The discussion in the debate went as follows:
“The cheap and partisan and desperate way in which he and his aides have conducted themselves over recent days does him no good, it demeans the office he holds, and most important (sic), it makes it harder to achieve the lasting consensus that we need. The Chancellor said yesterday, and I quote, that I was, “clearly involved in communicating with the Bank of England and Barclays in October 2008 concerning the LIBOR market“, a claim which his aides repeat. If he has any evidence, he should produce it now in this House. At no point did I have any communication directly or indirectly with Mr. Paul Tucker. At no time – as an adviser, minister or subsequently Cabinet minister, and I had no discussion at any time with anyone about the LIBOR rate and its operation. If he will not provide the evidence now, he needs to stand up at this despatch now, and withdraw this utterly false allegation.”
“Right – in the last 48 hours we have discovered two things. First, that a report was commissioned by UBS that Baroness Wadeera now says she says she saw and commented upon. Second, we have from the personal account of Bob Diamond’s telephone call with Paul Tucker that senior figures in Whitehall contacted Paul Tucker. And Bob Diamond says in his evidence to the Commons Select Committee that these were ministers. In the last 24 hours, we have had the Shadow Chancellor say it might have been Treasury ministers at the time. We’ve had the former Chancellor of the Exchequer say that it definitely wasn’t in the Treasury, but may have ben someone in the Government. Let him explain what Labour’s involvement was, who were the ministers, who had the conversation, who were the senior figures. Let him answer for his time in office.”
“He has no evidence and he knows it because what he says was not true. You cannot have a Chancellor of Exchequer in this way. He made – wait – an utterly personal allegation about me. I give way to the Chancellor’s aides – until the Chancellor himself either ‘puts up or shuts up’. He can’t because he knows he has no evidence, the allegation is untrue, but he made it anyway because that is the integrity of the man, Mr Deputy Speaker.”
The content of the statement, as reported here in Business Week, is as follows:
“Osborne said in the Spectator that people close to former Prime Minister Gordon Brown, for whom Balls worked as an aide before becoming a minister in the previous administration, “were clearly involved” in the Libor affair and that “we just haven’t heard the full facts.” “My opposite number, who was the City minister for part of this period and Gordon Brown’s right-hand man for all of it, so he has questions to answer,” Osborne told the magazine. “That’s Ed Balls by the way.””
Put simply, libel is defamation in permanent form such as in writing (slander is oral). A defamatory statement is one which injures the reputation of another by exposing him to hatred, contempt, or ridicule, or which tends to lower him in the esteem of right-thinking members of society (Sim v Stretch , 2 All ER 1237, 1240, per Lord Atkin).
In this discussion which follows, it is important to understand that no legal claims have been brought. The discussion is only for theoretical purposes, and no criminal offences have been demonstrated.
The putative claimant (Ed Balls) must prove that the statement was defamatory, that it referred to him, and was communicated to a third party. The onus then shifts to the putative defendant (George Osborne) to prove any of the three defences: truth (or justification), fair comment (in the matter of public interest), that it was made on a privileged occasion. ‘Vulgar abuse’ is not held to be defamatory (Thorley v Kerry ), and it could be that George Osborne argues that it was ‘vulgar abuse’ made ‘in the rough-and-tumble of politics’. A problem for George Osborne is that innuendo can be held to be defamatory, and therefore such a statement may be defamatory; here the test is that ‘the hidden meaning must be one that could be understood from the words themselves by people who knew the claimant (Lewis v Daily Telegraph ), and must be pleaded by the claimant. Here, the test therefore refers to the people who know Ed Balls, who presumably are not confined to the readership of Labour List or Left Foot Forward? The potentially defamatory remark is specific, as a remark aimed at a wider class of members which is sufficiently wide may not be defamatory (this issue is considered in some detail by the House of Lords in Knupffer v London Express Newspaper Ltd. ).
Since its original publication in the Spectator, secondary reports of this accusation are now widespread. For example, the reports are now by Hélène Mulholland, Peter Edwards in Labour List, Andrew Trotman in the Daily Telegraph, Dan Hodges in the Daily Telegraph, the Guardian website, World News, Yahoo, and Nicholas Watt in the Guardian. However, such people who have reported on this would not be held to have committed a defamation, enshrined in s.1 Defamation Act  as a defence of ‘innocent dissemination’, for a number of valid reasons including if the people knew or had reason to believe that what (s) he did caused or contributed to the publication of a defamatory statement.
We now have good reason to believe that the statement was false, but was made to discredit Ed Balls politically (therefore lower his reputation amongst right-thinking voters, quite literally.) Jill Treanor, Rajeev Syal and Nicholas Watt write in the Guardian: “Amid Tory unease over Osborne’s tactics, Balls demanded a public apology after Bank of England deputy governor Paul Tucker repeatedly told MPs that he had not been encouraged to lean on Barclays to cut its submissions.”
5.49 pm on the Guardian blog yesterday reads as follows:
Labour MP Chris Leslie has put out his response to Tucker’s evidence, calling for an apology from Chancellor George Osborne.
Osborne said last week that “people around Gordon Brown” were “clearly involved [in the scandal around the manipulation of Libor]… That’s Ed Balls, by the way”. Leslie says:
The game is up for George Osborne. It is now crystal clear that the allegations he threw around were completely wrong and without foundation.
The deputy governor of the Bank of England has made it 100% clear that neither Ministers nor officials leaned on the Bank of England to ask Barclays to fix Libor rates. In addition Bob Diamond has also said that he did not believe he was being asked by Ministers or officials to fiddle Libor rates.
The last Labour government was rightly concerned with legitimate policy changes to reduce inter-bank lending costs during the global financial crisis. The Conservatives at the time even said they did not go far enough to reduce Libor. But that is completely different from the deliberate fixing of the Libor rate, which Barclays traders were involved in over several years.
Statements made in either House of Parliament are subject to ‘absolute privilege’. The actual publication in the Spectator itself may not be subject to parliamentary privilege, though this would be a media lawyer not me to opine about. Osborne, if a claim for defamation were ever made, might be able to argue that this was a legitimate point of debate, raised in the public interest. Angela Newsom, on the Treasury Commons Select Committee, said on BBC’s “World Tonight Programme, “I think it was a very valid discussion at the time about who knew what and it has now been completely squashed by Paul Tucker.” Generally, this public interest defence would normally apply to the ‘activity of public figures’.
The author is not a trainee solicitor, or a trained lawyer. He was however awarded his LLB(Hons) in English law from BPP Law School and LLM (with commendation) from the College of Law in 2009 and 2010 respectively. This discussion is only meant for academic purposes to raise a wider debate, and in no way should be construed as an opinion that any defamatory statements have been made. The law as stated is to the best of the knowledge of the author, Dr Shibley Rahman, and as such Dr Rahman would be most grateful for any constructive comments to further an intellectual debate.