Legal Services Act 2007 (Chartered Institute of Legal Executives) (Modification of Functions) Order 2014
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The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, I shall also speak to the draft Legal Services Act 2007 (The Institute of Chartered Accountants in England and Wales) (Modification of Functions) Order 2014, the draft Legal Services Act 2007 (the Chartered Institute of Patent Attorneys and the Institute of Trade Mark Attorneys) (Modification of Functions) Order 2014 and the draft Referral Fees (Regulators and Regulated Persons) Regulations 2014.
The first order—for CILEx, the Chartered Institute of Legal Executives—is made under Section 69 of the 2007 Act and modifies the functions of CILEx. CILEx is currently an approved regulator under the Legal Services Act 2007 for the following reserved legal activities: probate activities, the exercise of a right of audience, reserved instrument activities, the administration of oaths and the conduct of litigation. If made, this order will enable CILEx to operate more effectively by modifying its powers to make regulatory arrangements.
Specifically, the order will enable CILEx to make compensation arrangements as defined in the 2007 Act and allow it to make rules authorising it to establish and maintain a compensation fund, requiring CILEx-authorised entities to contribute to it. The compensation fund will protect clients of CILEx-authorised entities who suffer loss in the event of dishonesty or a failure to account.
In addition, this order modifies the provisions of Schedule 14 to the 2007 Act so that the intervention powers there are available to CILEx in its capacity as an approved regulator. For example, these powers would enable CILEx to seek an order from the High Court to intervene into an entity, to enter its premises and seize documents or property. This power will both protect consumers and provide the public with continued assurance that there are mechanisms in place to protect and safeguard their interests.
Taken together, the increased safeguards put in place by this order will enable CILEx to authorise and regulate entities for the first time. This will enable individuals who have been assessed by CILEx as sufficiently competent to carry on one of the reserved legal activities for which CILEx is designated to set up independent businesses for that reserved legal activity. The LSB conducted a public consultation between 23 June and 21 July 2014. No responses were received. This order follows a recent order designating CILEx as an approved regulator for reserved instrument activities and probate activities, bringing the total number of reserved legal activities it can regulate to five.
The Section 69 order for the Institute of Chartered Accountants in England and Wales modifies the functions of the institute in two main ways. First, it enables the institute to make regulations or rules providing for appeals to the First-tier Tribunal against its decisions as an approved regulator and licensing authority. Secondly, and similarly to the CILEx Section 69 order, this order modifies the provisions of Schedule 14 of the 2007 Act so that they apply to the institute in its capacity as an approved regulator. This gives the institute the same intervention powers as an approved regulator that it already has automatically as a licensing authority. This order follows the two orders, made in July and August this year, designating the institute as an approved regulator and licensing authority for probate activities.
This Section 69 order, dealing with appeals and intervention powers, now comes before the House following a public consultation by the Legal Services Board. No responses were received to the consultation. The recent designation of the Institute of Chartered Accountants in England and Wales as an approved regulator and licensing authority for probate activities has been an important step. The institute’s entry to this sector will help to contribute to the growth of the legal services market and bring further innovations, leading to benefits to consumers of legal services.
The order will ensure that the institute’s decisions as both an approved regulator and a licensing authority can be appealed to the First-tier Tribunal, which will help to ensure consistency of regulation. The order will also provide the institute with the same intervention powers as an approved regulator that it already has as a licensing authority, similarly ensuring consistency of regulation.
With regard to the Section 69 order for the Chartered Institute of Patent Attorneys and the Institute of Trade Mark Attorneys, CIPA and ITMA are both approved regulators under the Legal Services Act 2007 for the following reserved legal activities: the exercise of a right of audience, the conduct of litigation, the administration of oaths and reserved instrument activities. CIPA and ITMA have applied to be designated as licensing authorities in relation to the same reserved activities for which they are approved regulators.
The order essentially does two things. First, it harmonises the approach that CIPA and ITMA take in regulating all registrants to undertake patent and trade mark work, whether they are registered bodies—that is, non-alternative business structures—or licensed bodies—that is, alternative business structures. It does this by making various provisions to ensure that the regulatory framework for CIPA and ITMA is the same whether they are acting as an approved regulator or as a licensing authority. Secondly, the order enables CIPA and ITMA to make rules or regulations providing for appeals to the First-tier Tribunal or High Court against decisions made by CIPA and ITMA as an approved regulator and, in certain circumstances, as a licensing authority.
CIPA and ITMA are not yet licensing authorities, but they applied in May 2013 to the Legal Services Board to be designated as licensing authorities in relation to the same four reserved activities for which they are already approved regulators. Following a recommendation from the LSB to the Lord Chancellor, a decision in principle to make such a designation order was made by the Parliamentary Under-Secretary of State on 5 March. The order was laid in Parliament on 20 November. The present Section 69 order modifying the functions of CIPA and ITMA comes before the House following a public consultation by the LSB. No responses were received.
The order puts in place a number of measures to harmonise the approach that CIPA and ITMA take in regulating all registrants to undertake patent and trade mark work, whether they are acting as approved regulators or, eventually, as licensing authorities. This will help to ensure consistency of regulation and will pave the way for the continued widening of the legal services market.
With regard to the CILEx referral fee ban order, the background is that on 1 April 2013 a ban was introduced on the payment and receipt of referral fees in personal injury cases by “regulated persons”. The ban was introduced by the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which defines “regulated persons” as solicitors, barristers, claims management companies and insurers. This ban was a response to the concern, highlighted in Lord Justice Jackson’s review of civil litigation costs, that referral fees in personal injury cases contribute to the high costs and volume of personal injury litigation.
As CILEx-regulated practitioners did not fall within the definition of regulated persons at that time, they were not included in those provisions. However, if made, the CILEx Section 69 order being debated here today will bring CILEx-regulated practitioners who are authorised to conduct litigation within the scope of the referral fee ban. Without formally extending the ban to them, they will be able to pay and receive referral fees. This would compromise consumer protection and would give them an unfair commercial advantage over other practitioners in the field.
This order therefore adds CILEx to the list of regulators for the purposes of the ban and specifies the group of practitioners to whom it will be applied. In so doing, it fulfils one of the major objectives of statutory regulation—namely, to protect and promote the public and consumer interest. It will also create a level playing field in relation to other regulated legal service providers.
In conclusion, these orders enable those bodies to strengthen their regulatory powers, leading to greater consistency and greater protection for consumers, and I commend them to the Committee.
Baroness Hayter of Kentish Town (Lab)
My Lords, I rise simply to welcome the first three orders which extend alternative business structures—which, of course, started under the 2007 Act. That change is gradually rolling out and is to be welcomed.
I want to say a particular word of welcome about the first order, on CILEx, because CILEx has gone through part of the process to enable legal executives to carry out reserved or regulated legal activities, which now include litigation, rights of audience, administering oaths, probate and conveyancing. As the Minister suggested, CILEx members are currently not able to set up their own businesses unless they get together with someone else who is regulated by another regulatory body such as the Law Society. In future, however, with this change, CILEx will be able to authorise independent CILEx businesses. That is good for clients. As we know, many local firms, particularly small ones, will not go to a lawyer when they have a legal problem because of the expense. This much broader provision of legal services will therefore be very good. At the moment, only about 12% of small businesses turn to a lawyer even when in difficulties. With this gradual increase in what they can do, as well as a greater availability of CILEx businesses, these specialist firms will be able to offer a service.
I want to say just one other thing. Because of the particular way in which CILEx’s members come up through the institute and become lawyers, CILEx is composed of a far broader mix of people, from a broader range of backgrounds, than is perhaps the case with the traditional lawyer. It has a much more diverse membership in terms of, for example, ethnicity, as one-third of CILEx members are from ethnic minorities; gender, as three-quarters are women; and social background—indeed, 86% did not have parents who went to university, a statistic which is quite different from that applying to some other groups. What is happening with individual lawyers will now also happen with these new businesses. They, too, will be more diverse, and represent the diverse needs of consumers. I therefore thank the Ministry of Justice for getting this through. The Minister indicated that there had not been many responses to the consultation but, as I understand it, that is basically because people were happy with the change. I think that it will be broadly welcomed.
