Lord McNally
“(b) the defendant reasonably believed that publishing the statement complained of was in the public interest.”
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, this is the first opportunity for me to associate myself with the apology that my noble friend extended to the noble and learned Lord, Lord Lloyd, and I do so. The noble and learned Lord has indicated that we can move on, but perhaps I should say that when one of the observers of this Committee asked me the other day what my intention was, I felt a little like Metternich’s reaction when Talleyrand died: “Well, what does he mean by this?”. I repeat again for the benefit of the Committee that my objective is that by the end of the Committee, we will be able to bring forward a better Bill. That is the only intention I have. I have no secret orders or red lines. I want a Bill that clarifies the law, gets the balance right between reputation and freedom of speech and puts the law in a better place than when we started this journey. I am, of course, absolutely grateful to the many noble and learned Lords who are contributing to our deliberations. I would only urge on them this humility: the noble Lord, Lord Browne, made the point at the beginning of our debate that British libel law—or the English law of defamation, I am being corrected—is not in good repute. That is why we are bringing forward legislation. I humbly say that the various judgments over the years have not brought us to a good place. That is why we are here and that is my sole intention.
As someone who has some knowledge of the history of the trade union movement, the trade union solidarity show by my learned friends is very impressive, but I hope that we will get a Bill—to take the point made by the noble and learned Lord, Lord Lloyd—that the textbooks can take guidance from and that will give people some better clarity and assurance. However, as people always tell me, even when we have finished our work, it will be tested by a judge and we may then find out how good it is. That is my mission statement and I hope we can all join in that. I will certainly make sure that we try to respond to the points raised in Committee and that we have a Committee stage that gets the Bill into good shape. People have been telling me that Clause 4 is the heart of the Bill, and getting it right will be the test of how good a Bill it is. The fact is that we have tried in this process and been advised on several responses—particularly as to whether we should have lists or general principles. I should make it clear that I will listen carefully to the legal and other expertise around the table on whether we have got this right. In this approach, I am considering not only legal opinion but I want to be sure that academics, scientists and the general public know what we are about and where the thresholds are that we are trying to set.
In moving the amendment, I shall speak also to Amendment 16 and 21. These amendments respond to concerns that were expressed during the Second Reading debate in this House and in the other place about the way in which the public interest defence in Clause 4 is currently articulated.
At Second Reading, a number of noble Lords were concerned that Clause 4 as drafted might not adequately reflect the current law in the light of the Supreme Court’s decision earlier this year in Flood v Times Newspapers. Some noble Lords also took the view that including a non-exhaustive list of factors to which the courts can have regard in considering the defence could risk creating a rigid checklist approach and add to the evidence that would need to be gathered and to the expense of running the defence.
From a different perspective, some stakeholders have called for a radical shift in the clause towards the interests of defendants by introducing a requirement for the claimant to show malice in order to secure any remedy beyond publication of an explanation or correction. Let me say at the outset that the Government do not believe that this approach, which changes the burden of proof, would provide appropriate protection for people who have been defamed.
However, we are grateful for the many contributions that have been made to the debate in this House and elsewhere, and we accept that the clause can be improved. Our amendments make changes which recast the defence in a number of respects. First, Amendment 14 replaces the requirement for the defendant to show that he acted responsibly in publishing the statement complained of with a requirement for him to show that he reasonably believed that publishing the statement complained of was in the public interest. Consideration of whether a publication was “responsible” involved both subjective and objective elements. “Reasonable belief” also does this, but we believe that it brings out more clearly the subjective element in the test—what the defendant believed at the time rather than what a judge believes some weeks or months later—while retaining the objective element of whether the belief was a reasonable one for the defendant to hold. The courts will need to look at the conduct of the publisher in deciding that question.
Amendment 21 inserts a new subsection requiring the court, in considering whether the defendant’s belief was reasonable, to make such allowance for editorial judgment as it considers appropriate. This expressly recognises the question of editorial discretion which has featured in recent cases, in particular in the Flood judgment. Although this provision is likely to be most relevant in journalism cases, it has been drafted in a way that does not limit it to that context.
