Defamation Bill

Baroness Bakewell Excerpts

Monday 17th December 2012 Grand Committee

[Lord Lester of Herne Hill]

My Lords—

[Baroness Bakewell]

My Lords, my contribution to this debate will be anecdotal. I am a lay person. I am not a very experienced parliamentarian. I am a journalist. Even as we were debating the Second Reading of this Bill, events were engulfing the BBC in the most significant scandal of recent years, involving all the very issues that concern us here.

Early in October, a programme on ITV disclosed that Jimmy Savile had been abusing young girls for over 40 years in his television career. He had died in October 2011 and within two months BBC “Newsnight” was embarked on a programme disclosing these allegations. That programme was dropped and never transmitted for reasons that are even now the subject of two BBC inquiries; one conducted by Nick Pollard and one under Dame Janet Smith. Everyone must agree that it would have been in the public interest if the activities of this man could have been brought to light much earlier in his career without having to wait for his death.

Disasters continue to pile up at the BBC. On 2 November, “Newsnight” broadcast a report of abuse at a children’s home, in which the claims of one of the victims led to widespread dissemination of false allegations against Lord McAlpine. These allegations against an individual, who was not named by the BBC, proliferated fast and far on social networks, with individuals simply retweeting on their own sites to their many followers, who did the same. Five days later, the Guardian named Lord McAlpine as the subject of mistaken identity. Numerous law cases have ensued. The wider public has been excited by all these goings on and confused about what is and is not allowed in law. Lord McAlpine has gone to law, and substantial costs are being awarded to him in cases of defamation, but we still have a case in which several hundred girls who were abused over a period of 50 years have not been able to get redress. I cannot address the detail of this Bill, but I know that the public must be allowed to bring to law those who have caused damage and pain. Journalists and people who report in good faith what they know or believe must be allowed to do so.

[Lord Lester of Herne Hill]

I do not know whether my noble friend Lord Hunt knows the history of this interesting idea. In 1990, when the noble and learned Lord, Lord Mackay, was Lord Chancellor, he issued a consultation paper, and it was announced on 14 May 1991 that he had decided not to recommend any change in the law. In 1948, Lord Porter’s committee came to the same conclusion, but the majority in the Faulks report—the chairman was the uncle of my noble friend Lord Faulks—came to a different conclusion, with Kimber and Rubinstein dissenting. It came to the same conclusion that the law should not be extended in this way. Sir Brian Neill’s committee looked at it much more extensively than any previous committee and it reported in July 1991. The standard textbook—Gatley—refers to that and to the way it looked at it so thoroughly. Of course, Sir Brian Neill has been invaluable on this Bill because he was one of the expert advisers, just as he was on the Bill on defamation proposed by the noble and learned Lord, Lord Mackay, in 1996. I thought it might be useful to the Committee to recall what the Neill committee stated in July 1991.

“In any event, we have come to the conclusion that the hurdles in the way of doing justice, in any of these circumstances, would be so formidable that there should be no change in the law. The difficulties, of course, primarily relate to establishing liability. The defendants would be placed at a very serious disadvantage for the reasons outlined above, principally though being deprived of the right, in relation to the alleged ‘victim’, to interrogate, to obtain admissions, to obtain discovery of documents and to cross-examine.

There might also be substantial difficulties for those suing to protect his reputation, but that in itself weights less heavily with us since they (unlike the hapless defendants) would have chosen to put themselves in that predicament. Nevertheless, we bear in mind that it is not only their interests which could be affected since difficulties in prosecuting the suit”—

that is after death, of course—

“could adversely affect the best interests of the deceased person whose reputation they would claim to be projecting.

Perhaps the most poignant example would be that where the defendants have chosen to pleased justification or fair comment. Not infrequently such a please will involve charges of grave misconduct against the plaintiff. When the subject of the libel is dead, however, there would be infinite possibilities for injustice. His reputation would be put in jeopardy not only without his consent but also without an opportunity to answer as he might have wished during this lifetime”—

as it were, Jimmy Savile. It continues:

“In our view it would be as repugnant to permit such an exercise as to allow criminal proceedings to survive beyond the death of the accused”.

It goes on:

“The majority of the Faulks Committee drew a distinction between the situation where proceedings have been commenced prior to death and that where they have not, such that in the former case the representatives would be able after death to pursue both general and special damages. In the latter case, however, only a claim for economic loss would be permitted”.

I hope the noble Lord, Lord Faulks, will not be upset by this.

“We cannot see the logic of this. It is just as difficult to pursue a claim for general damages after death, whether proceedings have been started beforehand or not. One argument put forward was that the wrongdoer should not escape having to pay general damages if the victim had formulated his claim. We do not understand why the mere formulation of a claim should change the parties’ rights and liabilities.

More importantly, since the difficulties inherent in this kind of exercise relate primarily to liability, the injustice would accrue whether the claim was limited to special damages or not. Even, however, where only damages were in issue, there could still be significant injustice in relation to quantification through the defendants being deprived of the opportunities normally open to litigants, namely with regard to interrogation, discovery and cross-examination.

We agree with the recommendation contained in … the Report of the Porter Committee … and with the minority report … of the Faulks Committee, written by Messrs Kimber and Rubinstein. We are of the opinion that no change is required to the present law, whether to enable proceeding to be brought, or to enable them to be continued, after the death of a person who is alleged to have been defamed”.

I do not apologise for reading that in because it is quite hard to get hold of the report of the Supreme Court Procedure Committee. I thought it right to do that.

Finally, I would say to the Watsons’ tragic example—and to my noble friend—that hard cases make bad law. For the reasons that Sir Brian Neill’s committee and others have said, this would make bad law.