Lord Faulks
My Lords, I am grateful for the contribution to this debate from the noble Baroness, Lady Hayter, and the noble Lord, Lord Kennedy, who I know broadly welcome all these changes by statutory instrument. I shall deal first with what the noble Baroness said about CILEx. She accurately described this as the next step in rolling out CILEx so that its increased role and activities can be used by more people. She rightly pointed out that many people will go to legal executives rather than spend more money on lawyers. There is increasing confidence in the standard of advice that they are giving. I have been to a number of events of theirs, and it is a profession that is in good health. The noble Baroness is also right to point to the range of diversity among their number. Although my figures do not precisely coincide with hers, as there were some CILEx members who chose not to provide information, I confirm that on the figures that the MoJ has, 74% of CILEx members are women and there is a higher than usual percentage of members from black and minority ethnic backgrounds—certainly not less than 16%, which is encouraging.
The noble Lord, Lord Kennedy, asked whether the Government were satisfied that CILEx had put effective and appropriate arrangements in place generally for these arrangements. He will appreciate that under the Legal Services Act 2007 the Legal Services Board was set up as a super-regulator. It was his Government who brought in that legislation, and it is not for the Government to regulate the regulator who then regulates the regulator, so we have to be satisfied that the Legal Services Board is in fact doing its job. Of course, as with all arm’s-length bodies, it is regularly reviewed.
The Ministry of Justice analysed each application made to it by the Legal Services Board before the Lord Chancellor agreed to make the specific orders that are before the Committee today. That included looking at the underlying regulatory framework. I can assure the noble Lord that that additional step was taken. The Ministry of Justice has to be satisfied with the overall framework of regulation that exists in relation to all these professions, whether it is legal executives or trade mark and patent attorneys. The Government are satisfied that effective and appropriate arrangements have been made in respect of the regulation and authorisation of CILEx members, and indeed in relation to compliance with the Legal Ombudsman, although the noble Lord did not specifically ask me about that.
The intention, by setting up the compensation fund and giving rights to intervention, is clearly to put such professionals in the same, more established position applying elsewhere and to provide additional security for consumers. That has been done, in so far as one can ever be 100% sure of these things.
Baroness Hayter of Kentish Town
Before the Minister sits down, I want to apologise: his figure was right and mine was wrong. The one-third figure refers to new CILEx students, so I got that wrong. His figure of 16% is right. However, up to one-third of new CILEx students are from black and minority ethnic groups.
Assisted Dying Bill [HL]
Baroness Hayter of Kentish Town Excerpts(9 years, 10 months ago)
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Baroness Hayter of Kentish Town (Lab)
My Lords, we have heard today the views of some doctors, but we know that their views are not unanimous. Indeed, the position of the Royal College of Surgeons was decided by just 26 members of its council, not by a ballot of its members. The BMA is against, but the BMJ is in favour. The churches have helpfully supplied their views but, as we have just heard from the noble and right reverend Lord, Lord Carey, they are also not unanimous.
I say, with enormous respect, that whatever the position of medics or clergy, the decision is not for them, much as we welcome their input and advice. Medicine has let us plan our families and, mercifully, medicine has helped our coming into the world, making it much less painful for our mothers. For our departing this world, are we really to be denied the help of health medicine—as it was, for a time, denied to women in childbirth? Historically, some Christians believed, as Genesis says:
“In pain you shall bring forth children”.
Early medics thought that chloroform could complicate births, with a very respected professor, Professor Meigs, saying at the time that painful contractions during labour were,
“natural and physiological forces that the Divinity has ordained us to enjoy or to suffer”.
Luckily, Queen Victoria would have none of that and gratefully accepted chloroform for the birth of her ninth child. The rest, as they say, is history.
The lesson, of course, is that it is the patient—in this case, the dying and their families—who we should hear: those such as Grace Hall, who saw her granddad and aunt suffer, so wants people to have life-ending medicine to self-administer when they choose; Joanna Carrie, who would like to have it there for herself; Kathleen Muir, herself a devout Christian, who does not want to hear of people having to throw themselves down stairs in order to die; Don Lane, who saw his father suffer terribly; Mr Hood, whose wife Camilla died of lung cancer; Pearl Prisley still, in her words, “torn apart”, by not having helped her father,
“the strongest and bravest of men, a war hero”,
when he begged her to end his misery; and Garth Weston, haunted by memories of his mother’s final pain as she prayed each night not to have to face another day. The lesson surely for us is to listen to those voices.
Commonhold and Leasehold Reform Act 2002
Baroness Hayter of Kentish Town Excerpts(10 years ago)
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Lord Faulks
I hope I understand the noble Lord to be referring to commonhold as one of the options that was made available by the 2002 Act. It is true that it was thought by all those involved with the legislation that there would be much greater take-up than there has in fact been in commonhold, which is popular in other parts of the world. However, the Government do not feel that it is appropriate to force people to go into commonhold arrangements. We welcome any attempt to bring it to people’s attention as an option. It is interesting that it is not taken up by any of those who write about the subject or by practitioners who should be advising their clients on whether it is appropriate. The Government stand ready to encourage it, in so far as it is appropriate for the Government to intervene in private arrangements.
Baroness Hayter of Kentish Town (Lab)
The noble Lord the Minister must surely know that there are delays occurring between an application for a hearing relating to a right to manage and the First-tier Tribunal hearing the case. There is then another delay in getting an outcome. However, when I asked a Written Question on that, the noble Lord, Lord Newby, replied that such information on timings was not available. Surely the Government need to know things like that, to know how this Act is working. Will the Minister put the research in hand so that we can have such information?
Lord Faulks
As the noble Baroness will know, the question goes across departments—that for housing and the Ministry of Justice. I do not have the details available but I will certainly ask for inquiries to be made along the lines of the question.
Assisted Suicide
Baroness Hayter of Kentish Town Excerpts(10 years, 2 months ago)
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Baroness Hayter of Kentish Town (Lab)
My Lords, this is about giving people choice in what must be the hardest decision of their life. I respect those who would not want assistance to die if they were terminally ill and in pain, but I hope that they do not prevent others having that option.
Suicide is legal, but without professional assistance we risk uncertain or painful suicide attempts, such as the throwing down the stairs that we have already heard about. If I were in that position, I would want to die with the safety and security of family or medical professionals by my side and without their being at risk of prosecution. If I want that, I want others to have that right.
The DPP’s policy has helped by indicating that assistance motivated by compassion is “unlikely” to be prosecuted. However, there is still a risk at the time of the act and an interview under caution, as we have heard. The current law is not working. About 250 Britons have travelled to Switzerland to get help, hundreds are illicitly given overdoses without any safeguards in place and countless people are helped to die by family members behind closed doors. These should not be the only options for dying people. We need assisted dying to be legalised, albeit with robust safeguards, so that the terminally ill can take control of their own ending but with society ensuring that there are strict criteria to prevent abuse.
Housing: Commonhold
Baroness Hayter of Kentish Town Excerpts(10 years, 3 months ago)
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Lord Faulks
The noble Lord is right about the degree of success. The House might like to know that only 16 commonholds have been registered in England and Wales, and the legislation came into force in 2004. None of them is particularly large. The largest, which has 30 units, is apparently a caravan site and only one with four units seems to be a conversion from leasehold.
During the passage of the Bill to which the noble Lord referred a number of increased rights were given to leaseholders, in particular of flats, to allow them to take over management of the building; to make it easier for leaseholders of flats to buy, collectively, the freehold of their building; and to allow unreasonable service charges to be reviewed by leasehold valuation tribunals. Part of the reason for the lack of take-up may be because other advantages accrued to leaseholders as a result of that legislation.
I am afraid that I am not in a position to give any of the assurances that the noble Lord required from me, but of course this is a matter that goes across different government departments and all his observations will be taken back to the Secretary of State.
Baroness Hayter of Kentish Town (Lab)
My Lords, this group of leaseholders is very lucky that it has the noble Baroness, Lady Gardner of Parkes, speaking on its behalf. But does the Minister accept that there is absolutely nothing in the Consumer Rights Bill currently going through Parliament to help this group or any other group of consumers in any meaningful way on a group issue such as this? Will he agree to try to work with BIS to strengthen that Bill to help these and other issues where a group of consumers is not getting the requirements that it wants?
