Defamation Bill [HL]

My Lords, the noble Lord, Lord Campbell of Alloway, once rebuked me for making a serious speech after the dinner hour and I am very aware that I am about to make a short speech after the lunch hour. Let me make a few points very quickly. On the subject of compliments and flattery—this House is an admirable example—I say, with the noble Lord, Lord Bew, in mind, that there were two 19th-century historians, Freeman and Stubbs. A wit wrote of their reviews of each other’s work: ""Ladling butter from alternate tubs, Stubbs butters Freeman and Freeman butters Stubbs"." Having said that, I should say that the two maiden speakers deserve all the compliments that have been paid to them. On the subject of my becoming the Earl of Leicester, I should add not only that there is already a noble Earl, which is why my name is Lord Lester of Herne Hill, so that people who cannot differentiate spellings can understand, but also that I am reminded of Sir Stephen Sedley, who, when faced with a pompous colleague of mine who had made himself honorary life president of a lawyers’ body, said: "Why only life?". I pay tribute to the noble Lord, Lord Bach, to Jack Straw and to the former Government, who initiated serious reforms in this area. I was glad to hear what the noble Lord said today. I agree with him very much on the need for urgency on costs; we should not wait for wholesale reform. I say to the noble Baroness, Lady Hayter, that I thought that I was chairman of the Fabian Society and not its treasurer. I should like that to be looked at. Let me quickly deal with a few points. I thought that we had covered Mumsnet but, if we have not, plainly it should be regarded as a mere facilitator and therefore not liable. The speech made by the noble Baroness, Lady Hayter, as a consumer champion was extremely important. I agree with what was said about self-regulation and the role of the PCC. I also agree with the scepticism of the noble Lord, Lord McNally, about where we are with the PCC. I hope that it can be strengthened. I agree with the noble and learned Lord, Lord Hoffmann, that the problem of libel tourism has been greatly exaggerated. The real problem is not so much libel tourism as our domestic libel law. He may not know this, but we dealt with a form of libel tourism when the noble and learned Lord, Lord Mackay, was Lord Chancellor. We were worried about Singapore bringing its libel law into this country. When we harmonised tort law, we retained the double actionability rule for defamation cases, so that a foreign claimant could bring a libel claim in this country only if they could show that the case was actionable under English law and not merely under Singaporean law. That was one way in which we dealt with that form of libel tourism. The noble Lord, Lord Willis of Knaresborough, in his most memorable speech, made an important point. He asked why we had not confined companies to malicious falsehood. That is an interesting idea. In a case that I did, the Derbyshire case, the House of Lords decided that public authorities—Governments—could not use the law of libel but had to proceed under the tort of malicious falsehood, which makes me wonder whether we have got that right in the Bill. Perhaps the right thing to do would be to extend the notion of public authority to certain classes of corporation and treat them in the same way. However, that is a difficult area and I am sure that we should all like to think about it more. Of course, ADR and mediation are vital. However, we have not dealt with that area in the Bill because a distinguished former libel judge, Sir Charles Gray, is chairing a working party on that subject, although I do not think that it has yet produced its report. When it does, we very much hope that that will happen, so legislation is not needed. My noble friend Lady Bonham-Carter, speaking with a marvellously husky voice and sacrificing her health, mentioned a number of matters. I was reminded that Quilliam, a body dealing with extremist activity, especially among Islamic fundamentalists, told me that when it made criticism of the Islam Channel, it was threatened in a very coercive way with libel proceedings—that is, Islam Channel, the broadcaster, was threatening action against Quilliam as a small NGO. When journalists writing for the LSE’s Beaver magazine criticised a lecturer for allegedly spreading fundamentalist views, the threat was made that, unless they disowned Quilliam and what had been said, it would be all the worse for them. Those are examples of, as it were, the other side of the equation. I want to mention two examples from my practical experience of my attempts, in the words of the noble and learned Lord, Lord Woolf, to persuade the courts to reform the law. I suspect that the first will amuse the noble and learned Lord, Lord Hoffmann. When I was arguing the Reynolds case, the noble and learned Lord, Lord Steyn, looked at me and said, "What about German ad hoc balancing law?". I asked, "What about it?". He said, "Do you know about it?". I said that I did not, to which he replied, "Well, you had better know by tomorrow morning". I knew then that I had lost. He was referring to a notion in German constitutional law about which his co-pupil, Basil Markesinis, had published a book dealing with what is known as ad hoc balancing. The trouble with Reynolds was that it applied German constitutional law—ad hoc balancing—to English libel law. The result was to create great uncertainty, which the noble and learned Lord, Lord Hoffmann, and others sought to address in the Jameel case. However, the continental and German approach triumphed over a more common law approach. The other example was brought to mind by what the noble Lord, Lord Bew, said regarding Northern Ireland. I was in a case called Convery v Irish News, in which a food critic, Caroline Workman, was cross-examined for more than three days as to whether the vegetables in the restaurant about which she had written a disrespectful review were or were not as she said they were. The judge, jury and counsel all misunderstood the true nature of the defence of fair comment and treated it as though it were the defence of truth. She was cross-examined for four days. The newspaper was made to pay, I think, £25,000 in damages and £100,000 in legal costs but it won on the appeal, in which I appeared. Caroline Workman was so distressed by her experience as a victim of libel law that she gave up her profession of journalism altogether. That is the other side of the coin compared with the description given by the noble Lord, Lord Triesman, of claimant victims who are not treated justly. I am grateful to the noble Lord, Lord Triesman, for his criticism of the Bill; one needs to hear that. However, if he is so concerned about claimants, I wonder why he does not deal with poor claimants. They are not the ones who go to court, and there is no legal aid for poor claimants. The problem with the conditional fee agreement and the 100 per cent success fee is that they are not normally for poor claimants, but for very rich ones. If we ask the claimants’ lawyers for particulars on their success rate, we find that the CFA people are on the side of rich claimants, and that is where the law is profoundly unequal. I am not concerned with producing a Bill for the entertainment industry or the media; I am concerned with producing a Bill that protects the ordinary, individual citizen/critic, the small NGO, the regional newspaper, those from the arts and sciences, and so on. I am very glad that the noble Baroness, Lady Young of Hornsey, agreed to take part in this debate, and I am glad that others who are not lawyers took part. This is too important a subject to be left even to the legal profession. The noble Lord, Lord Pannick, asked why Clause 12(2) is necessary. I think that he is right that it is not necessary, but we put it in to show how conspicuously moderate we are. We may have been too moderate in that respect. Finally, I must say that when I hear my noble friend Lord McNally speak as he did just now, I wonder whether I am alive at all or whether I am in heaven. I never thought to hear such a reply. His remarks are extremely encouraging because they indicate an open-mindedness to reform, a willingness to get on and to listen. I am sure that it is better for the Government to have a draft Bill and a Joint Committee of both Houses to look at it; and then, hoping that we are in good health, we could have an actual Bill, which I hope will start in this House rather than in the other place. This House, as we know, has very special qualities. On that basis, I ask the House to give the Bill a Second Reading. Bill read a second time.