Amendment 16 removes the list of factors which the clause currently invites the court to consider. This is a difficult issue. Although we do not believe that the courts would apply the list of factors, based on those in Reynolds, as a checklist, we have responded to strongly expressed concerns that the use of a list may be likely to lead in practice to litigants and practitioners adopting a risk-averse approach and gathering detailed evidence on all the factors listed, in case the court were ultimately to consider them relevant.
Lord McNally
I would have to take advice on those matters. In a room full of lawyers, I am not going to make comments ex cathedra, ad hoc, on the hoof, or whatever description they might say. Why not ask your questions? By the time I come to reply I might even give you an answer.
Lord Phillips of Sudbury
My Lords, I am grateful to my noble friend and sympathise with his predicament. In the light of what he has said, and as we have an opportunity to discuss this at a further stage, I will not move Amendment 15 at this time.
Lord McNally
My Lords, my first thought is about the wish that Sir Brian Neill, having just been released from hospital, should follow closely our proceedings. If you are, Sir Brian, please switch off. It is not conducive to recuperation.
I said at the beginning that this clause is at the very heart of the Bill and the contributions have been extremely useful. Since noble Lords have been dishing compliments around, I am very grateful to the noble Lord, Lord Browne, for the attitude that he and the noble Baroness, Lady Hayter, have taken. Of course, in our system, the job of the Opposition is to oppose, and we understand that. However, I think that the more we can produce a Bill that is the result of all-party work and contributions, the better we get something that sticks. This is not an area for party games. When there is a campaign such as the Libel Reform Campaign, it is sometimes tempting for opposition parties simply to espouse the campaign and go down to the last with them. I appreciate where the noble Lord, Lord Browne, has been willing to tell the campaign that it cannot deliver. As we keep on saying, we are trying to get a balance between the right to free speech and the proper protection of reputation. If I can send a message to the Libel Reform Campaign, it is not to indulge in an exercise in impossibilism. We are trying to get this right. As the noble Lord, Lord Browne, and others who have had these responsibilities know, for every concession I make and every amendment that is carried, I have to write to Cabinet colleagues, not all of whom are as enthusiastic about reform as perhaps I am. That is the nature of things, and the way that this Committee is approaching it is helpful in that respect.
As to the amendment in the name of the noble Lord, Lord Browne, the noble and learned Lord, Lord Brown, has just said that he does not support it. I fear that that is part of the dilemma. However, I will think about it. As a layman, I tend towards thinking that there is nothing intrinsically wrong in writing the bleeding obvious into a Bill. I understand when people say, “Well, it’s covered in another Bill or elsewhere in this Bill et cetera”, but it is reassuring if the public can read very simply what we intend.
The noble Lord, Lord Browne, made the point that within the Bill there are a suite of defences. It is also worth reminding ourselves—the noble and learned Lord, Lord Brown of Eaton-under-Heywood, has just reminded us of it very clearly—that in the end we will be subject to interpretation by judges. We had a short debate yesterday about it, and that is what the separation of powers is all about. Of course this will be tested, and that is the challenge to the work we do. We will have a look at the phrase, “all the circumstances”. We have quite a long time until we meet again, and perhaps we can have some further talks about it.
Lord Mawhinney
Before my noble friend leaves this point, who are the Cabinet Ministers who fail the McNally test of enthusiasm?
Lord McNally
I will publish them on the MoJ website. Even better, I will tweet them. No, I will not. Now I am trying to run through in my head who they are.
It is interesting that the recently departed Solicitor-General, who was and is a practising libel lawyer, thought that this was entirely irrelevant, unneeded and so on, and argued very strongly against it. He felt strongly about it, although that is not the reason why he is now an ex-Solicitor-General.
Lord May of Oxford
Would the Minister’s decision have been difficult if a huge sum of money had hinged upon it?