Lord Faulks
The noble Baroness is no doubt right, although I cannot confirm that there is nothing in that Bill that adds to the rights of potential commonholders. The position is that, although it has been available, it simply has not been taken up by professionals who might be considered to be aware of it—solicitors or surveyors. It has not been the subject of articles in journals. There simply does not seem to be genuine enthusiasm for it. That is regrettable, but it is a fact and the Government do not believe that people should be forced to go into these arrangements if they do not want to.
Defamation Bill
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Baroness Hayter of Kentish Town
As an amendment to Motion B, after “2B” insert “and 2C”.
“Non-natural persons performing a public function
Non-natural persons performing a public function do not have an action in defamation in relation to a statement concerning that function.”
Baroness Hayter of Kentish Town
My Lords, in moving Motion B1, I start with an extraordinarily warm welcome for government Amendment 2B. There is absolutely no doubt that, late conversion though it may have been by the Government to the arguments of our Benches and of this House, it is a most important and welcome clause. It owes much to the persuasive charms—or energy, in the words of the noble Lord, Lord Lester—of the noble Lord, Lord McNally. The McNally Bill will do us fine.
However, there are still some outstanding issues, not least the one of cost, to which the Minister has just referred. Despite his efforts, and indeed the CJC report on this which was published only last week, we have of course not received the sort of assurance that we had hoped to receive by the time this Bill was enacted, of having agreement on costs. There was clearly a lot of disagreement within the working group, and there is no clear answer in the report as to how, in the absence of CFAs following LASPO, most people will be able to either start or defend a defamation claim. Without resolution on this, the risk of substantial costs remains, which more or less makes either the taking or the defending of an action open only to the super-rich, as the Government have acknowledged.
I turn to the two issues passed by this House but overturned by the Commons, which the Government have not accepted. First, there is the right of public services to sue for defamation. Derbyshire, as the Minister has said, is really shorthand for the democratic principle that government bodies should be open to uninhibited public criticism and therefore have no right to sue for libel. I assume that arm’s-length bodies, such as the former Border Agency, English Heritage and the Health and Safety Executive, are already covered under Derbyshire. However, there is a wider and growing ring of organisations contracted or commissioned to provide public services, such as independent treatment centres, opticians, dentists and GP consortia, which are either treating or diagnosing NHS patients. There are private organisations providing care homes, school dinners, public transport, advice agencies, prison management, free schools and DWP assessments. These organisations deal directly with consumers, patients, travellers or users—call them what you will—and are spending taxpayers’ money to provide such services on behalf of the state.
Two issues arise if such private bodies can sue for libel. First, there is not a level playing field in tendering. Such organisations can criticise a local authority provider with which they are competing to provide a service completely free from the risk of being sued for libel by that local authority. However, the local authority can be stopped from speaking about a private body in competition with it for the provision of services by the receipt of a chilling letter. Secondly, consumers and users cannot comment on a service they are getting without the risk of that infamous chilling letter.
In a debate in the other place last week, Sir Peter Bottomley reported that Atos, which does disability checks for the DWP, had sent a legal letter which resulted in the closure of a forum for disabled people because of their comments on Atos’s performance. This is deeply worrying. It is quite wrong to deny users the right to discuss their experience of what is, after all, a public service paid for by taxpayers. It is this that most concerns me. Mid Staffs hospital patients and their families were able to go to the press and finally get something done, as were the Hillsborough campaigners who were aghast at the police’s actions and the coroner’s findings. For big effective monopolies, this is the only way of driving up standards or penalising poor services, as consumers cannot shop around for an alternative provider.
It is much the same for other big, albeit now private, providers of public services. Users must be free to voice their concerns. This is what Motion B1, which adds Amendment 2C, is all about. It is about uninhibited users’ criticism of their public services, whether their provider is a local authority or a private concern. In the other place, the Minister did not really disagree with the case that we made, only about whether an amendment was necessary. Worryingly—and this has been echoed by the Minister this afternoon—she said that rather than a statutory provision it would be much better for the courts to develop the Derbyshire principle as they consider appropriate and necessary in the light of individual cases. However, this runs completely counter to the whole thrust of this Bill, which has been to codify and set down in one place, rather than in umpteen legal judgments that are effectively unavailable to the layperson, the whole law on defamation, clearly accessible to all and according to the decisions of Parliament on each issue. That is what this Bill and indeed the Minister in working on it have sought to achieve. If we agree that private concerns delivering a public service should be treated as a public body with regard to libel, Parliament should so decide and should write it into law.
Lord McNally
I have no doubt that my noble friend is right. What I would prefer to do, as we have been arguing throughout this, is to leave that matter to a judge and a court, when it comes before it. Where I do think there is a relevant question—not that my noble friend’s question was not relevant, it is just that I did not want to answer it—is on the question of charities. I can confirm to my noble friend Lord Phillips that it is not our intention to catch charities. We think that it is very unlikely that a court would find that a charity was a body trading for profit. There is a clear distinction between trading for profit and simply making a profit to reinvest as part of the more general purposes of the organisation. I hope that will give comfort to my noble friend.
He was another one that was concerned about bullying, and I have just made the point about balancing. I was pleased to hear about Bill McNally, not least that he was a successful poacher.
The points made by the noble Lords, Lord Bew and Lord Lester, about Northern Ireland are worrying, and I will take up the point about whether there can be some cross-party demarche to our fellow parliamentarians in the Northern Ireland Assembly, because it would be a great pity if Northern Ireland were to be out of step on this.
I understand why I am being asked to make definitions. However, the fault lines are moving and we will have to trust the courts with this strengthened Bill for them to make the right decision in this area. I take the point made by the noble Lord, which is very valid. Although I and Parliament have made clear our desire for a direction of travel here, there is a danger that the Derbyshire principle may be eroded because of this new configuration. However, trying to put the Derbyshire principle into statute at this time is not the way forward. The common law can be trusted to develop in the right direction. As I have said previously, no law on earth can prevent a speculatively threatening letter from a solicitor.
The Bill has been the work of many hands. If a piece of legislation were to be subject to a paternity test and DNA testing, this Bill’s DNA would be far more likely to be that of my noble friend Lord Lester than me. However, I have enjoyed—I think that that is the right word—taking the Bill through with the help of many hands and some very constructive contributions. I hope that the House’s last and most constructive contribution will be to accept the Government’s amendment and reject the amendment in the name of the noble Baroness, Lady Hayter.
Baroness Hayter of Kentish Town
My Lords, I am grateful to the Minister for making reference to my noble friend Lord Browne of Ladyton, who has just talked about surrogate parentage. Perhaps we can all claim a little of that. However, the contributions of the noble Lords, Lord May of Oxford, Lord Lester of Herne Hill, Lord Bew, Lord Faulks and Lord Phillips of Sudbury, and the noble Viscount, Lord Colville, actually reflected what was going on in Committee and on Report. The Minister used the tactful words, “development of thinking”; we are therefore not going to talk about u-turns, but simply welcome the development of thinking behind the new government clause.
I thank the noble Lord, Lord Bew. It sounds as if Northern Ireland in itself is a bad example, let alone the suggestion that this House or Parliament should make our laws on the basis of something decided in that Province. No matter how important that Province is, that is not the right way to make our laws here.
As regards two further issues, the first was on whether permission should be sought by corporates before they start an action. I am sure that the noble Lord, Lord Lester of Herne Hill, made a slip of the tongue, for which he is not renowned, when he said that in order to bring an action, companies would have to show serious financial loss. Of course, that is not right with the Bill at the moment. Corporates do not have to show financial loss in order to bring an action, but only to succeed in one. That is the crux of the matter in terms of whether permission should be given before they are able to start an action.
Lord Lester of Herne Hill
I am very sorry to intervene, but Clause 1 has to be read with what we are talking about.
Baroness Hayter of Kentish Town
It was the word “bring”. What we are trying to say regarding permissions is that permission of the court should be required in order to bring that action. In a sense, the most effective speech about permissions was, of course, made not by me but by the noble Lord, Lord May of Oxford. He discussed the case of Wilmshurst, which involved four years, £300,000, a risk to patients and actually of course no serious case at the bottom of it, because what he said was true. That is what we are trying to get rid of.
