Lord Lester: 'The law is the enemy of free speech'
After a lifetime dedicated to making the world a fairer place, Lord Lester is now tackling Britain's 'chilling' libel laws. He tells Ian Burrell about the battle he faces
Thursday 26 August 2010
This is not a Bill for the media, I want to emphasise that," says the veteran human rights campaigner Lord Lester of Herne Hill QC, of his plans to overhaul Britain's laws of libel. "It's a Bill for those who are consumers of the media: the citizens, the people."
After a lifetime dedicated to making the world a fairer place for those discriminated against on grounds of race, gender and sexuality, it rather gets under his skin that some have accused him of drafting "Murdoch's Bill" under the veil of championing freedom of speech. "I hear mutterings of 'We don't want the bloody press to have their Bill'," he says, speaking on a misty summer morning at his holiday home in West Cork.
"I don't have an axe to grind. I'm not there to represent claimants, I'm not there to represent the media, I'm not there to represent defendants. My role is to try to act as a sensible lawmaker."
Lord Lester, 74, has an extraordinary track record. He was a prime mover behind the Human Rights Act, the Equality Act, the Civil Partnership Act, and the Forced Marriage (Civil Protection) Act, which were preceded by Bills which he introduced into Parliament. He is convinced that his Defamation Bill represents an "historic" opportunity. Never before, he says, have the three main political parties been committed to using Parliament to reform law which, since the days of the Star Chamber, has been "fashioned by our courts".
His passionate defence of the right to freedom of speech is based on a legal career that has seen him working on some of the most contentious cases of modern times. He fought against a ruling by the Law Lords in the 1970s banning The Sunday Times from imputing negligence to the makers and distributors of Thalidomide, a drug which caused birth defects.
And he successfully contested attempts by the government in 1987 to ban publication in the press of extracts from Spycatcher, the autobiography of former MI5 assistant director Peter Wright. Since then, he argues, the press has become increasingly inhibited by the "chilling effect" of the growing cost of defending actions of defamation, many of which are brought by claimants under "no win, no fee" agreements with libel lawyers.
Groups such as Index on Censorship, English PEN and Sense About Science have argued that the law also inhibits academic papers by exposing authors to crippling actions.
High-profile recent cases include that of the Shropshire cardiologist Peter Wilmshurt, who was sued by an American company after comments he made at a conference were reported on a website. The science writer Simon Singh was sued for defamation by the British Chiropractic Association after writing an article which questioned the evidence on which it based treatment of asthma.
"Evidence clearly shows that the present law of libel has a serious chilling effect on freedom of speech, not only of the press but of any citizen critic, including non-governmental organisations," says Lord Lester. "You need a law which is the friend of free speech and not the enemy of free speech. The present law I think is the enemy of free speech in some respects."
He cites as an example the case of Caroline Workman, a food critic for the Irish News in Belfast, who gave up her career after a court awarded £25,000 damages and £100,000 costs to an Italian restaurant she had reviewed.
"She was put in the witness box for four days and really put through the wringer," says Lord Lester of Workman, a respected food writer who had trained in London restaurants. Although the ruling was overturned on appeal, "the damage done to her was catastrophic".
Further confusion has been created by the shortcomings of the so-called "Reynolds defence", which media organisations had hoped would give protection for criticism that had been honestly made in the public interest but couldn't be proved. One of the first uses of the Reynolds defence was recently overturned in the Court of Appeal. Lord Lester faces opposition to his reform proposals from an alliance of lawyers and academics who think the current legislation is just fine, and fear the consequences of allowing the media to operate in an environment where it is less exposed to severe financial penalties. "Claimants' lawyers earn a lot of money from the present system – they will be strongly resistant to any change," says Lord Lester.
And some of my fellow barristers will believe that [the courts] should deal with the problem and it's not the business of Parliament. I hope and believe that that narrow-minded approach, which is self-interested, will not prevail."
Those opponents have their supporters in the House of Lords. During a second reading of Lord Lester's Bill last month, Lord Triesman – recently the subject of a kiss-and-tell sting by the Mail on Sunday which cost him his job as chairman of the Football Association – made a passionate speech highlighting his concerns at what was being proposed. "I ask, who is speaking up for the claimants... and for the broad concerns in society for the legitimate defence of reputation and individual privacy?" Lord Triesman said, adding that he had observed the effects of the abuse of press power. "I have seen some newspapers, journalists and proprietors – although by no means all of them – savage people who did not deserve it and who had no equal chance of fighting their corner."
Lord Lester's work was the result of eight months of preparation with Sir Brian Neill, the retired Court of Appeal judge, and Heather Rogers QC. They became convinced that the presumption that a libel trial should be heard by a jury was a significant factor in the "chilling effect" of defamation actions, by drawing out the legal process and driving up costs. "I became convinced that it's not great to rely upon jury trials as the main protector of free speech. In the 19th century they were regarded as the great protector. Now if you talk to any newspaper lawyer they will tell you that one of the barriers to settling cases is the right to trial by jury, because the claimant lawyers will not settle cases quickly." On this matter too, he is opposed by Lord Triesman, who said: "This is an area where the common sense of our fellow citizens will be a clear asset."
Nonetheless, Lord Lester is convinced there will not be "significant root-and-branch opposition" to reform of the existing legislation, because of the cross-party support for change. He has agreed to leave his Bill pending while the Ministry of Justice uses it as a basis for its own version, which is likely to have a much greater chance of becoming law. "This is far too important to be rushed," the peer says. So a team of civil servants from the ministry is due to report next month to Lord McNally, the Minister of State for Justice, with a view to publishing a new draft Bill early next year.
Lord Lester hopes that a joint committee of both Houses of Parliament will then be given the opportunity to take further evidence, and that legislation might be in place in 2012. The Civil Partnership Act 2004 was built in a similar way on a Lord Lester Bill. "I will not take my Defamation Bill further now, because I trust the Government to build on it and produce a Bill which is a better version. I have great confidence in Lord McNally and his team."
He concurs with those who believe libel reform can only be effective if the press improves its record of self-regulation. "The Press Complaints Commission has got to be strengthened in its role, because one of the things I'm seeking to do is cut down the unnecessary use of English courts. The PCC needs to have more independence and stronger powers to give effective remedies."
Lord Lester's belief in the importance of freedom of speech stems from his time as a student at Harvard Law School, where he built relationships with American civil rights campaigners, later writing a book on discrimination in the Deep South. His study of American constitutional law taught him both "the benefits and the burdens" of the first amendment, which protects freedom of speech in the press and elsewhere.
He may not be doing this for the media, but he is clearly less hostile to the Fourth Estate than many of his fellow parliamentarians. "I believe the press is the eyes and ears of the public and is a profession, not only a business," he says. "But if the press wants to have the defences in my Bill it needs to act professionally."
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