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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How the shadow cabinet forced Jeremy Corbyn not to change Labour policy on Syria air strikes

Frontbenchers made it clear that they "would not leave the room" until the leader backed down. 

Jeremy Corbyn had been forced to back down once before the start of today's shadow cabinet meeting on Syria, offering Labour MPs a free vote on air strikes against Isis. By the end of the two-hour gathering, he had backed down twice.

At the start of the meeting, Corbyn's office briefed the Guardian that while a free would be held, party policy would be changed to oppose military action - an attempt to claim partial victory. But shadow cabinet members, led by Andy Burnham, argued that this was "unacceptable" and an attempt to divide MPs from members. Burnham, who is not persuaded by the case for air strikes, warned that colleagues who voted against the party's proposed position would become targets for abuse, undermining the principle of a free vote.

Jon Ashworth, the shadow minister without portfolio and NEC member, said that Labour's policy remained the motion passed by this year's conference, which was open to competing interpretations (though most believe the tests it set for military action have been met). Party policy could not be changed without going through a similarly formal process, he argued. In advance of the meeting, Labour released a poll of members (based on an "initial sample" of 1,900) showing that 75 per cent opposed intervention. 

When Corbyn's team suggested that the issue be resolved after the meeting, those present made it clear that they "would not leave the room" until the Labour leader had backed down. By the end, only Corbyn allies Diane Abbott and Jon Trickett argued that party policy should be changed to oppose military action. John McDonnell, who has long argued for a free vote, took a more "conciliatory" approach, I'm told. It was when Hilary Benn said that he would be prepared to speak from the backbenches in the Syria debate, in order to avoid opposing party policy, that Corbyn realised he would have to give way. The Labour leader and the shadow foreign secretary will now advocate opposing positions from the frontbench when MPs meet, with Corbyn opening and Benn closing. 

The meeting had begun with members, including some who reject military action, complaining about the "discorteous" and "deplorable" manner in which the issue had been handled. As I reported last week, there was outrage when Corbyn wrote to MPs opposing air strikes without first informing the shadow cabinet (I'm told that my account of that meeting was also raised). There was anger today when, at 2:07pm, seven minutes after the meeting began, some members received an update on their phones from the Guardian revealing that a free vote would be held but that party policy would be changed to oppose military action. This "farcical moment", in the words of one present (Corbyn is said to have been unaware of the briefing), only hardened shadow cabinet members' resolve to force their leader to back down - and he did. 

In a statement released following the meeting, a Corbyn spokesperson confirmed that a free vote would be held but made no reference to party policy: 

"Today's Shadow Cabinet agreed to back Jeremy Corbyn's recommendation of a free vote on the Government's proposal to authorise UK bombing in Syria.   

"The Shadow Cabinet decided to support the call for David Cameron to step back from the rush to war and hold a full two day debate in the House of Commons on such a crucial national decision.  

"Shadow Cabinet members agreed to call David Cameron to account on the unanswered questions raised by his case for bombing: including how it would accelerate a negotiated settlement of the Syrian civil war; what ground troops would take territory evacuated by ISIS; military co-ordination and strategy; the refugee crisis and the imperative to cut-off of supplies to ISIS."

George Eaton is political editor of the New Statesman.