To turn to the main issue of Derbyshire, in a sense this is quite a simple judgment. It is a judgment about whether the noble Lords, Lord Faulks, Lord Lester and Lord McNally, are right that we should leave it to the courts and to judges to decide on whether the Derbyshire principle should now apply to other organisations providing public services, or whether we as Parliament want to take that decision. My fear about leaving it to the courts is how on earth users—patients, Travellers, people who are receiving those public services, the disabled who go to Atos—are to know what their rights are if we have to wait for the court to develop the Derbyshire principles. How are parties going to know? Who will fund the test cases? What message does it give to users and patients, and indeed to journalists wanting to report their complaints, if they must wait to know what the outcome is?
Lord Faulks
I am very grateful to the noble Baroness for giving way. I understand her desire not to encourage unnecessary litigation, but perhaps she could help me and the House with this. Even under the amendment it will be necessary for a court to decide whether a non-natural person is performing a public function. That of itself may be the question of a judicial decision, so even her amendment is not going to preclude any involvement of the judges.
Baroness Hayter of Kentish Town
It is interesting, but performance of public function will be under either a contract or a commission given out by the DWP or the local authority. They will be able to define that, because they do not simply stand up and say, “I am now providing a hospital”. A contract will exist with what used to be a PCT and is now a GP commissioning group. There will be a contract and it can be defined in that way. If that was the only problem and the Government wanted to concede other than on that, I would happily take that. No, the offer is not coming. I would like to conclude, if possible—
Lord Lester of Herne Hill
I am very grateful. The problem is that Section 6 of the Human Rights Act talks about functions of a private or public nature. That is fact-sensitive and cannot be codified, and has not been codified by Parliament in the Human Rights Act. That is why one cannot simply brush it aside and say, “Well, now Parliament must do so”, because Parliament has not done so in the Human Rights Act and cannot do so here. It has to be left to the courts to apply the test.
Baroness Hayter of Kentish Town
Parliament can decide that the organisations contracted to do those public functions should have the same restrictions on them, whether that be FOI or anything else, as a corporate body. That can be part of the contract. In a sense, it is a simple issue, and I mean this with absolute respect. I know that lawyers much prefer that these issues are decided in court. I think non-lawyers prefer it to be clear in law, and that is what we believe should happen. We do not want the Derbyshire principle to be eroded, in the words of the noble Lord, Lord Bew, by the threats continuing until a case is brought. For that reason we would like this to be in the Bill, and I would like to test—
Lord McNally
Before the noble Baroness sits down—no, she is absolutely right—and before she lures Lord May and others into her Lobby, would she confirm that what we are doing in this Bill would have significantly assisted both Simon Singh and Mr Wilmshurst? We have not left the situation as it was. We have made significant changes and built in significant protections, which should be taken into account before people decide which way to vote.
Baroness Hayter of Kentish Town
If they read my article, they would see that it says that this Bill has gone a long way towards what we want and it is only a shame that it is not perfect. As somebody who likes perfection, I am going to ask the House if, particularly on the first amendment, we should ensure that organisations carrying out a public service should not have the right to sue for libel.
Defamation Bill
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“Non-natural persons
(1) This section applies to an action for defamation brought by—
(a) a body corporate;(b) other non-natural legal persons trading for profit; or(c) trade associations representing organisations trading for profit.(2) The permission of the court must be obtained in order to bring an action to which this section applies.
(3) The court must strike out an application under subsection (2) unless the body corporate can show that the publication of the words or matters complained of has caused, or is likely to cause, substantial financial loss to the claimant.
(4) Non-natural persons performing a public function do not have an action in defamation in relation to a statement concerning that function.”
Baroness Hayter of Kentish Town
My Lords, after that excitement I rise to move Amendment 2 on behalf of my noble friend Lord Browne of Ladyton and the noble Lord, Lord Lester of Herne Hill. It would end the current position whereby individuals and organisations have identical hurdles to jump in an action for defamation.
Defamation is about someone’s reputation being trampled and seriously damaged by untrue statements made about them. Some commentators think that since only people and not organisations have feelings, only people should be able to sue. We do not go that far. We accept that organisations can be damaged by untrue allegations. Had horse meat not been in those burgers, or pork not in that halal food, such innocent information could have substantially and unjustifiably ruined a company’s reputation and caused untold financial harm. That would be the same if a small corner butcher, for example, was wrongly accused of having mice in the shop, if Perrier was falsely accused of being a purveyor of foul water or if a car manufacturer was said to have made a car with unsafe brakes.
Amendment 2 would allow such cases to be brought, provided that the allegations would cause substantial financial harm. The approach came from the Joint Committee. The amendment was moved in Committee on this Bill by its chair, the noble Lord, Lord Mawhinney, who cannot be in his place today. It is supported by Liberty, the Libel Reform Campaign, the Media Lawyers Association, Which? and the Commons Culture, Media and Sport Committee, which noted the mismatch of resources in a libel action between large corporations, for which money may be no object, and a small newspaper or NGO, which has had a stifling effect on freedom of expression.
In their response to the Joint Committee, the Government said that it was unacceptable that corporations were able to silence critical reporting by threatening or starting libel actions that they knew the publisher could not afford to defend but where there was no realistic prospect of financial loss.
This morning on the “Today” programme, John Humphrys, normally not afraid of anything, commented on a piece about branding and said that he dared not say anything derogatory about Coca-Cola because it would sue. John Humphrys may be powerful, but clearly not powerful enough to damage Coke’s profits. Even he knew the chill factor of a threatened action.
In Committee, our amendment was supported by my noble friend Lord Triesman and the noble Lords, Lord Faulks and Lord May of Oxford. It is no secret that the noble Lord, Lord McNally, shared this view until his then boss, Ken Clarke, took him into a quiet room, sat him down and, with the persuasiveness for which he is renowned, convinced him that corporations have reputations. The words are those used by the Minister in Committee on 17 December.
The cases that led to much of the pressure for libel reform were largely brought by corporations, using deep pockets and expensive lawyers to stifle criticism. An American corporation sued Dr Peter Wilmshurst, the British Chiropractic Association sued Simon Singh, Trafigura sued the BBC, manufacturers are for ever threatening Which?, and McDonald’s infamously and stupidly sued two individuals.
The Joint Committee on Human Rights called for the Bill to be amended so that non-natural persons would be required to establish substantial financial loss in any claim for defamation. Its report stated:
“Professor Phillipson … suggests that the failure to impose any restrictions on corporations’ ability to sue in defamation renders the law on reputation inconsistent and incoherent. Defamation law and the protection afforded under Article 8 has developed on the basis that the protection of an individual’s reputation is a significant human rights issue. Corporate claimants have neither personal emotions nor dignity, and yet are treated as natural persons for the purposes of defamation”.
The Commons Culture, Media and Sport Committee also called for a requirement on a corporation to prove actual damage to its business before an action could be brought. Regrettably, the Government opposed this on the grounds that a corporation does have a reputation. Our amendment does not contradict that. It simply requires companies to obtain the court’s permission to sue by showing that it has been, or is likely to be, caused substantial financial loss. This has widespread support and we hope that the Minister will think again.
The second part of our amendment extends the bar on public authorities being able to take action to other organisations performing a public function. The Derbyshire principle is a legal precedent that a government authority cannot be sued for libel. There are good reasons for this. First, it is a body corporate and thus, under the first part of the amendment, it should be debarred since it cannot show financial loss, given that all of us must pay its levy, whether by income tax or rates. The second reason is the comparative resources of any government body compared with those of an individual. The third is that such an authority had a monopoly over education, street cleaning, social care, parking and myriad other services, so any damage to a its reputation would not dent its market, while publicity was a key driver of improved services or access to redress, since users were unable to take their custom elsewhere. That world has changed. We now have free schools in competition with those run by local authorities, while the voluntary sector and private companies run myriad services on behalf of public authorities and paid for by public funds.
First, users need to be able to comment on such services without fear of a defamation action. Secondly, ratepayers and taxpayers must similarly be able to comment without fear of action. Thirdly, since such services are won through competitive tendering, it seems extraordinary that in compiling their bids, private or voluntary sector organisations can say what they like about the local authority against which they are bidding, but could take action for defamation if the local authority or any of its service users said a critical word about them. Are these providers spending taxpayers’ money on services, including issues such as the Border Agency, adoption and care homes, really to be protected from criticism by hiding behind the threat of defamation? Surely we should be able to hear questions about standards, complaints or conduct without lawyers bullying commentators into silence.