Lord McNally
I was just going to pay the noble Lord, Lord May, a compliment. When he spoke about the fact that some of our colleagues are noble and learned, I was thinking that that goes with the rations, whereas I think that he is extremely learned, and that goes with reputation. I am not sure who he was thinking would take such a sum of money.
Lord May of Oxford
It is a question of solving the Simon Singh problem. However well we draft the legislation, if the hurdle is not high enough to justify—
Lord McNally
This is interesting. There is a suite of protections in this legislation, and I want to test it. I have had Simon Singh say to me, “Oh, this wouldn’t have protected me”. First, I have been here long enough to realise that you cannot draft law for one particular case, nor can you deal with particular circumstances that may have ratcheted up. However, what I want to do, and I mean this absolutely sincerely—I look particularly at the noble Lords, Lord May and Lord Bew—is to be able to meet senior academics and scientists and for them to say, “Yes, this does help”. This is the process that we are going through now. I hope that what the noble Lord, Lord Brown, referred to as the suite of protections that are built into the Bill will give a lot more protection to what we are doing.
To clarify the editorial matter, editorial discretion is not just about editors. The courts have used the term to refer to matters of judgment about how a story is presented, its tone and its timing. The courts recognise that there may be legitimately different views about this and that some allowances may be necessary but we do not think that publishers’ discretion is any clearer. Under the Government’s amendment, the courts will already need to look at the reasonable belief of the publisher. The reason we also proposed amendments referring to “editorial judgment” was to put this in the Bill to respond to concerns that we were not sufficiently reflecting Flood. It is better to use the language of Flood. At the same time, I can assure the Committee of our view that the term “editorial” is not limited to editors or newspapers. It is a more flexible term that leaves it open to the court to develop as necessary.
The noble Lord, Lord Phillips, wanted a clarification of “reasonable belief”. That phrase brings out more clearly the subjective element of what the defendant believed at the time, while retaining the objective element of whether the belief was a reasonable one to hold. I hope that that clarifies the matter; I shall read through it a few times myself over Christmas.
However, let us also be clear. The noble Lord, Lord Browne, referred to us introducing a liberalising defence, and the noble and learned Lord, Lord Brown, made this point. Yes, we are lifting the bar or moving the goal posts, as the noble and learned Lord, Lord Brown, helpfully explained as regards his thinking in the Flood judgment. There is a lot of talk about attempts to shackle the press; a lot of it is misguided. However, Clause 4 is a genuine attempt to strengthen freedom of speech and should be seen as such. The noble Lord, Lord Triesman, among others, raised important issues about the public interest. It remains the case that it will be for the court to determine the first limb of the test; that is, whether the statement complained of was, or formed part of, a statement which was a matter of public interest. Again, the noble and learned Lord, Lord Brown, helpfully let us into his thoughts on this matter.
That is a matter that we must think of. The noble Viscount, Lord Colville, and the noble Baroness, Lady Bakewell, explained to us what the responsible journalist does in these matters. The noble Lord, Lord Triesman, rightly reminded us of the question of what to do when the intention of the publisher or owner is to destroy a reputation. Do we give impunity to that? That is why, when our friends in the Libel Reform Campaign come close to asking for a blank cheque, I have to say that we cannot give it to them. We also have a responsibility, as well as a recognition that there is irresponsible publication.
We are moving on to new media, and my noble friend Lord Lucas will be pleased to know that that is another hospital pass that I have left for my noble friend Lord Ahmad. I would say to Twitterers the Twittering equivalent of “caveat emptor”: “Twitterer beware”. Twittering is not beyond the law. We somehow got the idea that new media is a law-free area. People are going to find that it is not.
Lord McNally
The Earl of Erroll
I intervene with great temerity given this incredibly legal provision. However, as an outsider, I cannot understand why the courts should not be allowed to determine whether or not someone has behaved responsibly. If a large organisation is involved, it should have to verify the information or take some reasonable steps before repeating an appalling slander, libel or whatever it may be. I cannot see why we should restrict the courts’ ability to look at all the circumstances by retaining the relevant measure. Therefore, I support Amendment 18 in the name of the noble Lord, Lord Lester.
