Lord Lester of Herne Hill
I was not going to speak until I heard the noble Lord, Lord May, just now. He is identifying one of the main problems that the Bill is designed to tackle—it arises in the other parts of the Bill—on the way one approaches the defence of truth, honest opinion and privilege. The Bill seeks to take care of all of those. The cost matters are being dealt with separately and are very important.
All we are concerned with here is the initial hurdle to get rid of the trivial cases. We must not set the hurdle too high, because that would be unfair to claimants; nor too low, because that would be unfair to publishers. My own view is that one word in the English language is better than three. For that reason, I hope that the Government will stick to “serious” rather than giving the judges the headache of deciding how “serious” differs from “substantial”. They are perfectly capable, it seems to me, of interpreting an ordinary word in the English language. In that respect, I agree with my noble friend Lord Faulks.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, I shall begin with my usual disclaimer. I am not a lawyer. As I often say about my friends in this House who are lawyers, we are in their debt because if we had to pay them we could not afford them. We get the benefit of considerable legal expertise. The only problem is that it does not always point in the same direction. Nevertheless, it is welcome—as is the approach of the various groups that have become involved in this Bill. I pay tribute to my colleague and noble friend Lord Lester, who launched us on this path with his Private Member’s Bill, and the noble Lord, Lord Mawhinney, and his group, who in the pre-legislative scrutiny committee were extremely thorough. I also pay tribute to the Opposition, who played a very constructive role, and the various lobby groups that have come in. As has been said, it is a task of achieving balance.
I am grateful for the comments made about my own attitude. I take the view, particularly on this Bill, of President Harry Truman, who when asked whether the Marshall plan should be called the Marshall plan or the Truman plan said that it should be called the Marshall plan, as it is amazing how far you will get if you share a little of the credit.
I want to share the credit because my sole aim and intention in taking this Bill through is to leave us with a piece of useful legislation which will address some of the problems to which the noble Lord, Lord May of Oxford, has just referred of us having an unwelcome reputation for libel tourism, and to address some of the unfairness of costs.
As my noble friend Lord Lester indicated, we will be returning to this matter but I draw the Committee’s attention to my letter of 10 October, which is in the Library of the House and informs noble Lords that we were referring the matter of costs to the Civil Justice Council, an independent advisory body chaired by the Master of the Rolls, to advise us on this matter by the end of March 2013. As Members of the Committee may have noticed, the Government have subsequently announced that they have accepted Lord Justice Leveson’s recommendation that cost protection should be extended to defamation and privacy cases. Therefore, one of the matters which has been commented on most often, costs, is being addressed as this Bill moves forward. Whether we get the balance right is a matter for—
Lord Phillips of Sudbury
I am sorry to interrupt but I am trying to be helpful to my noble friend. I think that he just referred to a letter of 10 October.
Lord Phillips of Sudbury
I am most grateful, because I have a letter from 8 October.
Lord McNally
It was my fault. I thank my noble friend for drawing my attention to that. I hope that that sets a pattern whereby his interventions will be entirely helpful—as they always are. Before I dig deeper, I should turn to the amendments before us. In the light of requests from a number of noble Lords for information on what the serious harm test is intended to encapsulate, it may be helpful for me to explain as fully as possible the Government’s thinking behind Clause 1.
The introduction of a serious harm test reflects the Government’s view that there is merit in legislating to ensure that trivial and unfounded actions do not proceed. It is the first time that there has been a statutory threshold of this nature in defamation proceedings. In the draft Bill, we consulted on the following provision. It said:
“A statement is not defamatory unless its publication has caused or is likely to cause substantial harm to the reputation of the claimant”.
In formulating this provision, we examined a series of cases over the past century in which the courts have considered the question of what is sufficient to establish that a statement is defamatory. A recent example is Thornton v Telegraph Media Group Ltd, in which an earlier House of Lords decision on Sim v Stretch was identified as authority for the existence of a “threshold of seriousness”. In Jameel v Dow Jones and Co, it was established that there needed to be a “real and substantial tort” in the jurisdiction for a claim to be able to proceed. The claim which failed that test was struck out as an abuse of process. The “substantial harm” clause aims to encapsulate the tests applied in these and other cases. Our view at that point, which we expressed to the Joint Committee on the draft Bill, was that this would reflect and strengthen the current law. Establishing in statute a substantial harm test for the first time would give this requirement a new prominence and would help to discourage trivial and unfounded claims being brought.