Our amendment would cover only those parts of a corporation performing a public function. Thus, Virgin Care would lose its right to sue over its commissioned work but Mr Branson could still protect his brand’s name where Virgin’s profitability was at risk. In the Commons, the Government rejected this on the excuse that the court in Derbyshire had rejected it. However, that was 20 years ago, when outsourcing was a fraction of what it is today. Now we have one lot of bidders—public bodies—at a disadvantage compared with others because one side can sue for libel but not the other.
In Committee, the Minister, the noble Lord, Lord Ahmad, said that,
“legislation could remove the flexibility that exists under the common law for the courts to develop the Derbyshire principle … in the light of individual cases … it is better to allow the courts to do this rather than introduce … statutory provision”.—[Official Report, 17/12/12; col. GC 467.]
This is a decision that Parliament should take, not the courts. Why do a 2013 Government, pledged to update our defamation laws, feel bound by a 1993 ruling when new legislation is exactly the time to make good any shortfall in the law? The Derbyshire case upheld the right for uninhibited public criticism of public authorities. We should extend this to organisations carrying out those services which were once the monopoly of public authorities.
The amendment is not unfair to corporations. It allows them access to the courts to pursue a defamation case where there is a risk of substantial financial harm to their business. It would remove that right only from those providing public services, akin to the existing bar on public authorities. I beg to move.
Lord Lester of Herne Hill
My Lords, I have added my name in support of the amendment, which would reinstate a provision from my Private Member’s Bill preventing profit-making bodies from suing in defamation except where they can show substantial financial loss or the likelihood of it. As the noble Baroness, Lady Hayter, has indicated, it would extend the Derbyshire principle to bodies performing public functions. It does not seek to prevent companies from suing. It simply requires that they show harm where they feel it most—in the pocket. I do not believe that companies should not be allowed to sue for libel. They have no feelings but they and their shareholders are able to be hurt in their pocket book. If we were to bar companies altogether from suing, that would clearly violate the European Convention on Human Rights because it would be discriminatory.
That is why, in my Private Member’s Bill and in these amendments, I have supported the right of corporations and trading companies to sue provided that they can show actual, or the likelihood of, serious financial loss. As the noble Baroness, Lady Hayter, indicated, the Joint Committee on the draft Bill concluded:
“It is unacceptable that corporations are able to silence critical reporting by threatening or starting libel claims which they know the publisher cannot afford to defend and where there is no realistic prospect of serious financial loss. However, we do not believe that corporations should lose the right to sue for defamation altogether … we favour the approach which limits libel claims to situations where the corporation can prove the likelihood of ‘substantial financial loss’ … corporations should be required to obtain the permission of the court before bringing a libel claim. This would encourage robust and decisive action by the courts to prevent trivial and abusive litigation from being commenced at all”.
Before I turn to the second limb of the amendment, I wish to make it clear that there is nothing to stop the directors or officers of a company from suing in their own right; it simply hampers the ability of the corporate body, the trading body, to do so itself. So it is conspicuously moderate and balanced and I hope that it will be acceptable to the Government.
Baroness Hayter of Kentish Town
My Lords, I thank noble Lords who have spoken, particularly those who have spoken in support—the most reverend Primate, the noble Lord, Lord Lester of Herne Hill, the noble Lord, Lord Marks of Henley-on-Thames, with whom I had the pleasure of serving on the Joint Committee, and the noble Lord, Lord Faulks, who raised an interesting question about small companies such as the ice cream vendor. In the Joint Committee, we went through the question of whether, as in the Australian situation, there could be very big internet companies with fewer than 10 people but enormous turnover. We felt that there was no way to cover that—although, as has been said, if someone is so identified, such as the well-known company Hayter and Hayter, I could probably take action in my own name.
I say two things to the Minister. I am disappointed by his response. The noble Lord, Lord Lester, said that this is moderate and balanced. I am slightly insulted by being called a moderate, but I can live with it occasionally. This is a moderate and balanced response. It is one that I should have thought the Government would accept. To put together the big issue of companies bullying and rich people bullying is not the right comparison. A few rich people do it. In our next amendment, we will come to a strikeout ability, which is the way to deal with those very few—and we know they are—who bully.
We are talking about, day after day, companies threatening anyone who says that they were not perfect with taking them to court, when they know that they can do that because of the depth of their pockets. On the Derbyshire principle, the Government are just wrong. If we want people exercising public functions but privileged to sue on their reputation, that does not give us the confidence for even more outsourcing of public functions. I think that the Government have taken the wrong call on that, and I would like to test the opinion of the House.
“Strike-out procedure
(1) The court must strike-out an action for defamation unless the claimant shows that—
(a) its publication has caused or is likely to cause serious harm to the reputation of the claimant; and(b) there has been a real and substantial tort in the jurisdiction.(2) For the purposes of subsection (1)(b), no real and substantial tort is to be regarded as having occurred in relation to the claimant unless the publication in the jurisdiction can reasonably be regarded as having caused serious harm to the claimant’s reputation having regard to the extent of publication elsewhere.
(3) Subsection (1) does not apply if, in exceptional circumstances, the court is satisfied that it would be in the interests of justice not to strike out the action.
(4) An order under subsection (1) may be made by the court of its own motion or on an application by any party to the action.
(5) Subsection (1) does not limit any power to strike-out proceedings which is exercisable apart from this section.”
Baroness Hayter of Kentish Town
My Lords, perhaps I can be very naughty and thank the House for its support on that Division.
The intention behind Amendment 3, which I move on behalf of my noble friend Lord Browne of Ladyton and myself, sets out a vital procedure—the ability of a court to strike out an action for defamation. This power is vital. Everything that the Bill seeks to achieve has been about reducing costs—which have completely distorted the law on defamation—by facilitating early resolution, as the Minister said in response to an earlier amendment. If the key issues can be decided early on—which the virtual ending of jury trials enables—then lawyers’ time is diminished and costs are brought down.
The costs in these cases, as we have heard, are such that they put the use of the law to protect reputation beyond the reach of all but the richest. The only others who have been able to make use of this law are those who have used no-win no-fee cases to do so—arrangements which are shortly to be ended. This law has been beyond the reach of most people. Virtually no defendant can contest a case, or claimants bring one, as they risk being crippled not just by their own legal costs but by those of the other side. I heard just today of a case involving one day in court which cost £40,000 on each side.
So costs are vital, as is early resolution. Up against a rich newspaper, no one without sizeable means can consider taking on a case. With a multimillionaire, an oligarch or a company even threatening an action, journalists, papers, NGOs or Which? will be reluctant to publish anything, no matter how true, that is going to tie them up in legal and financial nightmares.
The amendment is about the last part of the jigsaw. Having enabled early decision of most issues by clarity of the law and the reduction of the use of juries, we now need active case management and the clear authority of the court to strike out before trial actions that fail the test of serious harm based on a falsehood, or where other jurisdiction is more appropriate.
That clear ability of a court to strike out an action is what we want written into the Bill. It would allow either side to apply for this strike-out or for the judge to start the process. At one level, the amendment would write into the Bill what in effect exists in the Civil Procedure Rules but which will not be evident to the ordinary member of the public, be they a potential claimant or a defendant. Non-lawyers do not even know of the existence of the Civil Procedure Rules, much less what they say.
The Bill has aimed to provide for a lay person—an author or the defamed—a clear statement of what the law on defamation is, without recourse to a lawyer or a legal textbook. Our description of the power of a court to stop an action is clear. It would show to the claimant that unless they could show serious harm to their reputation, and a tort—that it was wrongful—then they should proceed no further. It would indicate to the defendant that they could go to the court and ask for such a strike-out when it was obvious to them either that the claimant had no relevant reputation here or that any such reputation had not been caused serious damage. This is clarity; it would add to the Bill a power that is already there, and it would be a signal that we want early case management so that as many of these issues as possible can be dealt with and, where appropriate, struck out. I beg to move.
Lord Lester of Herne Hill
My Lords, I cannot support the amendment. One of the difficult things about having a Bill like this is to decide what Parliament should be doing and what the courts should be doing. Parliament has put into Clause 1 this very important barrier of serious harm. In his important reply to the previous debate, the Minister helpfully indicated that serious harm—for example, with a corporate body—would include the likelihood of serious financial loss as one of the factors to take into account. Obviously this is a preliminary hurdle, and obviously the procedure rules, which are not in the Bill but will be in the Civil Procedure Rules, and case management will ensure that a party can come before the judge at the beginning and say, “Strike this out because the serious harm test is not satisfied”.
