Lord Lester of Herne Hill: Two cheers for free speech

Tonight Lord Lester of Herne Hill attended an event in London marking the Defamation Act and the next steps for libel reform. Here is his speech in full on why it was necessary – and what’s still to be done

Lord Lester of Herne Hill
Lord Lester of Herne Hill

Apart from the libel bar, most people agree that English defamation law was in pressing need of reform to strike a fair balance between the right to freedom of expression and the right to protect a good reputation. Libel law – criminal and civil – was created by the medieval ecclesiastical courts, the Court of Star Chamber and the common law courts. Parliament left it largely to the judges. In the whole of the 20th century, Parliament intervened only twice, in 1952 and 1996, with only minimal reforms that did not tackle the problems deeply or systematically.

Rich men and powerful business interests used the system to chill free speech and cover up misdeeds. London became the libel capital of the world, and our courts were used by foreign claimants complaining about publications with only a remote connection with this country. The use of conditional fee agreements created a new industry in which the rich and their lawyers became even richer at the expense of the press and the public’s right to know. The courts did their best to modernise the system but they are not competent to act as lawmakers. That is the job of government and parliament. The common law system was unable to grapple with the implications of the internet or to reform archaic and expensive procedures and punitive costs rules. So great was the chilling effect on free speech that President Obama approved legislation preventing English libel judgments from being enforced in the land of the First Amendment.

I became convinced by the Libel Reform Campaign and by my professional experience that the time was ripe – over-ripe – for reform. I designed a Bill to be introduced immediately after the General Election. I was hugely helped by two renowned legal experts, Sir Brian Neill and Heather Rogers QC, and a gifted freelance parliamentary counsel, Stephanie Grundy. I was also hugely helped by an advisory group that included English PEN, Index on Censorship, Sense about Science, and the in-house lawyers for The Times, The Guardian and the BBC. Joanna Dawson, parliamentary legal officer in my political office, has worked with me on the project throughout and should be given a large part of the credit for our success.

The centrepiece is the new public interest defence, but the reform of the other defences and the prevention of trivial cases and libel tourism are also important. I hope the legal profession and the courts will interpret the new law in a way that promotes its important purposes.

There is still much to be achieved. We await the crucially important new procedural and costs rules that are being fashioned by the judiciary under the leadership of the Master of the Rolls, Lord Dyson. They are crucial if the Act is to result in a level playing field between the weak and the powerful, the reduction of costs and unnecessary litigation, active case management and alternative dispute resolution, the use of county courts as well as the High Court, and so on. We also await the draft regulations governing publication via the internet.

Lord McNally decided at an early stage that when Sir Brian Leveson’s report was published it should not be allowed, like a tsunami, to overwhelm and drown libel reform. He almost failed. The Bill was taken hostage by well-meaning parliamentary colleagues, influenced by the well-heeled and powerful Hacked Off Campaign. They amended the Bill with amendments that were punitive and unfair and incompatible with the right to free expression protected by the Human Rights Act and the Convention. The Prime Minister was not bluffing when he refused to send the Bill to the Commons unless those amendments were removed. They were indeed removed following a series of amendments to two other Bills, cobbled together by politicians from the three parties and Hacked Off.

I believe in an effective system of self-regulation of the press, by an independent body able and willing to give effective remedies and to enforce professional standards by editors and journalists. But the new statutory scheme is an example of legislative overkill: using a steamroller to crack a nut. The use of exemplary damages to punish publishers who do not join the scheme or abide by its rulings is unprecedented in the free world, and sets a terrible example. The scheme is one-sided and unbalanced. It would be unacceptable in regulating the legal and medical professions, and it is unacceptable in regulating the profession of journalism that is already subject to many criminal and civil laws and sanctions.  If they are guilty of the gross abuses identified by Leveson, there are plenty of laws to punish them and ensure their victims have effective remedies. I doubt whether the Hacked Off scheme will pass muster under the Human Rights Act and the Convention.

Another pressing problem is the refusal by the Northern Ireland Government to apply the reforms there. If that refusal continues it will scupper the reforms because it will mean that publishers – NGOs, citizen critics, the media – will all risk having to defend themselves under the old common law system in Northern Ireland even though the Defamation Act was passed to bring our legal system into line with the Convention. I understand that a prominent libel practitioner, Mr Paul Tweed, has been advertising for clients and is hoping to make Belfast the libel capital.

I very much hope that the Government and Assembly will soon agree to give effect to these much needed reforms. That will avoid the need for the Secretary of State to use her powers under the Northern Ireland Act 1998 to require this to be done to secure conformity with Article 10 of the Convention.

I hope and believe that we have achieved balanced reforms that may become models across the common law world. That is why this event is a well-deserved celebration in which I am privileged to take part.

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