In its report, the Joint Committee on the draft Bill took the view that a stricter test was appropriate and that,
“a threshold test that focuses on the seriousness of the allegation would raise the bar in a meaningful way and give greater confidence to publishers that statements which do not cause significant harm, including jokes, parody, and irreverent criticism, do not put them at risk of losing a libel claim”.
It recommended a test of serious and substantial harm.
Lord Mawhinney
Two things seem to be beyond dispute. One is that powers already exist for the courts to exercise their judgment over timing and that costs are escalating beyond the ability of most people to turn to the law for the defence that they are entitled to expect from the law. Given that those are both facts that I know my noble friend is relying on, how can he explain that not changing the first is likely to address the second?
Lord McNally
First, I have already pointed out that my noble friend’s concerns about costs are being addressed in parallel with the Bill. Secondly, as we go through the Bill, we need to look at it as a cohesive whole. There are other factors and proposals that deal with some of the problems he is concerned about. It may help the Committee, and the way that I want the Committee to work—we are in the Moses Room and so we will not divide at the end of these debates—if I say that I will listen very carefully to the contributions made by Members, look at the legal advice, whether unanimous or conflicting, and take the advice of my advisers. I see that as the best and most fruitful way of using this Committee. At this stage, I am trying to give the Committee an idea of the Government’s thinking thus far and what the background is to any particular proposal. That is not the final word on these matters, although it should not be taken as an encouragement that there is a concession in the offing. As an old hand, I hope that the noble Lord, Lord Browne, approves of the balance and that it will encourage my noble friend Lord Mawhinney, although not too much. We will see how these debates unfold.
The courts already have the power under Rule 3.4 of the Civil Procedure Rules which permits them to strike out all or part of a claim where there is no reasonable ground for bringing it or they consider it to be an abuse of process. The courts are very familiar with that power, and we have no doubt that they will use it more when this is in place.
Other lawyers have said to me that this will all be tested in the courts. Indeed it will but, to answer a point made earlier by the noble Lord, Lord Mawhinney, we are trying to lift the hurdle but are consciously trying to keep the balance right in what we are doing. I hope that noble Lords will be prepared to withdraw the amendment in accordance with the procedure for Committees in this Room. To take the point made by the noble Lord, Lord Browne, once people have had a chance to look at Hansard and at our thinking on any particular area, if they want further clarification, I would be very happy to talk to them. I hope that the noble Lord will be prepared to withdraw his amendment.
Lord Browne of Ladyton
My Lords, with all respect—a phrase that lawyers use when they have no respect—to all noble Lords and noble and learned Lords and to the Minister who boasts that he is not a lawyer rather than disclaims that he is, the most important contribution to our short debate, for which I am very grateful, was by the noble Lord, Lord May of Oxford. He reminded us that we are changing the law and that will significantly affect the way in which lawyers, be they judges, barristers or solicitors, work in advising. We have set ourselves the task of trying to make the law in this area clear to affect the way in which people behave. Most of those people are not lawyers, and nor should they have to be lawyers in order to understand the limits of behaviour that will put them at risk.
With respect to the noble Lord, Lord Lester of Herne Hill, who knows that I have an enormous degree of admiration for him, his response to the intervention by the noble Lord, Lord May of Oxford, was—I hate using this phrase—technically correct, but it missed the point. The point I am trying to make in this part of the debate is that we have an opportunity to give an explanation of what we think we are achieving here. We have a perfect example in this short debate because of the very concise and helpful interventions by a number of lawyers about just how that could be confused. I am extremely grateful for that. In a simple sentence, the noble and learned Lord, Lord Scott, supported my amendments and then made well made point that was not in any way undermined by the amendment tabled by the noble Lord, Lord Mawhinney, because neither he nor I—and I support his amendment for the purpose that I explained—think that judges are incapable of doing this. We know that judges are capable of looking at this test and applying it to the facts, having listened to the legal argument. We know because—although I have never practised in England, I have had to bone up on the procedure—there is a process whereby the issues in dispute become apparent by the process of pleading and the exchange of arguments and facts. I do not think that any of us have any doubt that judges will be able to do that.
Actually, if that is the point at which decisions are made in relation to the tests that we set, we will have failed because we want these decisions to be made much earlier in the activity. We do not want people to have to go to the court at all, if that can be avoided. We do not want people to have to run off to very expensive lawyers who are capable of doing what we lawyers have just done in this debate, which is taking the advice of a former Lord Chancellor, the noble and learned Lord, Lord Mackay of Clashfern, who we all admire, which is that there is a distinction between “substantial” and “serious”. However, we had a very clear, lucid and believable explanation of why “serious” includes “substantial” from the noble Lord, Lord Faulks, using his experience and practice in the law. He was supported by the noble Lord, Lord Lester of Herne Hill, who said that this simpler, one-word test is the most appropriate way to move forward because the justice system can cope with it much better.
