Defamation Bill [HL]

Lord Thomas of Gresford Excerpts

Friday 9th July 2010 Lords Chamber

[Lord Thomas of Gresford]

My Lords, I also congratulate the noble Baroness, Lady Hayter, on her maiden speech and, as a Welshman, welcome her to this House. She reminded me of an occasion some years ago when I spoke at Peking University in Beijing about this House of Lords. I had some 200 students looking at me rather blankly, even when I said that this House was full only when we were discussing sex and fox hunting. That should give your Lordships an idea of how long ago that was. I wondered if there would be any questions. At the end, I was asked by a young lady, “To what extent do the provisions for pensions brought in by the Labour Government reflect the values of the Fabian Society?”. To be asked that question in Peking University in Beijing rather floored me, and I asked her to tell me the answer. I am quite sure that she knew what it was.

I welcome the Bill and the initiative of my noble friend Lord Lester in bringing it forward. The common law treated freedom of expression as a residual liberty, that is to say, a liberty which existed in the gaps between the criminal law of obscenity, libel or contempt of court. If historically there ever existed a recognised freedom, it was a freedom to express opinions or disclose information when the actual expression of those opinions was not forbidden by law. In 1885, Dicey, in his Introduction to the Study of the Law of the Constitution stated that,

“at no time has there in England been any proclamation of the right to liberty of thought or to freedom of speech”.

Legislation frequently fails to bring about the consequences it was intended to achieve. We thought that the Human Rights Act would have acted as a magic potion to resolve all the problems involving or relating to freedom of expression, yet here we are today. However, the Human Rights Act focused minds on the whole concept of freedom of expression, and in so doing altered perceptions. More people today are alive to their right to freedom of expression than at any time before. That is a spontaneous reaction which is to be applauded, but as soon as people became aware of another right, the right to privacy, the tension between that right and the right of freedom of expression inevitably followed. The clash of the tectonic plates, a phrase that my noble friend Lord Goodhart used, then emerged

The Human Rights Act places demands on our judges which they may not have entirely succeeded in meeting. The jurisprudence which has emerged reflects those tensions. There has been some inconsistency of approach and a certain muddle. It is that muddle which brought about the super-injunctions, that concept which figured in the Trafigura case, the injunction used to prevent the publication of a report on alleged dumping of toxic waste in the Ivory Coast. There was an attempt to invoke that ban on the subsequent reporting of parliamentary questions asked by Paul Farrelly MP relating to that report. Although that application was eventually withdrawn, the matter has not really been settled once and for all.

Perhaps once such a situation developed, the terms of the injunction should have been varied, but there ought never to have been any room for doubt whether parliamentary proceedings could be subjected to a super-injunction of that type. The Parliamentary Papers Act 1840, which was meant to provide such a degree of protection, was not strong enough to resolve the matter beyond dispute. A major advantage of my noble friend’s Bill is that it abolishes the 1840 Act, but Clause 7 places parliamentary proceedings on a distinct, protected statutory footing by affording them absolute privilege. It may not prevent an application for a super-injunction in future, but it will curb encroachments into areas that ought never to have been curtailed in that way. It is a very good example of what the Bill does to achieve simplicity.

As my noble friend Lord Lester said, the internet throws up new difficulties. Pressures on freedom of expression have grown with the internet and the dominance of the clickerati. As one commentator put it, internet users do far more than just download information. A single download may unwittingly create a legal quagmire that crosses continents and encourages challenges and hard-fought legal battles which threaten long-cherished principles. Freedom of expression touches everyone: lawyers, politicians, journalists, newspaper editors, internet providers and servers, celebrities, scientists, large corporations, small charities, NGOs, or even ordinary individuals. The example cited by the noble Baroness, Lady McIntosh, from Mumsnet, shows what a burden it is for an organisation such as that to have continually to edit its internet site. The whole area of the law is as complex as the issues or interests which it is required to address.