Lord McNally
My Lords, when both the noble Lord, Lord Browne, and the noble Lord, Lord Lester, tell me that we are getting this matter wrong, I have to think very hard. However, I shall respond to it and then provide some further thoughts.
Amendment 19 is a government amendment and is grouped with Amendments 18 and 20, as we have heard. Amendment 19 makes drafting changes to bring the provisions on reportage, which were previously in subsections (3) and (4) of the clause, into one subsection in order to improve the overall clarity of the clause. It makes changes to refer to the test of “reasonable belief”, to which I spoke in the previous group of amendments.
“Reportage” has been described by the courts as,
“a convenient word to describe the neutral reporting of attributed allegations rather than their adoption by the newspaper”.
Clause 4 is intended to catch the core elements of reportage as articulated by the courts. These are that where the defendant publishes an accurate and impartial account of a dispute between two or more parties, the defendant does not need to have verified the information reported before publication. This would not, however, absolve the defendant from the need to satisfy the court that, in all the other circumstances of the case, it was reasonable to believe that the publication was in the public interest.
Amendment 18 would remove the provisions relating to reportage. Conversely, Amendment 20 would extend their application. We do not consider that removal of the reportage provision altogether would be desirable, as is proposed by my noble friend Lord Lester in his amendment. As I indicated in speaking to Amendment 14 in the previous group of amendments, for the operation of Clause 4 generally, in assessing the reasonableness of the defendant’s belief that publication was in the public interest, the court will be looking at the conduct of the publisher. Often that will include examination of the steps the publisher took to verify the information. We would not want the clause’s silence on the matter to suggest that there may in future be a need to verify in reportage cases whereas now there is not.
However, nor do the Government think it right to extend reportage more widely, as is proposed by the noble Lord, Lord Browne, in Amendment 20. We consider that it should, as now, be limited to circumstances where the claimant is a party to the dispute. The reason that we adopted this approach is because if the claimant is a party, for the account to be “accurate and impartial”, his side of the story would be likely to have been reflected in the published article. On the other hand, where the claimant is not a party, that would not necessarily be the case. We believe, on balance, that where the claimant is a third party, the defendant should have to satisfy the court that in all the circumstances of the case it was reasonable to believe that publication was in the public interest. This should properly include consideration of steps taken to verify, should the court decide that is relevant. That point was made latterly by my noble friend. On this basis I hope that the noble Lord will be prepared to withdraw his amendment.
I am not sure which noble Lords made the accusations that the amendment will cause confusion, is unnecessary because the common law is already developing or overly restrictive, but I shall look at those criticisms. I hope that my noble friend will withdraw his amendment and that he and the noble Lord will allow the government amendment to stand. I will look very carefully at this amendment, and the points that have been made. I give an assurance that I will take another look between now and Report.
Lord Lester of Herne Hill
My Lords, I am grateful to the Minister for his explanation. The criteria in Clause 4, as it now stands, are objective public interest and reasonable belief, and I simply do not understand why those criteria are not sufficient to deal with reportage publication, as with any other publication. I am not clear as to what we are trying to save by putting these words in and I quite understand the point of view of the noble Lord, Lord Browne, which does accord with developing common law. All of this is unnecessary and I enthusiastically withdraw my amendment, knowing that all this will be thought about during the Christmas holiday of the noble Lord, Lord McNally.
Lord McNally
“( ) If the statement complained of was, or formed part of, an accurate and impartial account of a dispute to which the claimant was a party, the court must in determining whether it was reasonable for the defendant to believe that publishing the statement was in the public interest disregard any omission of the defendant to take steps to verify the truth of the imputation conveyed by it.”
Lord McNally
“( ) In determining whether it was reasonable for the defendant to believe that publishing the statement complained of was in the public interest, the court must make such allowance for editorial judgement as it considers appropriate.”