Lord Scott of Foscote
My Lords, perhaps I may add to what has been said. The inability to bring an action for defamation on behalf someone who is deceased does not prevent action being taken to prevent repetition of the untrue allegations that are being made if it can be shown that their repetition is likely to cause a breach of the peace. I came across such a case when I was a barrister and was once instructed to do something to stop lies, as I was told, being told about a deceased public figure. I said that defamation was not a runner but that one could get an injunction, not damages, to stop a repetition if there was a real likelihood of a breach of the peace. However, for that purpose, one had to get the consent of the Attorney-General. I applied to the Attorney-General, who refused to give his consent, and that was the end of the matter.
Lord McNally
My Lords, again we are indebted to my learned friends for enlightening this debate. Dealing with the reputation of the dead is a difficult matter. I recently had to answer a Question in the Lords about a pardon for Dr Alan Turing, and I answered by referring to the strict letter of the law as it now stands. I then found that someone had added a line to my entry in Wikipedia that stated that I was strongly opposed to giving a pardon to Alan Turing.
The issue is very difficult. As my noble friend Lord Hunt said, I saw Mr and Mrs Watson, and anyone who meets them cannot but be moved by the grief that they continue to feel. When I saw them in October 2010, the draft Bill was already starting its slow process down the slipway, and I suggested that they give evidence to the public consultation, which subsequently involved the pre-legislative scrutiny committee. Mr and Mrs Watson gave evidence and argued that the Government should allow proceedings to be brought in respect of defamed homicide victims. However, they were the only respondents who raised this issue, and neither the specific issue of defamation of homicide victims nor defamation of the dead more generally arose in evidence to the Joint Committee.
However, as has been said, the Watsons, who live in Glasgow, have raised this issue in Scotland, where it is a devolved matter subject to Scottish Law. The Scottish Government published in January 2011 a consultation paper, Death of a Good Name—Defamation and the Deceased. Analysis of that response has been published by the Scottish Government, but they have yet to indicate whether they are minded to propose any change to their law in this area.
I say again, as I said to Mr and Mrs Watson, that they should also cling to the judgment of the judge. That is the most sound and tested opinion of their daughter’s reputation, and it was clear and unequivocal in a way that I had hoped would have given them some of the comfort that they sought. However, I can imagine—and it does not apply just to famous people—that when things are said about loved ones after their death it must be extremely hurtful to those who have been close to them. Perhaps I should gently lob the ball back to my noble friend Lord Hunt in the hope that the handiwork he is undertaking in terms of a media response to Lord Justice Leveson and a regulatory body with teeth that bite might be an area where the teeth might bite if the media behave in the way that the Watson family suggested.
However, this amendment seeks to change the law in relation to the rights of representatives of deceased persons to bring defamation actions. It is not a provision for the avoidance of doubt. It is a long-established principle of common law that a deceased person cannot be defamed because reputation is personal. A defamatory statement about a deceased person accordingly does not give rise to a civil action for defamation on behalf of his or her estate. Relatives of the deceased also have no right of action unless the words used reflect on their own reputation. That reflects the central principle in civil proceedings generally that a claim for damages can be brought only by the person who has suffered the injury, loss or, in this case, damage to his or her reputation as a result of an act of omission of another person.
The Government believe that there will be significant difficulties with attempting to allow representatives to bring defamation actions on behalf of deceased persons. For example, in the event of defamation proceedings being brought by a representative of the deceased person, it would not be possible to bar that defendant from using the defences that exist to a defamation action. That would result in arguments over the truth of negative allegations about the deceased’s character, which inevitably would be distressing for their family and which could not be put to proof by questioning of the deceased.
Also significantly, this amendment does not propose to put any time limit on the period after death during which such an action would be brought. That potentially creates huge difficulties for historians wishing to engage in historical analysis and debate, especially given that there is no definition of representatives, which means that it would not necessarily need to be a close family member who brought the action on behalf of the deceased person. That could lead to a situation where a historian published a biography of a significant historical figure many years after that person’s death. He could be sued by a law firm or an individual with no close tie to the deceased person who was the subject of the potentially defamatory statement.
