point I want to make at this stage. I am grateful to the Minister for his response. He has added to my understanding of what the Government are seeking to achieve, and I broadly support that. If it achieves the objective, I will go away and think long and hard about what is now on the public record. If that is sufficient, I will abandon my search for any further clarity in this area. If it is not, I may of course return to this issue at some later stage in the Bill, but for the moment I beg leave to withdraw the amendment.