Libel (Hansard, 22 October 2001)

§ The Parliamentary Secretary, Lord Chancellor's Department (Baroness Scotland of Asthal)
My Lords, the noble Lord's Question seems to be based on a misconception—there is no single "burden of proof" in a libel case. Generally in English law, the party who asserts a fact—either in his claim or in his defence—has to demonstrate the truth of what he says. The other party does not have to prove that it is false.
Our law strikes a fair balance between the interests of the claimant and those of the defendant, and the allocation of the burden of proof is part of that.

§ Lord Beaumont of Whitley
My Lords, why is it then that the American courts refuse to enforce English libel awards? Is it not true that that is because of the present state of affairs—that the misdeeds of Robert Maxwell and Jeffrey Archer, to name but two, were not exposed before they were?

§ Baroness Scotland of Asthal
My Lords, of course the American position is different from ours. Perhaps I should amplify my Answer. I assure noble Lords that this country's law is in robust good order. I appreciate the strength of the noble Lord's concern.
As I said earlier, in any civil action the primary burden of proof rests on the claimant to make out his case. If he fails to do that, the defendant is not required to prove anything. In a defamation case, therefore, the 809 primary burden of proof rests on the claimant. He must prove four things: that there was a defamatory statement; that it referred to him; that it was published; and that the defendant was responsible. Only then does the defendant have to prove any element of his defence. It is of course true that if the defendant pleads justification—that is, truth—as his defence, he must prove the truth of what is said. That is simply an application of the rule that I outlined in my Answer.
I should also make it clear that, first, the defendant does not need to prove the truth of every detail and every nuance of what he has said. It is sufficient that what he said was substantially true. Secondly, he does not need to prove conclusively and beyond all reasonable doubt that what he said was true; he needs to prove it only on the balance of probabilities. Similarly, the defendant may plead the defence of fair comment.
Much has happened to extend the position through the Defamation Act 1996. I assure noble Lords that the balance between defendant and claimant is well understood and maintained in all of the courts in England and Wales.

§ Lord Archer of Sandwell
My Lords, while anyone who makes a derogatory statement about another should be prepared to prove it—otherwise the victim would be in the position of having to prove a negative—does my noble friend agree that the Human Rights Act may impinge on certain aspects of our libel law; for example, the right of free expression? Have the Government considered the implications?

§ Baroness Scotland of Asthal
My Lords, the Government have considered the implications of the Human Rights Act. The relevant articles are Article 6, the right to a fair trial, and Article 10, the right to freedom of expression. It is for the courts to apply and to develop the law of libel in a manner consistent with the convention rights. The courts are also under a duty to act compatibly with those rights as public authorities under the Human Rights Act 1998, which was introduced by this Government. Additionally, under Section 12 of the Act, they are under a duty to have particular regard to the importance of the convention right of freedom of expression when considering whether to grant any relief that would affect the exercise of that right.

§ Lord McNally
My Lords, does the Minister agree that our libel laws are still too prone to what may be called speculative litigation? Should not part of a defence be that a statement was made in reasonable good faith with a proper attempt to try to check the facts? Surely we should remove from our system such a tendency to litigation. Does the Minister agree that that could best be accomplished by a proper Press Complaints Commission that had teeth and was respected?

§ Baroness Scotland of Asthal
My Lords, I hear what the noble Lord says in relation to the Press Complaints Commission's procedure. That matter has been debated long and hard and no doubt will continue to be debated. We must see whether the present system, which in recent years has changed, has teeth. The law in relation to defamation is difficult. There is a balance between the claimant and the defendant and striking the right balance is always problematic. We believe that at the moment the balance is right but, as noble Lords know, this matter will continue to be scrutinised from time to time.

§ Lord Lipsey
My Lords, does my noble friend agree that the real problem with our current libel laws and the absence of legal aid is that they prevent newspapers from telling the truth about the rich, while enabling them to tell whatever lies they like about the poor with total impunity?

§ Baroness Scotland of Asthal
My Lords, attractive as it may be to agree with the noble Lord, I cannot, not least because that is not true. Of course, legal aid has not been extended to defamation and it never has since its inception in 1949. However, conditional fee agreements are now available and have been used successfully. The Government have also taken steps to enable successful litigants to reclaim the cost of any insurance premiums from their opponent, which should scotch the widely-held perception that defamation laws benefit only the rich and powerful. If noble Lords cast their eyes over recent decisions in which applicants have been successful, they will see that a number used conditional fee agreements.

§ Lord Tebbit
My Lords, while I am aware that the Minster has no responsibility for American law, is she able to answer the query in the supplementary question asked by the noble Lord, Lord Beaumont of Whitley, as to why American courts will not enforce British judgment in this respect?

§ Baroness Scotland of Asthal
My Lords, I cannot give the noble Lord a specific answer. We are not able to dictate what the American courts should or should not enforce and, as a sovereign nation, they cannot dictate to us. I know that many noble Lords labour under the misapprehension that America and ourselves are the same; in fact, we are two sovereign states subject to our own rules.

§ Lord Tomlinson
My Lords, can my noble friend advise the House whether the Government have given any consideration to the role of juries in libel trials?

§ Baroness Scotland of Asthal
My Lords, we have considered the matter of juries, which I know concerns a number of noble Lords. In 1999 the Law Commission recommended that juries in libel trials retain both the task of determining liability and the task of setting damages. I can reassure your Lordships that Her Majesty's Government are not considering any change to that role.