Defamation Bill [HL]

Lord Ramsbotham Excerpts

Friday 9th July 2010 Lords Chamber

[Lord Ramsbotham]

My Lords, I, too, congratulate and thank the noble Lord, Lord Lester, for bringing forward the Bill. Not least, it has given the noble Baroness, Lady Hayter, and the noble Lord, Lord Willis, the opportunity to give their outstanding maiden speeches, on which I congratulate them both, and which have contributed so much to this debate.

Not being a lawyer, I am not in a position to comment in detail on the various clauses or any of the alleged additions or omissions to which attention has been drawn. My contribution will be devoted to explaining why I so strongly support the Bill, conscious that alterations can, if necessary, be made if it goes forward to the normal legislative scrutiny. Like many people, I am disturbed by what appears to have happened to the line that was expressed so clearly in the opening paragraph of the Explanatory Notes:

“The common law of defamation … is based upon the civil and private right of every individual to the unimpaired possession of his or her reputation and good name. The general rule is that no one may speak falsely of his or her neighbour, and that it is in the public interest that ‘the law should provide an effective means whereby a man can vindicate his reputation against calumny’”.

If that is being drawn into doubt then something is clearly wrong.

In this connection, like many other noble Lords, I have been bombarded with briefings and comments on aspects of the Bill that I have read with great interest and from which I have learnt a lot. I join the noble Lord, Lord Lester, in mentioning Patrick Vollmer and his marvellously helpful and carefully researched Library note, which is well up to the standard that we are lucky enough to have come to expect from that organisation.

It is said that soldiers can think only in threes. To prove that that is correct, I have three reasons for supporting the Bill. First, I support it because it is timely. Witness the fact that all the main political parties included reform of this law in their election manifestos. I am also persuaded by the many experts who regard it as an important first step in rebalancing the law of defamation in favour of greater freedom of expression. I note that Liberty believes that the balance is now tipped too far in favour of reputation at the expense of freedom of speech. I am always slightly nervous when I hear the word “rebalancing” in the context of law, because I thought that the law consisted of scales that are normally left level.

This follows several decades of campaigning by organisations such as Justice, boosted by the need to strike a balance between Article 8 on respect for private and family life and Article 10 on the right to freedom of expression in the European convention for the protection of human rights. Most recently, of course, there was the consultation exercise conducted by the previous Secretary of State for Justice shortly before the recent election.

I fully appreciate that whatever action the coalition Government propose might not include all the details and content of the Bill. However, the intention surely cannot be a million miles away. In the interests of time, if nothing else, might it not make sense for the Government to adopt the Bill and use the legislative process to include or exclude according to government policy, rather than waste time on duplication?

Secondly, the scrutiny demanded by the current position is necessary and appropriate. The libel lottery is said to be out of control. At one extreme, the forecast reduction in the provision of legal aid for libel means that the poor and the not so poor may be libelled with impunity with no means of remedy. At the other extreme, the level of libel damages and settlements made in anticipation of them in libel trials are an expensive game. Decisions on whether to take a case to court in the first place are conditioned by the level of libel damages, which remain extraordinarily high. The costs, which are said to be similarly excessive, are out of all proportion to the general complexity of the law.

Thirdly, I support the Bill because I hate the law being brought into disrepute. I know that it is but one small part of the whole, but, like many others, I welcome the fact that the Bill draws attention to the concern over “libel tourism”. I find the idea that foreign claimants seek to establish a UK readership or audience, however small, in order to make a defamation claim within the jurisdiction of the English courts, distasteful. All those who believe in freedom and equity under the law neither want nor welcome our alleged reputation as a Mecca for aggrieved people from around the world who want to sue for libel. I find nothing to feel proud about in unscrupulous and greedy people being able to use the threat of a libel action in English courts to stifle freedom of expression abroad.

Reflecting on this, I could not help thinking about how much our practice of any restriction on the media has been altered by the development of satellite communications and the internet. I was reminded of the problems that we had when I was the director of public relations for the Army during the Falklands War, when we realised that all the directions of the D Notice Committee were meaningless if foreign correspondents could transmit their copy via satellite straight from the battlefield. I therefore find it at best strange, and possibly ridiculous, that the current law should be determined by a ruling from 1849 in the case, to which my noble friend Lord Pannick referred, of the Duke of Brunswick, before telephone—let alone wireless satellite—communications had been introduced.

Conscious of what my noble and learned friend Lord Hoffmann ruled—that the defence of public interest should be available to anyone who publishes material of public interest in any medium—and of the many details which may still have to be ironed out, I welcome the Bill of the noble Lord, Lord Lester, as a most important first step along the road to rectifying a law that has long been in need of revision.