Sunday, 19 July 2009

Blaming the judges

In a rather misconceived article in the Observer, Nick Cohen highlights another alarming instance of how English libel law has a dangerously chilling effect on important matters of public debate. Mathematicians, including Herriott-Watt's Dr Tim Johnson, have been doing valuable work picking out the flaws in mathematical models created by financial wizards such as the Nobel-prizewinning David Li - models which helped major banks lose billions over the past couple of years. "They were pretending mathematics was magic" Johnson complains. But now, afraid of being sued by these same institutions, they're reluctant to point the finger of blame where it's due. Cohen writes:

Ministers, led by Lord Drayson, have been wooing Johnson and his colleagues of late and I can't say I am surprised. Tens of millions of people in the rich world and hundreds of millions in the poor are losing their livelihoods because bad maths allowed bankers to pretend to themselves that they were not being insanely reckless....The public pays the academics' salaries and academics can return the compliment by protecting the public.

"You have a f*cking duty to speak out," as one blunt politician explained the deal to them.

But they are not going to speak out for a reason readers of this column will guess: Johnson and his colleagues fear being hauled before the libel courts. Academics have noted the willingness of the judiciary to allow believers in "alternative" chiropractic therapy to sue science writer Simon Singh, and can imagine all too graphically what would happen to them. Chiropractors are small-time operators working from suburban offices, one said. Bankers have the most expensive lawyers in the City on call. If his colleagues were to hint that a bank was risking its investors' money, they would be hammered.

This is all too plausible, sadly. Invoking the law to stifle discussion of sensitive issues is profoundly dangerous. The use of libel in such areas has increased, is increasing, and ought to be diminished. Things have got seriously out of balance. The original point of libel law was to protect people from unwarranted slurs on their reputation, which can be just as damaging as physical injury. This was always open to abuse by the rich and powerful: in many cases, the mere threat of a libel writ has been enough to extract abject apologies from newspapers and broadcasters even for cases of quite justified criticism. Dodgy tycoons like Robert Maxwell have long deployed legal threats to avoid having to answer difficult questions, and it is hard to see how such actions have ever been in the public interest.

But the use of libel to protect companies from criticism from the media and from individuals (such as the McLibel Two) has greatly expanded the danger. And, as the Singh case (among others) has demonstrated, the law is now being deployed to protect some people's opinions from the normal processes of scientific scrutiny. Suing, or threatening to sue, has become too easy, because trials are ruinously expensive for all but the deepest pockets, and because the law is biased against defendants.

On the other hand, Cohen doesn't provide any evidence that these mathematicians have actually been threatened with libel actions. Perhaps they don't need to be: perhaps now fear of libel is exerting its chilling effect even where actual libel actions would be unlikely to succeed. The threat, even the imagined threat, of a libel action has become one more risk to be avoided in our risk-averse and litigation-drenched society. But whether the law itself is frightening them, or the publicity occasioned by the Singh case and other high-profile actions, is unclear: just because some researchers are terrified of libel lawyers doesn't mean they are right to be. Cohen really spoils his case, though, when he uses the story as opportunity to clamber aboard one of his other hobby-horses: the deficiency, muddle-headedness and general cowardliness of the British left. He writes:

In theory, liberals ought to believe in freedom of speech. In practice, Labour ministers have yet to meet campaigners for law reform and wider liberal society has yet to overcome a way of thinking that stops it reconnecting with the best parts of the liberal tradition.

The unwillingness of Labour ministers to act is indeed lamentable. The ways of thinking of "wider liberal society" - he's referring, I guess, to the multiculturalism industry with its automatic indulgence of victimhood - has nothing to do with it. It is wholly irrelevant. "Simon Singh and the mathematicians are now living with the consequences of the human rights movement", writes Cohen. Actually, they are living with the consequences of the much older libel law, which has thus far been largely dormant in matters scientific for no other reason that it never occurred to anyone that it could be used.

What has changed? Conditional fee agreements, and touting for business by lawyers, and a series of decisions by libel judges to accept jurisdiction even between foreign parties. Cohen, however, puts it down to "Margaret Thatcher's repeated election victories" which "convinced British liberals to try to win in the courts what they could not win at the ballot box." Bizarre. We're not talking about claimed human rights violations. The Human Rights Act has not affected the law of libel - though it has, of course, introduced new privacy rights, which many journalists regret. Indeed, the best hope for restraining the libel courts - assuming Parliament doesn't act, and so far there's sadly little evidence that it will - may lie in the right to free expression enshrined in the HRA.

Cohen then goes after the judges. He doesn't mention Eady by name, but it's clear who he has in mind when he says that

British judges, like judges across the EU, do not believe in freedom of speech. They are illiberal liberals who will defend all rights except the most fundamental right of a citizen of a free country to make his or her case without fear of the consequences.

He then launches into a series of blanket statements that read all too like the soundings-off of a pub bore:

The average British judge does not believe that free debate in the marketplace of the mind will expose "wrong opinions and practices". He believes they must be suppressed because he retains the fear of the old European aristocracy that the masses cannot see through dangerous ideas and bad arguments.

That's just hysterical garbage, isn't it? First he categorises judges as "illiberal liberals" wedded to fashionable human rights nostrums; then he portrays them as archaic defenders of vested class interest. He ends by accusing them, en masse, of "an elite suspicion of democracy". This may or may not be true; but it's irrelevant. What judges are doing in libel cases (and many libel cases, it should be remembered, are decided by juries) is applying the law as it has developed over decades of precedent. The reversed burden of proof, perhaps the most objectionable feature of English libel law, in not invented anew by Mr Justice Eady every time he puts his wig on.

Cohen's argument here is not just silly but probably counter-productive. What is needed, and needed urgently, is reform to the law so that it does not, as it does too often, serve mainly to stifle free speech and enrich lawyers. It should be restricted, too, in jurisdictional terms, to end the present embarrassing position the London now has as the libel capital of the world. There should be a strong presumption in favour of free speech built into the law, and actions should be made more difficult to bring. If possible, courts should refuse to hear cases based on matters of scientific evidence in which they have no expertise. In most cases, claimants should be forced to prove malice. All these things are possible, if the government (or its successor) is prepared to make the necessary parliamentary time.

But to ensure change will require pointing out clearly how and why the present law is being abused, and how it got into its current mess, rather than (as Cohen does) clinging to the comfort blanket of a grand conspiracy theory. There are bad individual decisions, of course, unnecessarily narrow (or broad) judgements that have served to make matters even worse. Blaming judges, though, is too easy and often unfair. The worst that can be said of Mr Justice Eady is that he has sometimes taken a narrow, legalistic view and had insufficient regard to the wider social and political consequences of his rulings. But even there, in all honesty, he was merely doing his job. The problem is the law.