In the second subsection of the amendment, it is not clear to which individual the serious harm would have to be caused nor is it immediately apparent how a defamatory statement could cause a breach of the peace. However, it is because of the very serious legal and practical difficulties that I have already highlighted that the Government cannot support this amendment. For all those reasons, I hope that the noble Lord will withdraw it.
Perhaps I may say to the noble Baroness, Lady Bakewell, that the BBC and the police are investigating the Savile matters, and I think that I should leave it there for the moment.
On the point made by the noble Lord, Lord Browne, I have said before that I am amazed how often when I ask about a certain thing in the Ministry of Justice, they say, “Well, they do this better in Scotland”. I do not know whether that is a tribute to the quality of Scottish law, but it will be interesting when it is faced with the very real dilemma of where you draw the line. The noble Lord suggested a year or so, but wherever the line is drawn, there will be those who are just on the other side of it. It is a difficult dilemma, and you cannot but feel sorrow for the grief of those who are affected by it. I think that the Government are right to hold the line where it is but, as ever, we will keep an eye on other examples.
Baroness Hayter of Kentish Town
My Lords, although I am sure Lord Mawhinney will respond, as he moved this group, I shall make one point on the amendment standing in my name and that of my noble friend Lord Browne. If a company was attacked on its ethical role, that would also show in its share price—those of my generation might remember Barclays selling arms to South Africa. This would not necessarily affect sales, but it could still substantially affect a company’s financial position because its share price would be affected. There are other ways of measuring financial loss, and this is similarly the case with very small companies. If a very small shop of the kind found in Kentish Town was accused of having rats in the cellar, that would immediately lead to a drop-off in the number of people shopping there, and therefore I think that would count as substantial loss. Concerning the specific drafting, once the Minister has accepted that he will move his own amendment on the arguments we have given, I am sure his officials will make sure that the drafting is perfect.
Lord McNally
I have known the noble Baroness so long that I know when she is tempting me into sin. However, this has again been a very useful, very helpful debate. I confess that when I started out on this one of the things I wanted to do was to address the problems that have been faced by academics and others in making legitimate criticism and legitimate comments. Having listened to a large number of individuals and interested parties, there is no doubt in my mind that this law can have a chilling effect, and it is used very ruthlessly to stifle debate. I hope that we can do something to address this as we progress this Bill.
The noble Baroness, Lady Hayter, has obviously been very kind to me, because she did not point out that when I gave evidence to her committee I said that in my opinion corporations should not be allowed to sue. The then Lord Chancellor, Ken Clarke, took me into a quiet room, sat me down and, with the persuasiveness for which he is renowned, convinced me that corporations do have reputations and what the noble Lord, Lord Phillips, described as an ethical identity. This is a serious point, which has come out in the debate. As we go through the Bill, we are continually trying to get the balance between defending reputation and defending free speech. They are continually in our mind.
Regarding costs, I again point out to the noble Lord, Lord Mawhinney, although he clearly has doubts about the way these things are done in government—I do not know whether that comes from personal experience—that we have tasked the Master of the Rolls with the job of looking at this matter within a specific timescale: by next March. Since then, we have had a clear statement by the Prime Minister that the Government accept the recommendation by Leveson that there should be a cost-transferring system in defamation. Any powers of influence I have will be used to try to ensure that this is not go into the long grass. I am quite sure that the Master of the Rolls, Lord Dyson, will understand the urgency and the expectation that comes from the work with which he has been tasked.
Lord Mawhinney
I am grateful to my noble friend. I understand the point that he makes and he understands that part of the purpose of the Committee is—as we cannot vote—to put a little encouragement in front of him to think again. Regarding that, will he tell the Committee what the Government have said to Lord Dyson that they wish to see covered in the recommendations that he brings forward in March?
Lord McNally
In terms of what was actually said to Lord Dyson, if it is on the record somewhere, I will make it available to the Committee by next Wednesday. There is lots of clustering behind me. Even after two and a half years, I am still in awe of what happens behind the Minister.
The Civil Justice Council has been asked,
“to identify whether there are meritorious actions for defamation and privacy, which could not properly be brought or defended without some form of costs protection … if so identified, to advise … in which types of cases (or stages of cases) some form of costs protection should apply; and … what options for costs protection might be considered, with their advantages and disadvantages”.
Since then, there has been the added rider of Lord Justice Leveson’s opinion that cost QOCS should be applied to defamation cases. Therefore, I am sure that my noble friend’s scepticism will be noted by Lord Dyson and he will see that eyes are on him while he does this important work. Likewise, on the question of process, I refer to my letter of 10 December on early resolution—I think that this time I have the month right. We have asked the Civil Procedure Rule Committee to consider in the new year:
“The main issues which we consider should be determined early where they are matters of dispute are: Whether the statement is defamatory (including whether it satisfies the new serious harm test) … What the actual meaning of the words complained of is … Whether the words complained of are a statement of fact or opinion”.