My first reason for not supporting this is that it deals with matters of procedure that will be dealt with, I think, by the Civil Procedure Rules themselves, a pre-action protocol and case management. The second reason is that the factors that are listed here,
“caused or is likely to cause serious harm … and … a real and substantial tort in the jurisdiction”,
are exactly the kinds of issues that one would expect the judge to have regard to, but the Government have very wisely decided to move against having a checklist—for example, in Clause 4. I think that our judges can be well trusted to be able to apply the serious harm test in Clause 1 without a checklist and without being fettered in any way.
I sympathise with the aim of the amendment, but it is an example of overreach. We should not be writing this kind of procedural detail into the Bill; we should leave it to the wise discretion of the judiciary.
Baroness Hayter of Kentish Town
I thank all noble Lords who contributed to this debate. I reassure the Minister that it was not just because they all feel so sorry for him about the last two votes that they all suddenly rallied to him. Theirs were genuine views, not sympathy.
All noble Lords who spoke are lawyers. They are very familiar with Civil Procedure Rules. Those of us who get caught up in defamation are not, so this amendment is less about the procedure than about signalling to people that they can apply for strike out. That is the essence of the amendment. It is because of that that I am cheered by the Minister’s response and his encouragement to courts to manage cases. That is undoubtedly half of it.
In Committee, the Minister spoke about new guidelines to go with the Bill. I hope that they will refer to the ability outside the Bill to get a strike out, because most people do not know about that but think the matter has to go to trial. That was the point we were really making. However, I know when I am not going to win a vote. I beg leave to withdraw the amendment.
Defamation Bill
Baroness Hayter of Kentish Town Excerpts(11 years, 3 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
“(3A) Where a complaint is received by an operator under subsection (3), the operator must publish on their website a notice of complaint alongside the relevant statement and, if the operator fails to do so within seven days of notice of the complaint, the operator will only be entitled to rely on the standard defences available to a primary publisher, if sued for defamation.”
Baroness Hayter of Kentish Town
My Lords, this amendment simply asks that where a properly constituted complaint is received, the website operator must post a notice alongside the allegedly defamatory material within seven days, signifying that it is being challenged. Should the website operator fail to do so, he or she would forfeit their particular defence under this clause, although they could still rely on the standard defences available to the primary publisher.
The amendment arises from a recommendation of the Joint Committee on the draft Bill, in response to which the Government seemed to cite only “issues of practicality”. In Committee, the Minister said that internet organisations,
“identified significant practical and technical difficulties with the proposal relating to the posting of a notice of complaint alongside defamatory material”.
He did, however, have the good grace to add that noble Lords may be saying,
“‘Well, they would say that’”.—[Official Report, 15/1/13; col. GC192.],
although he did not quite add, “wouldn’t they?”. However, when we met with Yahoo, it did not see a problem with our proposal. If it is so easy for an operator to post a comment, it should be no more difficult for it to add a rider simply stating that it is being challenged as defamatory by the person concerned.
Within this group we very much welcome government Amendment 17, which the Minister tabled and will no doubt shortly move. The aim of Clause 5 is simply to ensure that a claimant can find out from the web operator the name and contact details of the person who posted the comment so that they can sort it out between themselves. Provided that they do this, the operator has the defence that the author is the person to be sued. The exception for malice would cover where the operator in some way connived or encouraged the trouncing of someone’s reputation. I take this opportunity to congratulate the noble Lord, Lord Phillips, on his work in Committee, which I think led to this provision.
For the purposes of time, we did not speak to the amendment just before the dinner break but we were similarly concerned that that might detract from the centrality of this clause, which is to allow the operator to stand back and let the two primary parties resolve the dispute between them. Therefore, although we very much welcomed parts of that amendment, which incorporated the idea of a code, we hope that the operator will wash their hands of the matter unless and until the court finds the defamation proved, when the operator will have to take down the defamation or, assuming that the Government accept our amendment, they will have to put up a note reflecting the fact that there has been a challenge.
I hope very much that the Minister will put the excuse of practicalities to one side and accept Amendment 11. Certainly, we have received no lobbying from any operator arguing against it. It would contribute to dealing with these matters openly, as well as speedily. I beg to move.
Lord Allan of Hallam
My Lords, in speaking to Amendment 11, I declare an interest in that my day job is working for Facebook—a company that operates a website.
I think that there are some challenges around this proposal. In Grand Committee, in response to amendments proposed by the noble Baroness and her colleagues, we discussed the variety of web services and websites that exist today, and that is where I think there may be a challenge. There are indeed a number of websites that would be amenable to the posting of a notice and where that would be quite straightforward. However, when we consider the vast scope of speech that may exist across the internet, it is clear that we are dealing with a wide variety of services.
The intention behind Clause 5—and it is one that I support—is to make sure that we maximise the opportunities for people to speak freely. There may be cases where we need to interfere but we do not want to overly restrict the opportunities to speak freely and, as we discussed in the previous debate, the intention behind the clause is to ensure that a defence is widely available to such services.
My concern is that, while Amendment 11 would work perfectly well for a number of web services—I suspect the larger, more mature and more sophisticated could implement a system of posting notices in a relatively straightforward manner—there is a whole host of web services of varying shapes and sizes for which this would present a barrier. That would effectively mean that those services would lose the defence—a defence which I think we agreed in a previous debate is important to sustain the notion of free speech.
I understand the noble Baroness’s intention behind the amendment and I imagine that, as a matter of good practice, operators should post such notices where it is reasonable for them to do so. Indeed, Wikipedia has implemented a good practice system so that when content is contested, people are able to discuss it. That kind of good practice is reasonable but I think that restricting the scope of the defence only to services that are able to do that goes further than is sensible if we are to maintain a broad ecosystem of services in which a citizen of the United Kingdom can speak freely without excessive interference from people bringing complaints.
The only other point that I would note from an operator perspective is that every system that is put in place is abused. My noble friend Lord Phillips of Sudbury has talked about the interests of the “little man” or individual who wishes to make a complaint of defamation. That is absolutely right. However, the experience of web service operators is that some people will try to use any system that you put in place for their own purposes, and I can immediately see the scope for that when I look at this amendment. If you can guarantee that a notice will be published on a website simply by filing a complaint, I can see huge scope for it to be used by those who wish to be aggressive towards people who post content on the internet that they do not like, irrespective of whether there is any kind of substantive defamation claim. Given that the individual filing the complaint faces no penalty in this regime, a complaint can be found groundless but there will be no comeback on the individual who filed it. It would effectively create an avenue for that person to have their content posted alongside that which they do not like. I can certainly imagine that there would be significant instances when it was used in that manner. For those reasons, Amendment 11 would not be helpful to fulfilling the intention of Clause 5.
Lord Ahmad of Wimbledon
My Lords, again I thank all noble Lords who took part in the debate. I will turn first to government Amendment 17 in the name of my noble friend Lord McNally. I shall speak also to Amendment 11 in this group.
Amendment 17 provides for the defence under Clause 5 to be defeated if the claimant shows that the website operator has acted with malice in relation to the posting of the statement concerned. We tabled this amendment in response to the concern raised in Committee by my noble friend Lord Phillips of Sudbury that situations might arise in which a website operator acts maliciously, for example by inciting the poster to make the posting or otherwise colluding with him. While we consider that these situations are unlikely to be common, on reflection we agreed that in circumstances where a website operator acts maliciously it is right that the defence should be defeated. I thank my noble friend for bringing this issue to the fore.
Amendment 11 was also tabled in Committee. It would require a website operator who wished to rely on the Clause 5 defence to publish a notice of complaint alongside the material complained of within seven days of receipt of the complaint. The amendment also provides that if the website operator fails to post a notice within the set period, they will forfeit this defence and will be able to rely solely on the standard defences available to a primary publisher.
The basis for this amendment is a recommendation of the Joint Committee on the Bill that website operators should attach notices to online material when complaints are received. The Government’s position on this proposal was first set out in our response to the Joint Committee’s report. We repeated our position during the passage of the Bill in this House and the other place. The issue is one of practicality. Ministry of Justice officials received representations from internet organisations following publication of the Joint Committee’s report, highlighting the practical and technical difficulties with the proposal relating to the posting of a notice of complaint alongside defamatory material.
