English Libel Law (Parliamentary Proceedings) — [Mr. Roger Gale in the Chair]

Part of the debate – in Westminster Hall at 2:30 pm on 21st October 2009.

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Photo of Evan Harris Evan Harris Shadow Science Minister 2:30 pm, 21st October 2009

First, I should point out that The Guardian contests whether, or the extent to which, they accepted the order made on 11 and 18 September. Secondly, we are not talking about the ability of a Member of Parliament to overturn a court order. We have sub judice rules that apply. The hon. Member for Newcastle-under-Lyme was able to table his questions within those rules, presumably because they were nowhere near breaching the rules or because of the particular skills that he exercised. That is not the same as stating that the intention, or the intended effect, was to overturn the order, which was at least in part about the publication of the contents of the Minton report. I understand that the legal case to which the Minton report was said to be legally privileged was settled in September, before the hon. Member for Newcastle-under-Lyme tabled his questions. That should be the end of that particular matter.

The key thing is whether we are to have clarity on the point. I ask the Minister whether, in the interim, all court orders that injunct against publication or the passing on of information should make it clear, in what I might call a template, that they do not affect the fair and truthful reporting of Parliament, so that there can be no doubt and no costs incurred in clarifying the matter, and no chilling effect caused by assertions to the contrary. That would be useful.

It is important to deal with the question of super-injunctions. Some people would argue that it is wrong that any injunction should be kept secret, saying that the gagging should itself be made public even if the content of what is to be gagged is not, as it is in the public interest. I do not take that view. I am not an expert, but it does not seem wise to say that the point of an injunction-for example, for privacy of confidential medical information on an individual-could be frustrated by the reporting of the fact that an injunction exists.

It does not necessarily follow that every injunction founded on personal privacy or confidence should be the subject of a super-injunction. Indeed, I know of examples of private individuals having an injunction to prevent the reporting of something. However, as the Lord Chief Justice made clear yesterday in a good example relating to the seizure of assets in a fraud case, there will be cases in which the public interest is clearly served by an injunction restraining publication of its existence. Indeed, there may be cases in which it is arguable, when there is no clear public interest, that the overall balance of private interests is clear. Nevertheless, it seems to me that some cases are currently subject to super-injunctions, particularly in respect of libel, where they are inappropriate; and they may be being granted inappropriately because there is no clear public interest argument for those who wish to be free to publish the existence of the injunction.

The default must be that the public should know about such prior restraint when it is deemed to be appropriate. I would be grateful if the Government clarified their view. Do they believe that the position on super-injunctions is fine and dandy, or do they accept at least that there is a case for the matter to be considered? I believe that senior judges would argue that it is difficult. One has to sympathise with their position, as in the middle of the night-or at least outside the working day-they are sometimes asked to make quick decisions, and default on the side of confidentiality. Such injunctions are extremely restraining of free speech, and there is a concern.

I also ask the Minister whether she accepts that there is a difference with gagging generally but especially libel, between an individual seeking to assert a right-for example, to privacy under the Human Rights Act 1998 or the European convention on human rights-and a corporation doing so. There may well be a public interest in seeking to restrict the reporting in a way that public authorities cannot, but private corporations can. It seems to me that the balance there is wrong.

The other point that I wish to raise is a general concern about the impact of English libel law. It is noteworthy that the Lord Chief Justice said yesterday-I do not quote him directly-that if London is the libel capital of the world, something should be done about it. I hope that I do not misquote him; I do not have his words directly to hand. There is widespread concern. Mr. MacShane secured a debate on that subject a few months ago. Serious concerns were raised then, but in a number of cases since, there has been no reassurance that that is not the case.

Some matters are sub judice-I will be very careful about what I say here-but there is widespread concern about the ability to discuss scientific matters and the nature of the evidence base from, on the one hand, doctors and writers who are interested in the subject and, on the other, those who are promulgating treatments, whether conventional or alternative, and who have an interest in seeking to make claims that could be challenged by scientists. There is widespread concern that such actions are restrained by the reach of the English libel laws. There is a lack of a public interest defence-the burden of proof is placed on the defendant, not on the plaintiff-and there are issues of cost, which the Government would say that they are seeking to deal with. I should be grateful if the Minister accepted that there is a case to be made-and I hope that the Select Committee is investigating this-to show that our libel laws are wrong.

Dr. Ehrenfeld, who is American, was sued in this country by someone from another country for the publication of a book that was mainly published outside this country and sold very few copies. For London to be used in that way cannot be the way forward. There are other examples as well, and there is widespread concern in the writing community. English PEN, Index on Censorship and Article 19 are all concerned about such matters.

I urge the Minister in her response to give us some reassurance that the Government are alive to those concerns, and that they recognise that the case law that has built up in this area may not be appropriate for the sort of freedom of speech that we want to see. There is an argument, and clearly there are grounds, for some protection of reputation, confidence and privacy, but it is time that Parliament had a chance to have a say in such matters, particularly at a time when the reporting of parliamentary coverage of those things has been under threat. It is a curious and unsatisfactory situation, in which Parliament appears to be caught in the crossfire, without ever having a proper chance to debate such matters.

My final question relates to the ongoing problems of English libel law in respect of Trafigura. My understanding is that "Newsnight" is being threatened by the lawyers for Trafigura, Carter-Ruck, if it repeats an allegation against Carter-Ruck that deaths were caused by the dumping of toxic waste in Ivory Coast, even though in 2007 Hansard reported the Transfrontier Shipment of Waste Regulations laid by the Department for Environment, Food and Rural Affairs before Parliament, and a memorandum of explanation to those regulations stated:

"The recent example of the release of toxic waste in the Ivory Coast leading to the deaths of a number of people and the hospitalisation of thousands underlines the risks involved in the movement and management of waste."

How can it be that that can be in Hansard,yet there are still threats of legal action against "Newsnight" if it reports the very same wording that is used in there? That cannot be right. Although there are powerful interests at stake, there is a public interest in the fact that there was a settlement made-hundreds of millions of pounds paid over in that settlement-and yet the public in this country are not allowed to know some of the contents of those news reports. We have a responsible media by and large in respect of such matters, and it is about time that English libel laws and English laws in general caught up with that fact.