The letter continues:
“We propose to seek the Civil Procedure Rule Committee’s agreement to provisions enabling either party to make an application for a ruling on any (or all) of the three issues listed above at the time of service of the particulars of claim (or at any time thereafter)”.
I hope that those changes in procedure will address this problem that has been highlighted as part of the issue. When I met Simon Singh, he mentioned to me that these issues of definition ran up the costs long before the case got to court. We are not going to cure everything, but if we can tease out of the system delays that work against individuals, rack up costs and cause this chilling effect, we will certainly be going in the right direction. I believe that on inequality of arms, the chilling effect, costs and early resolution we are in the right ballpark, as our American cousins say.
Corporations are a matter where we will listen to the Committee, but I must tell the Committee that in other places and parts of government there is strong resistance to conceding on this point. Let me provide the Government’s position. We recognise the concerns that lie behind Amendments 4 and 8, and the arguments that have been made by the Joint Committee and others in favour of restricting corporations’ right to sue in defamation. However, the Government believe that in this area there is a difficult balance to be struck. Clearly, businesses are often powerful and it is undesirable that they should be able to bully individuals or organisations with much more limited means by bringing, or threatening to bring, defamation actions, simply in order to stifle debate. Equally, we must recognise that businesses have genuine reputations to protect. They can be subject to unfounded or spiteful allegations that harm not just the management but shareholders and employees. This Bill seeks to make it harder for corporations or wealthy individual claimants to intimidate defendants with limited resources, but without removing their ability to seek redress where their reputation is genuinely damaged. The new test of serious harm will provide an effective deterrent to trivial and vexatious claims, regardless of who the claimant is.
It is also important to bear in mind the fact that corporations are already unable to claim damages for certain types of harm, such as injury to feelings. This means that to satisfy the serious harm test, they are likely in practice to have to show sufficient actual or likely financial loss. The serious harm test and other provisions in the Bill, such as the simpler and clearer defences and the removal of the right to jury trial, together with the accompanying procedural changes that we propose will reduce the cost and complexity of proceedings to the benefit of anyone trying to defend a case. In this context, the Government do not consider that the introduction of a permission stage for corporations would be appropriate. As part of the procedural changes that we are proposing, the court will be able to deal with the key issues in dispute at as early a stage as possible. An additional permission stage for corporations would almost certainly add to the costs involved.
Importantly, we have recently announced our intention to introduce cost protection measures in defamation proceedings. I referred to them as regards the Civil Justice Council. This will help address concerns in respect of cases involving an inequality of arms and will ensure that claimants and defendants of limited means are not deterred from bringing or defending defamation claims where the other part is a corporation, newspaper or individual with substantially greater resources. All told, we consider that this represents a fair and balanced approach that gives defendants of limited means significantly better protection than they currently enjoy and lessens the likelihood of intimidatory tactics being used against them, while also ensuring that corporations can still bring legitimate claims where their business reputation has been seriously harmed by unfounded allegations.
I have no objections at all to my noble friend Lord Mawhinney continuing to prod me on these issues, but I believe that the approaches we have made to the Master of the Rolls and the Civil Justice Council are the best and quickest way of addressing them. However, his continuing scepticism will be a spur to us all.
Lord Lester of Herne Hill
Most of what the Minister has said is extremely persuasive, and certainly his criticism of Amendment 8, to which I have added my name, is understandable. With reference to Amendment 4, which is much less detailed, if, instead of just saying,
“unless its publication has caused substantial financial loss”,
it said, “has caused or is likely to cause substantial financial loss”, whereby the proposed new clause would read,
“The Statement is not defamatory”,
and so on, that would do little more than restate the existing common law. Would the noble Lord and his team consider something that would set out in the Bill the actual common law position without debarring corporations or creating new hurdles for them?
Lord McNally
Once again I shall use my ultimate defence: I am not a lawyer, so I am not going to say yes on the hoof. I also wonder whether the words “substantial financial loss” covers reputation, as was referred to by my noble friend Lord Phillips. However, as I have said throughout our debate, I am listening. When I go back to the Ministry of Justice, I will certainly sit down with my officials and talk about the points that have been made and ask whether any of them can substantially help what is still my objective, which is to deal with the real problems such as those that have been set out by the noble Lord, Lord May, and other noble Lords. These represent evidence of how, on the one hand, corporations can bully, intimidate and chill, while, on the other, they may have reputations that can and should be defended. That is the balance that we seek to strike. I will look at what my noble friend has suggested, and I look to my noble friend Lord Mawhinney to retain his scepticism, but to withdraw his amendment.
