A lesson of history about libel

The legal threat of Niall Ferguson.

The legal threat of Niall Ferguson over a hostile review in the London Review of Books by Pankaj Mishra of his Civilisation: The West and the Rest is, at best, unfortunate.

As with the case of British Chiropractic Association v Simon Singh, one suspects that this is the sort of dispute not well suited to a libel court. Whether Mishra's (frankly rather unreadable) review actually made the "insinuations" that Ferguson asserts, does not, in my view, lend itself easily to the libel litigation process. By the time Ferguson's meaning of the "words complained of" is determined, and all the applicable defences worked out, one or two years will have passed and hundreds of thousands of pounds will have been spent. And the case would still probably be no nearer trial.

A better way would be, as Ferguson has indeed done, to set out why Mishra's insinuations are incorrect. If Mishra was wrong-headed in, for example, comparing Ferguson's approach with that of a little-known vile American historian, then Ferguson's rebuttal will be all that is really needed. There appears to be no good reason for Ferguson to press on for an "apology" backed with the threat of expensive libel litigation. An apology in such circumstances would not have any real-world effect of vindication. In fact, it may well be said that Ferguson -- paradoxically -- will have damaged his reputation more with a threat of a libel action than any book review by Mishra would ever do.

One would instead urge the approach of historians of previous generations. For example, in the early 1960s, Hugh Trevor-Roper and AJP Taylor got into a vicious spat over the latter's Origins of the Second World War. Trevor-Roper, a professor at Oxford University, wrote an extremely aggressive review of his colleague's book, ending with the comment:

It [the book] will do harm, perhaps irreparable harm, to Mr Taylor's reputation as a serious historian.

But Taylor replied, tearing apart the Trevor-Roper review in an article "HOW TO QUOTE: Exercises for Beginners" which, in turn, ended:

The Regius professor's methods of quotation might also do serious harm to his reputation as a serious historian, if he had one.

(Source: Ved Mehta's wonderful contemporaneous account of many early 1960s intellectual disputes in England, The Fly and the Fly-Bottle)

Taylor and Trevor-Roper (and Toynbee, Elton, Thompson, and all the great historians) dealt with controversy by simply rolling up the sleeves of their tweed jackets and getting stuck into the next round of acrimony and recrimination. That, surely, is a better way than a claim in defamation.

This is not to say that Ferguson does not have a libel case. He may well do so. But all because one has a legal right, one does not necessarily have to exercise it. If anything, that is a lesson of libel history that even a historian can appreciate.

David Allen Green is legal correspondent of the New Statesman

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

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Stability is essential to solve the pension problem

The new chancellor must ensure we have a period of stability for pension policymaking in order for everyone to acclimatise to a new era of personal responsibility in retirement, says 

There was a time when retirement seemed to take care of itself. It was normal to work, retire and then receive the state pension plus a company final salary pension, often a fairly generous figure, which also paid out to a spouse or partner on death.

That normality simply doesn’t exist for most people in 2016. There is much less certainty on what retirement looks like. The genesis of these experiences also starts much earlier. As final salary schemes fall out of favour, the UK is reaching a tipping point where savings in ‘defined contribution’ pension schemes become the most prevalent form of traditional retirement saving.

Saving for a ‘pension’ can mean a multitude of different things and the way your savings are organised can make a big difference to whether or not you are able to do what you planned in your later life – and also how your money is treated once you die.

George Osborne established a place for himself in the canon of personal savings policy through the introduction of ‘freedom and choice’ in pensions in 2015. This changed the rules dramatically, and gave pension income a level of public interest it had never seen before. Effectively the policymakers changed the rules, left the ring and took the ropes with them as we entered a new era of personal responsibility in retirement.

But what difference has that made? Have people changed their plans as a result, and what does 'normal' for retirement income look like now?

Old Mutual Wealth has just released. with YouGov, its third detailed survey of how people in the UK are planning their income needs in retirement. What is becoming clear is that 'normal' looks nothing like it did before. People have adjusted and are operating according to a new normal.

In the new normal, people are reliant on multiple sources of income in retirement, including actively using their home, as more people anticipate downsizing to provide some income. 24 per cent of future retirees have said they would consider releasing value from their home in one way or another.

In the new normal, working beyond your state pension age is no longer seen as drudgery. With increasing longevity, the appeal of keeping busy with work has grown. Almost one-third of future retirees are expecting work to provide some of their income in retirement, with just under half suggesting one of the reasons for doing so would be to maintain social interaction.

The new normal means less binary decision-making. Each choice an individual makes along the way becomes critical, and the answers themselves are less obvious. How do you best invest your savings? Where is the best place for a rainy day fund? How do you want to take income in the future and what happens to your assets when you die?

 An abundance of choices to provide answers to the above questions is good, but too much choice can paralyse decision-making. The new normal requires a plan earlier in life.

All the while, policymakers have continued to give people plenty of things to think about. In the past 12 months alone, the previous chancellor deliberated over whether – and how – to cut pension tax relief for higher earners. The ‘pensions-ISA’ system was mooted as the culmination of a project to hand savers complete control over their retirement savings, while also providing a welcome boost to Treasury coffers in the short term.

During her time as pensions minister, Baroness Altmann voiced her support for the current system of taxing pension income, rather than contributions, indicating a split between the DWP and HM Treasury on the matter. Baroness Altmann’s replacement at the DWP is Richard Harrington. It remains to be seen how much influence he will have and on what side of the camp he sits regarding taxing pensions.

Meanwhile, Philip Hammond has entered the Treasury while our new Prime Minister calls for greater unity. Following a tumultuous time for pensions, a change in tone towards greater unity and cross-department collaboration would be very welcome.

In order for everyone to acclimatise properly to the new normal, the new chancellor should commit to a return to a longer-term, strategic approach to pensions policymaking, enabling all parties, from regulators and providers to customers, to make decisions with confidence that the landscape will not continue to shift as fundamentally as it has in recent times.

Steven Levin is CEO of investment platforms at Old Mutual Wealth.

To view all of Old Mutual Wealth’s retirement reports, visit: www.oldmutualwealth.co.uk/ products-and-investments/ pensions/pensions2015/