Defamation Bill [HL]

Lord Willis of Knaresborough Excerpts

Friday 9th July 2010 Lords Chamber

[Lord Willis of Knaresborough]

My Lords, it is with a sense of pride and a little humility that I rise to speak in your Lordships' House for the first time. I must confess to a little trepidation at having to follow the noble Lord, Lord Pannick. I hope that it will not be necessary, but if it is, I hope that he will defend me on some future occasion.

To be able to contribute to this Second Reading debate on the Defamation Bill, which was introduced so expertly by my noble friend Lord Lester, is a huge privilege, although when he invited me to speak, I little thought that the cast he would assemble would read like a Who’s Who of legal nobility.

I have no noble pedigree to bring to the House, although I follow in the steps of the first Baron Knaresborough, Sir Henry Meysey Meysey-Thompson, who was also a Liberal MP for the town. However, having opposed Gladstone’s Home Rule Bill and joined the breakaway Liberal Unionist Party to form an alliance with the Conservative Party, he lost his seat. Indeed, Knaresborough has a tradition of being associated with some rather awkward politicians. The early Lords of Knaresborough include Hugh de Morville who, having been granted the Honour of Knaresborough in 1158, went on to plot the murder of Archbishop Thomas Becket before fleeing back to Knaresborough for safety. I notice that there are no Bishops on their Benches today. It was not surprising therefore that King John, who loved hunting in the forest of Knaresborough, took the title Honour of Knaresborough for himself in 1210, some five years before he signed the Magna Carta.

Walking through the Lobby yesterday, I noticed a copy of Magna Carta on the wall. It reminded me of the 34 years I spent teaching and my first post teaching history at Middleton County Secondary Boys’ School in Leeds. The head teacher, who was more renowned for his discipline than his educational philosophy, insisted that the boys must learn the lessons of Magna Carta to remind them of the freedoms and rights we have won to secure their future. Today’s debate is a timely reminder of that duty and why the Defamation Bill is of such profound importance.

Clause 29 of Magna Carta states:

“We will sell to no man, we will not deny or defer to any man either Justice or Right”.

Yet so abused have our libel laws become that justice and right are constantly being denied to a wide spectrum of individuals and organisations who wish to question the truth, interpret the facts or comment on what they believe to be right. What is more, the ideal that,

“We will sell to no man … either Justice or Right”,

has become a cruel parody where the UK has not only become the world capital for “libel tourism”, with other Governments like the United States passing laws to limit damage to their citizens, but our citizens are increasingly being silenced by the cost of defending even the most valid of expressed opinion, with only the bravest of defendants risking their livelihoods to fight for justice and right.

It is noteworthy and laudable that much of the recent push for libel law reform has come not just from writers, media editors and lawyers. Ben Goldacre, Simon Singh, Peter Wilmshurst and Henrik Thomsen are clinicians and scientists, and it is the medical and scientific world that has recognised that there is no greater public interest in free expression than the ability, in good faith, robustly to criticise medical claims whether they be from homeopaths or big pharmaceutical companies.

This Bill, as my noble friend has said, is largely a consolidation effort. It attempts to clarify and bring up to date what my noble friend’s explanatory notes describe as,

“a history of piecemeal and incomplete reform ... over the course of seventy years”.

As such, it deserves the support of this House.

Indeed all three major political parties at the recent general election backed the Libel Reform Campaign led so ably by Dr Evan Harris and by Sense about Science, an organisation founded by my noble friend Lord Taverne and run by the resourceful and energetic Tracey Brown. All concerned welcomed the coalition Government’s announcement in the Queen’s Speech for,

“Legislation ... to restore freedoms and civil liberties”.

This Bill is the first test of that commitment.

However, without wishing to be contentious, I hope that my noble friend would agree that the Bill is capable of improvement as it goes through this House, and I should like to suggest a couple of areas. The appalling abuse of our libel law by NMT Medical Incorporated in the United States to silence the legitimate criticism of Dr Wilmshurst over its STARFlex device for closing holes in the heart is a clear example of why more needs to be done to prevent the so-called “chilling effect” of our own laws. Nor is Peter Wilmshurst’s case unique. Some 10 per cent of all libel actions in the UK over past six years have involved scientists or academics. The costs of defending and especially of losing an action can be devastating. So I ask my noble friend: should companies and associations even be able to sue for libel? They cannot do so in other jurisdictions. Surely they should rely on malicious falsehood only?

Finally, there is growing evidence that scientists are finding difficulty having articles which have been subjected to assiduous peer review published in serious journals. Fiona Godlee, the current editor of the British Medical Journal, has made the point that she is frequently in receipt of letters from lawyers for pharmaceutical companies threatening legal action if criticism of a treatment or a trial is not toned down. A journal cannot risk its viability on a lengthy trial against a complainant with deep pockets, and so the article must be altered or rejected. So we have more chilling of scientific debate. Yet we do not know how many drug scandals are out there, such as the suppression of research data by Merck on the anti-inflammatory drug Vioxx.

What we do know is that we can better protect public interest if properly peer reviewed academic and scientific work was considered to be qualified privilege and thus intimidatory actions could be struck out at an early stage. I appreciate that a journal could rely on the statutory defence set out in Clause 1, that it had acted responsibly, but a defendant would still have to prove that in court, with all the financial risks involved in taking a case to a final hearing where that question is determined. Being able to rely on an a priori defence of qualified privilege would short-circuit the process, as well as having the huge benefit of incentivising journals to use the highest possible quality peer review, and making it clear to writers that only by choosing peer reviewed publications would they gain protection as well as credence for their work.

In ending, may I say how grateful I and indeed my family have been for the courtesy and kindness extended to me during my induction and introduction to the House, and I thank in particular the staff for their patience and support. I thank also your Lordships for your patience during this, my first humble contribution to your proceedings. I trust that the Government will heed the wise advice of my noble friend Lord Lester and make this Bill part of a process to renew our defamation law.