Lord Mawhinney
I accept without reservation the determination of my noble friend the Minister to face the real issues that surround this legislation. There is no doubt or scepticism in my mind about that. I am grateful to colleagues for what has been a good debate. Perhaps I may say to my noble friends Lord Faulks and Lord Phillips, and to the noble Lord, Lord May, that broadly I agree with everything they said. The committee decided very early on that we were not constituted to draft legislation. We did not have the ability, skills or the knowledge to do so and we did not think that that was what we were being asked to do. I accept that all three speeches made the point that the drafting could be improved.
How it is improved is, of course, a matter for the Government, not for the committee because the other thing that we were very careful to insist on was that we were not making the law but simply offering advice to the Government, and they would in due course present to Parliament what they thought the law should be, and Parliament would decide whether it agreed with the Government. Therefore, in all three cases, without going into the details of what was said, I accept generally the points that were made. I hope that my attitude of hitting the big issues and leaving the Government to do the drafting and fill the smaller cracks is the right way to proceed, although I particularly thank the noble Lord, Lord Phillips, for his phrase about wanting to encourage companies to re-enter the world of ethics. I am sure that he was speaking for the whole Committee when he said that.
I declare an unusual interest in that I am a life member of the Association of University Teachers. That interest is not often required to be mentioned. However, I mention it specifically in relation to the contribution of the noble Lord, Lord Triesman. As one of those who were subject to his leadership, I want to put on the record how excellent that leadership was. That qualifies him and what he said to be taken seriously by this Committee. I hope that the Minister will reread the noble Lord’s contribution several times.
I could not agree more with my noble friend Lord Lester of Herne Hill that certain things should be statutory and on the face of the Bill and that others should not be statutory and therefore not on the face of the Bill. I learnt through many a happy hour spent on the committee that case management was one of the things that should not be put on the face of the Bill, so I entirely agree with my noble friend. However, I have a caveat which he did not mention but which I should like to add to what he said: namely, we have to be confident that case management will be addressed non-statutorily and will be changed. I use the verb “changed” deliberately because the evidence was submitted to our committee over and over again that case management issues drove up cost, caused delay and huge irritation, and separated perhaps millions of our fellow citizens from the protection of the law. That is the case management that we have at the moment.
I am not being particularly critical and I do not have the skill or the knowledge to say what aspects of case management need to be changed but my committee was adamant that case management must be addressed. I add a rider. We did not suffer from delusions of grandeur. We did not believe for one moment that this was a penetrating shaft of light into our consciousness that had not occurred to anybody before. Indeed, if the Minister pushed me, I could probably find bits of evidence to support that statement.
That brings me back to reflections on Mawhinney’s scepticism. It is not arbitrary and capricious. It has a history, although not necessarily one that is identified with me personally. Our committee was delighted when it came to the conclusion, not least through the Minister’s personal efforts, that he wanted to take this subject seriously. I think that on the very first page of our report we welcome the fact that we thought he was taking it seriously because so many of his predecessors had danced round this maypole and then gone home and not taken any serious steps. So the Minister already has lots of brownie points in the bag. What we need to do now, with all good will, is to help him get across the finishing line. In reflecting what has been said on this amendment, I think that that will be helpful. Particularly at this time, we all recognise that there is a balance to be struck between defamation and taking measures that might inhibit economic growth, with all the benefit that that would produce.
However, I refer the Committee back to the noble Lord, Lord Phillips. It was he who introduced the concept of ethics, which is relevant to this conversation. I say to the Minister, we would all be saddened if there were nothing in the Bill that talked about corporations and their responsibilities. I mentioned earlier that we had a long debate about the values of codification as against writing new statute. The reason that we saw importance in codification from time to time was—a point made earlier by, I think, the noble Lord, Lord May, but if I am wrong, I hope to be forgiven—that ordinary people ought to be able to read the law of the land and understand broadly what it means.
The common law is hugely important but way beyond the understanding of the normal citizen, in terms of its actuality and potential change. It may therefore fail in some respect an important element of transparency that should characterise our laws. That is not—I repeat “not” in front of my noble and learned colleagues—an attack on the common law. This report does not attack the common law, which is hugely important in the way that we are governed and in the judgment, character and integrity of our judges. However, this is a case whereby putting some codification in Bill would send a message that corporations have responsibilities and that we are not impressed at the way that some of them occasionally discharge those responsibilities.
