Aside from the pervasive wildfire of the phone-hacking scandal, the political probe into the chilling effect of English libel law continues to smoulder its way round the obstacles to reform.

Eminent judges were among the latest witnesses to wrestle with the difficulties of reform before Parliament’s Joint Committee on the Draft Defamation Bill, due to report in October.

Committee member Baroness Hayter asked why libel cases generally had to be heard in the High Court whereas lower courts, including magistrates’ courts, were quite capable of handling complex issues.

Justice Tugendhat, the High Court’s top libel judge, replied that the reason was that freedom of speech “has always been fundamental to our tradition.”

He said:  “It is a principle that has been fought for and developed over many centuries.  It is unlike other litigation.

“All litigation involves the whole of the community, in one sense: we all are concerned that the victim of a personal injury should be compensated.

“However, freedom of speech cases are different, because every freedom of speech case involves not just the parties but the listeners, the people who receive the information.

“It is so controversial and attracts so much attention – far too much attention, I fear – because everybody feels concerned when one person is silenced.”

The Committee also asked why judges had not given priority to freedom of expression as Parliament seemed to have intended when it passed S.12 of the Human Rights Act 1998 – the  statute that enacted into English law the European Convention on Human Rights.

Section 12(4) of the Act says courts must have “particular regard” to the importance of the right to freedom of expression.

But European judges have said free speech is not to be given precedence over competing rights, such as the right to reputation and privacy, and many Westminster politicians feel S.12 has not worked.

Justice Tugendhat said: “The reason why it has not worked to the extent that it has not is that there is a tension between it and the earlier provisions of the Act.

“It is impossible to enact the European Convention and then include a provision that seeks to give a different emphasis to the different Convention rights from what would be given otherwise.”

Asked what the Government could do if it decided to restore what Parliament had envisaged from S.12, Lord Woolf, a former Lord Chief Justice, said Parliament had taken on “an almost impossible task,” because current law also required our courts to follow European courts’ interpretation of the Convention.

Sir Charles Gray, a retired libel judge, added: “The problem goes back to the Convention itself.

“Article 8, the privacy right, and Article 10, the freedom of expression right, are, according to my understanding of Convention law, to be given equal status.

“Parliament, in its wisdom, enacted Section 12(4), which says that the courts should have particular regard to the right to freedom of expression, but how can one reconcile that with Convention law, which says that the two rights are equal, and often in conflict, as we all know?”

The high cost of libel litigation was seen as a key issue for reform, but not everyone wanted proceedings to be as cheap as possible.

Sir Stephen Sedley, a retired appeal court judge, wanted costs to remain sufficiently high to deter media organisations from over-stepping the mark for commercial gain.

He said: “I would have thought that one of the overriding concerns of this Committee needs to be the reduction of the distorting effect of cost on the achievement of justice on either side in libel proceedings.

“The problem that arises from that is that it is possible to produce a cure that is worse than the disease if all it does is make libel cheap to commit.

“Somehow, there needs to be some kind of balancing mechanism that brings justice within the reach of the small as well as the large litigant, but does not simply make it a bargain for a media outlet to commit a libel, knowing that the increase in its circulation will pay for the damages.”

When one considers such obstacles to reform, including the fact it may currently be impossible for Parliament to require priority to be given to freedom of expression, the Committee’s options seem to be shrinking as steadily as Rupert Murdoch’s.