I will go through some obvious concerns that were raised, which may underline the practical issues. First, the point was raised that complained-about content might be embedded in a number of different sites, making it unclear who should be responsible for attaching the notice, where it should be placed and how it could be transferred across to other sites on which the material might subsequently appear. Again, as I said in Committee, I fully appreciate that the argument presents itself as one that it is in the interests of internet organisations.
In Committee we heard various arguments on both sides. My noble friend Lord Allan of Hallam highlighted practical issues from his own experience in the field. The noble Earl, Lord Erroll, talked about his daughter’s experience as a graphic designer for websites, and of the complexities of an operator attaching additional content without going back to the original programmer. I also acknowledge fully that my noble friend Lord Lucas expressed the view that it was far from impossible for website operators to attach such notices.
However, I will repeat on the Floor of the House what I said in Committee. The Government’s concerns around the practicality of this proposal have been clear from the publication of our response to the Joint Committee report almost a year ago. In that time nobody has presented to us any persuasive evidence to suggest that those concerns are not warranted.
On the issues raised by my noble friends Lord Allan and Lord Phillips about regulation, perhaps I may come back to them in writing to clarify the position. I have made a note of the suggestions that have been made.
I have listened, as ever, to all of the noble Baroness’s contributions and I am sure that she will say that our position has not changed since Committee stage, which I accept. However, we are where we are on this proposal. I repeat that no one has come to us to present a counterargument. Certainly if they have come forward, their arguments have not been of a persuasive nature. For those reasons, the Government cannot support Amendment 11 and I hope that the noble Baroness will see fit to withdraw it.
Baroness Hayter of Kentish Town
I thank all noble Lords who have spoken and, obviously, particularly the noble Lord, Lord Phillips, for his support and the interesting suggestion about it being in regulations. I congratulate the Government on their consistency. If that is all they have to offer, they may wish to look further.
The amendment relates only to subsection (3). In a situation where it was not possible for the claimant to identify the person who posted the statement, the claimant has given the operator a notice of complaint and the operator failed to respond to that in accordance with regulations, we ask that a notice is posted—it could be just a little red spot—that says “challenged by”.
I am concerned that the Government have met with the internet operators and, with no one else coming forward—we did not know that the meetings were taking place and were not asked to produce extra information—that they have taken the internet operators’ view on this as the one which will guide their hands.
Lord Hunt of Chesterton
In today’s International Herald Tribune there was a long editorial about the great superiority of the European approach to dealing with privacy on the internet compared with how the American Government were dealing with their internet operators. I support the noble Baroness, Lady Hayter. Just talking to internet operators suggests that you are not agreeing with even the opinions of the New York Times.
Baroness Hayter of Kentish Town
I am always happy to have the New York Times on my side. Clearly, however, the Government value internet operators and particularly value being consistent. On that basis, I fear that I must withdraw the amendment this evening.
Baroness Hayter of Kentish Town
I cannot be briefer than that, my Lords. We also welcome the amendment. It is small and sensible, and it reflects the Government’s willingness to listen to the House. In case I do not have the time to say that on another occasion on this Bill, I would like to say that there has been a lot of listening. More should be expected of auditors and their records should be open to scrutiny, so anything which allows wider discussions of their shortcomings can only be a good thing.
Defamation Bill
Baroness Hayter of Kentish Town Excerpts(11 years, 4 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Lester of Herne Hill
My Lords, I rise in support of the amendment and what I will say briefly has some relevance to my later Amendments 43 and 44, dealing with parliamentary privilege. I am very sympathetic to the idea explained by the noble Lord, Lord Mawhinney, that we should not wait for some future legislation as a result of the consideration of parliamentary privilege generally, but that where there is an issue that properly falls within the scope of defamation and nothing else, we should take advantage in this legislation to make the necessary amendments. I regard this as one necessary amendment for the reasons given by the Joint Committee on the draft Bill.
The Government stated in their response that this was best left to the forthcoming Green Paper and draft parliamentary privilege Bill. The Green Paper concluded that while some forms of correspondence between constituents were already protected by common law qualified privilege, it would be inappropriate to extend qualified privilege to all forms of correspondence as it would run the risk of potentially encouraging correspondence to MPs intended to circumvent court orders and damage the privacy or reputation of third parties. The Government expressed the view the it would better to continue to enable the courts to determine the boundaries of privilege in individual cases.
I understand that and it is an objection to a wider issue than liability and defamation procedures. It is all about breach of privacy and contempt of court. However, given that the amendment of the noble Lord, Lord Mawhinney, seeks only to provide qualified privilege in defamation proceedings and that there seems to be agreement that it is already covered by the common law in appropriate circumstances, I see no good reason in principle to oppose it. I note that the Libel Reform Campaign supports it. It suggested adding “Private” at the start of the amendment to distinguish between letters and e-mail and social media.
Baroness Hayter of Kentish Town
On behalf of my noble friend Lord Browne, I thank the Minister—and, even more perhaps, his officials who did the hard work—for bringing so promptly to us the response on Rutland. Perhaps I should declare an interest as someone who is married to a member of the Institute of Physics.
I support the thrust of the amendment, but will the Minister, or perhaps the noble Lord, Lord Mawhinney, clarify whether it would cover all letters from MPs to constituents? We had a case locally where an MP attached to a letter a copy of a letter that they had received from another constituent—a row was going on between two constituents, as often happens. Would attaching that letter be similarly covered by privilege if it was then given, as it was, to the press? However, we undoubtedly support the intention of the amendment.
Baroness Hayter of Kentish Town
My Lords, the amendment in my name and that of my noble friend Lord Browne of Ladyton would extend the privilege set down in Clause 7(4) to local government. This is probably the existing intention of the clause; we can see no reason why it would not be. It is really simply for the avoidance of doubt that the suggested wording would give comfort to those local journalists who play rather an important role in propagating the work of local councils.
It would also be useful to seek some clarification from the Minister, to whom we gave some notice, about whether this clause covers the Welsh and Northern Ireland Assemblies—although the Bill does not cover Northern Ireland, reports of that Assembly could well appear in our newspapers and affect people here—and the Greater London Authority. I am fairly sure that it covers all of those and is about government in its broadest sense, but we want the wording to make that clear. I beg to move.
Lord McNally
My Lords, as an afterthought on my noble friend Lord Mawhinney’s approach to amendments, I can confirm that officials do wonderful work. However, his approach also reminds me of a story that the noble Lord, Lord Healey, told. When he was Minister of Defence, a man came to him with a solution to the Russian submarine menace: you boil the North Sea, and when the water has evaporated you can see where the submarines are on the seabed. Denis said to the man, “That’s fine, but how do I boil the North Sea?”. The man said, “Look, Mr Healey, I’ve had a good idea. Surely you and your officials should work out the practicalities”. That is just a passing thought.
I understand why the amendment has been tabled. I hope that my reply will clarify matters; I am not sure, given the presence of some very informed noble and learned friends. What I say at this Dispatch Box is of assistance to judges and courts when they make such decisions. I think so anyway, as a non-lawyer. Is it called Pepper v Hart? You see, I am learning on the job here.
Clause 7(4) extends the provision in paragraphs 9 and 10 of Schedule 1 to the Defamation Act 1996 on qualified privilege attaching to information published by legislatures, Governments and authorities exercising government functions. The changes ensure that the provisions also cover fair and accurate summaries of material and that the scope of the defence is extended to the relevant publications no matter where in the world they occur.
Amendment 39A amends the definition of governmental functions used in subsection (4) and in the 1996 Act to include a reference to local authorities as well as to police functions. We do not believe that this is necessary. We consider that local authorities are already covered by the reference to,
“any authority performing governmental functions”.
The Defamation Act 1952 covered information published,
“by or on behalf of any government department, officer of state, local authority, or chief officer of police”.
The 1996 Act was intended to extend this coverage. We are in no doubt that the reference to,
“any authority performing governmental functions”,
should be read as embracing the specific bodies referred to in the 1952 Act.
There is no indication that the absence of a specific reference to local authorities has caused any difficulty in practice. However, to take the specific point, we also believe that the devolved administrations would fall within the term “legislature”, which is used in the amendment to the 1996 Act made by subsection (4) of Clause 7 and elsewhere in relation to qualified privilege.