With that encouragement, I am happy to beg leave to withdraw my amendment.
Lord May of Oxford
I commend very highly subsections (5)(c) and (d) of the new clause proposed under Amendment 7. This is the first mention that I have come across—although I have not read every word—of “public interest”. As many noble Lords will know, there has been a lot of pressure from many sectors of the outside community that the Bill does not do enough in looking at public interest as an offsetting factor. As regards subsection (5)(c), I wonder whether the words “complained of” are “a statement of fact or opinion”. If they are a statement of fact, it seems to me that, defamatory or not, or financially injurious or not, a fact is a fact and no one should be liable for stating a fact. Yet—I am becoming parrot-like in repeating again and again—I can give many examples where people have had huge pressure on their time and been put to ludicrous expense in defending a matter of fact. I hugely welcome those two proposals.
Lord McNally
My Lords, again, I want to be able to think about and to look at the arguments that have been deployed. As I have said, I am not so experienced in the law as to know where this balance is, particularly on case management. I know that the Select Committee and a lot of the evidence given by individuals and organisations as this Bill progressed emphasised that good case management was part of the key to dealing with early resolution and the problem of cost. Whether it is wise or even proper to try to write these matters into an Act of Parliament rather than trust the judiciary to deal with these matters, certainly I look forward to a meeting with the Master of the Rolls early in the new year and to talk to others about this.
In the mean time, let me put on record the responses to these two amendments. Amendment 5 would make it compulsory for the parties to use a form of alternative dispute resolution before a defamation claim could come before the court. The Government are firmly committed to reducing the costs of defamation proceedings and to resolving legal disputes by techniques other than litigation wherever possible. The overriding objective of the Civil Procedure Rules puts the onus on courts to encourage and facilitate the use of alternative dispute resolution, and the Pre-action Protocol for Defamation already requires parties to consider some form of alternative dispute resolution, including mediation or early neutral evaluation.
Lord Triesman
My Lords, I was loath to interrupt the Minister while he was in full flow, but if I have understood properly the point that he made, there is an unwillingness on the part of the Government to try and compel anyone to go through any other process if that person concludes that the only process they really want to go through is testing the case in a court, with all the consequences. Part of the argument is that by forcing people to go through another process, it might indeed add to the costs of the entirety of the case, rather than potentially to manage and reduce those costs.
If I have understood that argument properly, have the noble Lord and the Government considered whether some independent advice could be given, as is sometimes suggested in, for example, matrimonial cases, whereby people are guided as to whether proceeding through the court is likely to be helpful or appropriate, rather than just plunging in? I suggest that that would be done at relatively minimal cost and might be significantly beneficial.
Forgive me for putting this at any length at this stage in the debate, but one of the reasons why that might be beneficial is that on occasions—and I have seen this—you find that you are dealing with people whose normal place of residence is overseas. They are not United Kingdom nationals and may, none the less, be representatives of significant pools of wealth or of large corporations. They tend to say that they may not be able to follow our legal practice particularly carefully but they have great confidence in the ability of our courts to take on cases and deal with them. By that stage, those people are then on one course, rather than another, with considerable costs, rather than otherwise—and I understand the point that has been made about management of processes in order to reduce costs. I ask the Minister and the Government to consider whether there is some way not of compelling people to take a particular course of action but to seek advice about the likelihood of one route working more successfully than another.
Lord McNally
Again, because I am not a lawyer, I will take that away and take advice on it. As regards wealthy individuals who want to test their cases before British judges, although we have been talking about judicial case management, we have a judiciary which is world renowned for its integrity and impartiality and we should not forget that. However, I will take that matter away.
Lord Faulks
Before the Minister finally sits down, I hope that I may ask him one further thing. This is something which I think arose out of Second Reading, and is consistent with what the noble Lord, Lord Triesman, said about trying to minimise expenditure: that is, the possibility of having these defamation actions heard in the county court as opposed to the High Court, which would automatically reduce the cost.
Lord McNally
Again, I will take that matter back. The noble Lord may be interested to know that my right honourable friend the Lord Chancellor who, like me, is not a lawyer, is much attracted by that idea. It is certainly worthy of consideration. Unfortunately, the noble Lord, Lord Hunt, is no longer in his place but if he and his colleagues come forward with some robust self-regulation for the media, mediation may well find its proper place in that area as well. A balance needs to be struck between the extent to which you can force mediation and the extent to which it can be readily available. I will certainly look at the point made by the noble Lord, Lord Triesman.
