Defamation Bill [HL]

Debate between Lord Woolf and Lord Hunt of Wirral

Friday 9th July 2010 Lords Chamber

[Lord Hunt of Wirral]

My Lords, I have much pleasure in congratulating my noble friend Lord Willis of Knaresborough on an outstandingly good maiden speech. We all found his historical analysis of Knaresborough fascinating. But most important is that he has put forward a number of compelling arguments about the importance of the medical and scientific community. I pay tribute to what he has already referred to as his career in teaching. Perhaps, as I understand it, his most rewarding period was spent at Primrose Hill High School in Leeds, where for seven years he was involved in multicultural education and outreach youth work. His subsequent leadership role in pressing for inclusive education was important, together with his support for the “family of schools” initiative. So many tributes could be paid to him, so we all greatly appreciate the fact that he is now in this Chamber and we look forward to hearing many contributions from him in future debates. Today, however, we honour particularly his leadership of the science community, which followed his election as the Liberal Democrat leader of Harrogate Borough Council, and his praiseworthy economic generating initiatives. My noble friend has outlined some important suggestions for the ways in which the Bill could be improved.

I should first declare an interest, although many of the lawyers do not seem to have done so. I am a partner in the national commercial law firm Beechcroft LLP, and I have a few other interests that I may mention in the course of what I hope will be a short speech. But I want particularly to say how much I welcome the opportunity to praise my noble friend Lord Lester of Herne Hill. He and I fought shoulder to shoulder—successfully—on the Racial and Religious Hatred Bill, and I am therefore particularly pleased to be able to refer to him as my noble friend for the first time in this new era of Liberal-Conservative Government.

This is in many ways a classic, radical, reforming Liberal-Conservative Bill, and I hope sincerely that it will win support right across the House. But my noble friend would be the first to admit—and, of course, on Second Reading we are talking about the general principles enshrined in the Bill—that while the Bill may go in the right direction, it is not necessarily perfect. Many people, notably those who have campaigned long and hard for free expression and libel reform, feel that as matters currently stand, the glass as represented by this Bill is not quite half full. I pay tribute to those campaigners, notably English PEN and the Index on Censorship for the contributions they have already made to us in preparing for this debate.

Throughout my time in this and the other place, now for 34 years altogether, libel reform has constantly been talked about, but has never really been properly delivered. In fairness, as several speakers have already pointed out, it is no simple matter. We have to balance our right to defend ourselves against being traduced by unfair and untruthful attacks with our strong presumption against any law that has a chilling effect on free expression—although in view of the earlier comment of the noble and learned Lord, Lord Hoffmann, perhaps I should say one that unnecessarily has a chilling effect on free expression. This conundrum is recognised in the European Convention on Human Rights, imported into domestic law by means of the Human Rights Act 1998, which attempts to achieve balance and internal harmony. Article 10 makes clear that,

“everyone has the right to freedom of expression”,

while acknowledging that rights and responsibilities must be carefully weighed against each other. This right to freedom of expression is therefore qualified by the need for the law to ensure,

“the protection of the reputation or rights of others”.

Article 8 also sets out the right of the citizen to respect for private and family life.

As the noble Lord has pointed out, the programme of the Liberal-Conservative Government sets out a clear direction of travel, asserting that the Government,

“will review libel laws to protect freedom of speech”.

Other noble Lords have already reminded the House of a number of recent cases that have intensified the need for change in the law. There is no time—and it would be inappropriate—in a Second Reading debate to go into detail about content. Suffice it to say that I welcome the proposals to introduce a public interest defence and to clarify the law on so-called fair comment.

I fervently welcome any measures that might serve to encourage the rapid settlement of disputes without recourse to costly—sometimes prohibitively costly—litigation. The one dog that has not quite barked in my noble friend’s Bill is the idea of introducing and encouraging pre-legal triage in cases of alleged libel. I am proud of being a fully accredited CEDR mediator and I believe strongly in alternative dispute resolution, or ADR. We use mediation in family law, arbitration in industrial disputes and tribunals in employment cases; why on earth can we not apply similar principles in libel cases?

[Lord Woolf]

We do.

[Lord Hunt of Wirral]

I would like to see it more extensively applied. Some are well known for their overall attitude towards the need for mediation, but I would like to see an early neutral evaluation of the merits of a case, ideally producing a non-binding recommendation. This would help to address the huge gulf that has grown up between the likely costs of a libel action and the ability to pay for the overwhelming majority of citizens.

In another outstandingly good maiden speech, the importance that the noble Baroness, Lady Hayter of Kentish Town, applied to access to justice lies at the heart of this debate. I declare an interest as one of the original assessors to Lord Justice Jackson’s review on costs. Ministers are now looking seriously at the conclusions of that excellent review of costs and I hope that libel reform will dovetail neatly with all the other reforms aimed at bringing costs under control.

In particular, Ministers will have to come to a view on the question of success fees after the previous botched and unilateral attempt to cap them, supposedly as an interim measure. My noble friend the Minister of State has already indicated, in response to a Question from my noble friend Lord Lester on 21 June, that he is fully aware of the crucial link. The state of the public finances has forced us all to concentrate on where economies can and must be made. However, in this instance, fiscal necessity and much needed principled reform coincide perfectly.

I hope the House today will put its weight clearly, firmly and decisively behind the principles of libel reform. Starting from first principles, our assumption must always be in favour of freedom of expression, and libel laws should not be an exclusive playground for the rich and powerful. However, let us not legislate in haste and repent at leisure. Experience tells us that libel law is not easy to reform, so let us resolve to build legislation that will last.