I wish to make a few remarks which may embarrassingly reveal my lack of full acquaintance with the legal arcana in this case but at the same time remind us of at least one of the major reasons why we are having these discussions. I thank the noble Lord, Lord McNally, for doing a good job extremely conscientiously in complicated circumstances with a lot of opinions swirling round him.
I remind noble Lords yet again of what prompted this action in the first place: libel tourism to this country to shut up people who wish to point out instances of malpractice in pharmaceutical companies in a variety of contexts. I come mainly from the science base, where there are interminable examples, about which I could go on for hours. I will inflict one example on your Lordships and then I will speak more briefly. It is a typical example, which raises many of the issues that still concern me despite the good job that is being done. It comes from a chap called Peter Wilmshurst, who wrote to me in an e-mail:
"I am a consultant cardiologist in Shrewsbury. A US medical device corporation, NMT Medical, sued me for libel and slander three times in the High Court in England. I was the principal cardiologist in research, which was conducted on UK citizens and used a cardiac device made by NMT. At a medical conference in the USA, I expressed concern about the findings of the research and some of my comments were reported on a US cardiology website. As a result NMT sued me in England over the website article and a subsequent article. The journalist and the website were not sued. When I spoke about what happened on the Today programme on Radio 4 I was sued again, despite the interview being pre-recorded so that the BBC's lawyers could make sure that there was no risk of further litigation. NMT did not sue the BBC. Everything that I said was provably true, but that did not prevent NMT starting expensive claims with the expectation that the cost would stop me expressing concerns about the lack of safety and lack of efficacy of their device. I know that fear of being sued by NMT prevented other doctors expressing similar concerns. The libel cases lasted almost 4 years and my legal costs were £300,000"- which is actually low compared to some of the incidents in mind. The journal Nature, for example, spent £1.5 million successfully defending one of these libel cases.
Peter Wilmshurst continued:
"The cases ended when NMT went into liquidation as information about the problems with their devices filtered out and cardiologists stopped using them"- something I will come back to. He continued:
"During the years when NMT silenced doctors who had legitimate concerns, the ineffective and unsafe devices were implanted in patients in the UK and elsewhere. Some patients needed urgent cardiac surgery to have devices removed and some died. That was the true cost of the English defamation laws having no adequate public interest defence to prevent spurious claims by wealthy corporations. I believe that if Parliamentarians did not have absolute privilege when speaking in Parliament"- and that is a comfort I have here, having once been silenced in a cowardly way-
"and they had only the same protections as ordinary citizens, they would ensure that there was an adequate public interest defence and protection from corporations using the defamation laws to silence whistleblowers and prevent freedom of expression".
We did that way back.
I mention that example in particular because, as noble Lords will notice, the original action was effective. Ultimately, it caused this company to go bust. One of the amendments we are talking about asks for a way of preventing this sort of bludgeoning of people into silence by the power of the purse and the extraordinary extravagance of our legal procedures. It comes home to us very clearly that simply saying that a company must prove you are damaging them by what you are saying is not going to prevent many of these cases because the aim of what many people are saying when they provoke these actions is, indeed, to inflict damage. The aim is to point out bad and unsafe practice and unsound publications, and to damage the people responsible. I am not clear that simply saying that companies must show they are damaged would really cure the problem at all. I may be revealing my ignorance, but I wanted to say again that this is what provoked it. In what sometimes seemed to me interminable sessions in Grand Committee, in which I took a form of perverse enjoyment, the intense arcana of the legalisms occasionally seemed-to put it gently-to distract from the essence of the problem. My understanding, imperfect though it is, is that we are going a long way to addressing this problem but not all the way that, were I supreme dictator, we would go.