I commend my noble friend on having cut through the maze and on introducing a degree of clarity into the arena. He has done so at a price, knowing full well that he will not be able to satisfy everyone, as our debate today demonstrates. Nor can he address every issue in the Bill; he has had to leave out certain considerations and, in doing so, he has opened himself to criticism. However, he has put together a Bill, which, to use his words, could pass, could be effective and be brought into law. It is a reflection of judicial interpretive trends over the past decade and of his professional experience and knowledge of this area of the law. He has, modestly, invited help in fashioning this vital piece of legislation, and it will be up to the Members of this House to consider how wide-ranging the Bill should be in the absence of a complete overhaul of the law, but we would not be here if it were not for my noble friend zeroing in on the principles which, to cite him, seek to strike a fair balance between reputation and public information on matters of public interest.

It is a difficult balance to strike. Dr Dario Milo, an outstanding South African lawyer and academic, in his UCL thesis, The Constitutionalisation of the Law of Defamation, argued that constitutional rights must shape the contours of modern libel law: freedom of speech, rights to reputation and dignity and the protection afforded to the public interest. He pointed to the clash of constitutional rights in the decision of the Canadian Supreme Court in the Toronto Star case, where the court ruled that a new defamation defence was required as a result of the constitutional protection of freedom of expression, the defence, as the court put it, of reasonable, responsible communication on matters of public interest. That is the concept which my noble friend Lord Lester has adopted in Clause 1. What was fair comment is now termed by my noble friend in Clause 2 as “honest opinion”. That is an easily understood expression founded in the Dr Singh case, to which the noble Baroness, Lady McIntosh, referred. He was accused of libel by the British Chiropractic Association. The Court of Appeal stated in that case that judges would not rule on matters of scientific controversy, as it was not up to them to disentangle fact from opinion where scientific controversies were concerned. The court felt that the term “honest opinion” better reflected the realities of the issues.

In stating the key issues to be addressed by the Bill, my noble friend Lord Lester has rightly put the public interest at the forefront, and has attempted to resolve the issues relating to privilege, be it absolute or qualified, and to place responsible journalism on a clear footing, following the Reynolds guidelines and the Jameel case. I noted the criticisms of the noble and learned Lord, Lord Hoffmann, about the attempt to include in the Bill the principles stated in the Reynolds guidelines, but a number of judgments were given in that case, and my noble friend has attempted to put together a list of guidelines drawn from a number of judgments. Like the noble and learned Lord, Lord Hoffmann, I have some reservations about Clause 13. I acted for the leader of the Workers’ Party of Singapore, Mr Ben Jeyaretnam—Jeya—when we brought an action for libel in this country against the Straits Times, which had disparaged our success in Jeya’s earlier appeal to the Privy Council. That was a successful appeal which caused Singapore to abolish appeals to the Privy Council. The action was struck out on the basis that the Straits Times had little circulation in this country—about 1,000 copies were distributed—and that Jeya had no reputation here to speak of. That was the decision, which could not be appealed because of cost.

When Jeya died last year, the Guardian and the Times carried obituaries, which indicates the reputation he had in this country. I also represented him in Singapore in one of the libel cases which were brought against him by the then Prime Minister and others. We lost, surprisingly, but at least I did not suffer the fate of Mr George Carman QC who appeared in the next case brought against Jeya in a Singapore court: the damages were doubled because Jeya’s counsel pursued the slightly dangerous line that that Government used actions for libel as a means of ruining political opponents—it was absolutely true at the time.

Introducing this political element reminds me of the election we have just had. The success of the leader of our party in the prime ministerial debates led to the most incredible flood of abuse from some of the right-wing popular press. I had a letter published in the Guardian saying that it is an illegal practice under the Representation of the People Act to defame a candidate, even though my noble friend had successfully removed criminal libel from the statute book only months before, which might have been a better way to proceed.

Libel actions are all about cash. You have to be wealthy, destitute or mad to bring proceedings in this country. We acted for Jeya pro bono, which is the only way in which people can bring an action unless they fall into one of the categories to which I referred. There are, of course, many problems to be resolved: costs, damages, conditional fee agreements and success fees, which were referred to by the noble Baroness, Lady Kennedy. I am particularly concerned that the ordinary individual is inhibited and denied access to justice. His reputation may be badly damaged in his own area by a local newspaper or other media outlet, but there is no remedy for a person in such circumstances. I hope that these are matters that we will pursue at another time, but I urge noble Lords to support the Bill and to give it a fair reading.