Lord Mawhinney
My Lords, I thank the Minister for putting on the record the Government’s reaction to these amendments. I understood the point made by my noble friend Lord Faulks, although I am not sure that I entirely buy it. Speaking on behalf of the committee, by putting forward these alternatives in this way we were trying to make the point that if something is on the face of the Bill it is not part of case management; it has to be done before case management actually starts. That goes back to the point that the noble Lord, Lord Triesman, made, which we had in mind: that is, the possibility of something that is a lot quicker, a lot cheaper and which can speed up a solution one way or another. My noble friend Lord Faulks is right: it could be an expensive addition. I want to encourage him to believe that it does not have to be that way. Clearly, both of us would want the “does not have to be” rather than the “might be”.
I say to my noble friend the Minister that if the problem is simply one of legal requirement, I am guessing that my colleagues on the committee would settle for early resolution, whatever the form in which it was framed in order to make it happen. The early, quicker, cheaper resolution—where cheaper does not mean inferior—was sought by the committee but, more importantly, by all those who gave evidence to the committee. When my noble friend gives definitive responses to some of these issues on Report, I hope that he will bear in mind the perhaps totally unfair perception which might linger that it is more important to the Government not to do anything that might cause even a tremor in the judiciary than to look for positive ways to solve the real problems to which he committed himself. Because I believe that he has committed himself to those real problems, I beg leave to withdraw the amendment.
Lord McNally
My Lords, I may have been rather hasty in saying that the Lord Chancellor is in favour of county courts, but I am going to rush back to the MoJ and tell him to get it on the record quick because there seems to be so much support for them. It is an interesting point and again I can see the value in the recommendation as just read out by my noble friend Lord Mawhinney. Along with other matters, I will ponder on it. I did not say that we could not legislate for case management, but I want to hear the arguments. As for my noble friend’s suggestion that the Lord Chancellor might be afraid of doing this because of a fear of offending the judiciary, that is not something I have heard said about the Lord Chancellor very often in recent weeks.
Amendment 6 deals with the issue of strike-out. It would put a new strike-out power into the Bill that would require the courts to strike out actions that do not meet a certain threshold unless the interests of justice require otherwise. We do not consider that there is any need for this provision. As I indicated when responding to Amendment 3, the serious harm test in Clause 1 and the new early resolution procedures will ensure that the court has at the forefront of its mind the need to make sure that trivial and unfounded claims do not proceed. As the noble Lord, Lord Browne, anticipated, I will also argue that the courts already have a power in Rule 3.4 of the Civil Procedure Rules which permits them to strike out all or part of a claim where there are no reasonable grounds for bringing it or they consider it to be an abuse of process. The courts are very familiar with that power, and we have no doubt that they will use it more in defamation cases once the new higher threshold is in place. As I have said before, one of the aims of this Bill is to make the law simpler, so unnecessary duplication such as that proposed in this new clause would conflict with that aim.
As we have explained in the note recently provided to Peers, we intend to make changes through the Civil Procedure Rules to ensure that the key preliminary issues are determined at as early a stage in the proceedings as possible. Where the question of whether the claimant has suffered or is likely to suffer serious harm is in dispute, this is one of the main issues that the court could be asked to consider under the new procedure. On that basis, I hope that the noble Lord will agree to withdraw his amendment.
Lord Browne of Ladyton
My Lords, I shall do my best to get my words in the right order, something that I am learning to do every day in your Lordships’ House. I thank the Minister for a response which to a degree I anticipated when moving the amendment. I am grateful to the noble Lord, Lord Lester of Herne Hill, for complicating quite considerably my deliberations on this issue. I think I understood his point about the absence of the serious harm test in his Bill, and I know that the Government have prayed that in aid as part of the reason it is not necessary to provide for a strike-out procedure in this Bill. I shall also interrogate the Lugano Convention argument to see whether it has a significant effect on the existing rules of court that the Government are also praying in aid as part of their argument for why this is not necessary.
I thank the Minister for the detail set out in his response, and as I have said before, I am willing to have faith in an holistic approach in our deliberations, as it has become known. If we can have some transparency in the other elements of the holistic approach and be satisfied that they will meet our collective desire to offer the opportunity for people to reach early resolution in disputes of this kind in an affordable way and in a timescale that makes sense in relation to the issues, I am content to beg leave to withdraw my amendment. However, I am sure that we will come back to this issue later, if not in the form of an amendment, at least as part of our further debate.