Lord Lester of Herne Hill
I am grateful to the deputy chairman. I am sorry to be unusual, but I normally am. Not only do I agree with what has been said but, in my mind, extending statutory qualified privilege in the schedule is one of the most useful things that the Bill does. We are dealing there with clearly prescribed situations, of which this is one, where, if the press gives a fair and accurate report, it will be protected, as will the public interest. The fact that this has been extended extremely broadly, as my Bill sought to do, whereas the 1996 Act did not do so, is a matter for congratulation.
Baroness Hayter of Kentish Town
I was going to use two words I now know I should not: they were simply “thank you”. I am not allowed to say that. I thank the Minister for his answer and beg leave to withdraw the amendment.
Baroness Hayter of Kentish Town
There is no answer to that. On the first point, on the face of it, it appears to be not a bad idea. I think that some of us feel that half the problem is that auditors are not sacked often enough. On the Financial Services Bill, we went through many of the things that they somehow failed to notice. I cannot resist saying that the people who would be most likely to sue are, of course, auditors. Auditors are firms. If we were to get our way about resisting non-natural persons having the same rights as natural persons, perhaps we could get around it that way. That is partly because I cannot resist reminding the Minister of that.
On conferences, my fellow members of the Joint Committee said that we felt that the peer-reviewed nature of the documentation or the speech is important. However, in many of the cases of scientific conferences where action has been taken, it has been taken by a corporation. That is not wholly so, but very frequently, so there may be more than one way to skin this cat. We would support the rightful emphasis on peer-review.
Lord McNally
In relation to Amendment 40, the Defamation Act 1996 gives a defence of qualified privilege to fair and accurate reports of proceedings at a general meeting of a UK public company and to copies of and extracts from various documents circulated to members of such a company.
Clause 7(7) extends this protection more widely to cover reports in relation to companies listed on recognised stock exchanges worldwide and to summaries of such material. This includes material circulated to members of a listed company which relates to the appointment, resignation, retirement or dismissal of directors of the company. The debate has reflected this. In drawing up this Bill, we have constantly challenged about where we are drawing the line and whether it is the right place to draw the line.
Amendment 40 would in addition extend qualified privilege to material relating to the appointment, resignation, retirement or dismissal of the company’s auditors. We do not consider that this would be appropriate. Extending privilege in this way would give protection to reports on contractual material between companies and their auditors such as issues of appointment and dismissal. We consider that this would be an inappropriate intrusion into how companies conduct their business affairs which could impact on business efficiency, and that it is preferable for the focus of Schedule 1 to continue to be on protecting fair and accurate reports of material which is publicly available.
Amendments 41 and 42 would alter the way in which the Bill extends qualified privilege—
Lord Phillips of Sudbury
My Lords, I, too, am extremely unhappy with the amendment. To take a literal point, why only a senior figure in public life? Why not a senior figure in the private sector, for example, where the consequences of the substance of a libel trial may be at least as important as for a senior figure in public life?
Above all, this provision—although I perfectly understand that my noble friend Lord Mawhinney did not advance it in any spirit adverse to the principles of our legal system—as my noble friend Lord Lester just said, would create a privileged class of person. It is not compliant with equality before the law. What is more, it trenches on the discretion of the judge, which I believe is the only reasonable way of limiting the right of privilege of trial by jury, given that that judge will be able to take into account all factors that seem to him or her relevant in that particular case. I am also bound to say that I cannot think of another provision in English law that discriminates in this way. I hope very much, although this was persuasively argued by my noble friend, that it will not be given credence by the Government.
Baroness Hayter of Kentish Town
My Lords, when coming back to this it is helpful to have been a member of the Joint Committee and heard the evidence. Before I address the amendment, given that it is the only one on the clause, it is worth saying how important the clause is; the removal of the presumption in favour of a jury is one of the most important parts of the whole Bill. I thought that we ought to get that on the record. While juries are very rarely used, the fact that they can be used at all is what has added to cost with regard to the extension of time in this. They drag out action, mostly because they deny the ability of the judge to take early views on issues that, quite properly, they feel must wait in case there is a jury trial, so they have not been able to take an early view until the doors of the court swing open. It was our view on the Joint Committee not only that this was important for the reduction of costs but that we hoped that judges would seize the opportunity for some really good case management, and tried to pull this stuff back as much as possible to get the time and therefore the money reduced. I do not think that we will ever go quite as far as the American system of case management, but I think that we were mentioning an urge to be as early and robust as possible.
The Joint Committee did not go as far as saying that there should be no jury trials, although some people suggested that. As the noble Lord, Lord Mawhinney, has said, it seemed that there were cases, such as a judge, where, for reasons of public confidence, a jury would need to be there to ensure that it was not one judging their own, if you like. Again, as much for public confidence as for anything else, that could also mean people who were involved in appointing judges, or people who were very senior in Government. In such cases an independent jury is there as much to give the public confidence in the hearing as for any great insight that the jury may bring.
The feeling of the Joint Committee, which I support, is that such cases should be few and far between. Most importantly, the Bill, and I think that this is the purpose of the amendment, should signify that we are talking about a very few cases in exceptional circumstances. This does not really relate to a TV star or a celebrity, in the word of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, or an athlete or the head of a business. We were looking more at those people who are involved in the broadest sense in the judicial and legislative process who, to the outside world, perhaps seem a bit cosy. Those are the sorts of cases that would be the exception.
We were looking for some indication to be given, because otherwise the fact that there could be a jury will have exactly the effect that has been suggested—possibly more cases, and people arguing that they should have a jury. We therefore want to try to shut that off as early as possible. A final decision still has to be made by a judge. Whether it is easier or harder for the judge to do that, it is important that they are given some guidance. Those in our Lordships’ House who have been judges know better than I whether it is easier or harder to do that without guidance. In a sense, guidance needs to be given to those who might be either claimants or defendants about whether they have a small or a large chance of getting a jury trial. They need to know that the circumstances are very limited.
We were partly searching for some indication to be given that we are talking about a very small number of cases. Cases where public confidence would almost demand that they were heard not simply by a jury should be few and far between. We look forward to the Minister’s response on this.
Lord McNally
My Lords, perhaps I should say at the outset that both my party and the coalition Government are more attached to jury trial than perhaps some of the comments about the quality of juries in this debate. Part of the coalition agreement is about our support for jury trial. However, we as a Government also accept the strong arguments made by the Joint Committee. The contributions from my noble friend Lord Mawhinney and the noble Baroness, Lady Hayter, put this amendment in context, but for me the extremely helpful intervention by the noble and learned Lord, Lord Brown, removes any reason for lengthening this debate. He explained clearly the dangers of going along the lines of the amendment. We believe that under the terms of Clause 11 as drafted, the courts will have a wide discretion in deciding whether jury trial is appropriate.
I take the point made by the noble Baroness, Lady Hayter, in her closing remarks. Part of what we are hoping is not to open the gates to more jury trials or to create any special class of person who should be put into jury trials. Much of what we are hoping for, as a result of this legislation and other actions taken, is much more robust case management by judges to make cases more easily and cheaply dealt with. However, I have to tell my noble friend that, although I understand his loyalty to the committee of which he is chair, the Government would not find his amendment acceptable.
“( ) Regulations may make provisions as to the procedure to be followed on the making of an application for an order under subsection (1).”
Baroness Hayter of Kentish Town
My Lords, I rise to move this amendment which is tabled in my name and that of my noble friend Lord Browne of Ladyton. He mentioned Clause 13 in an earlier debate about whether it is possible that we will need to broaden this for the reasons that were discussed in relation to booksellers.
In general, we are very pleased to see Clause 13 in the Bill. It was brought back by the Government on Report in the other place in response to an issue that our Labour friends raised in Committee there. They were rightly concerned that circumstances could arise in which a claimant had successfully brought an action against the author of defamatory material online but would be unable to secure the removal of that material. We welcome the new clause and the fact that the Government—as they have promised to do all the way through the Bill, so I should not be too surprised—have listened.
However, Amendment 51A adds what our amendment in the Commons also included, which is a call for regulations setting out the procedure for making a removal order. Again, it is part of the clarity which we believe is important for people to know how to apply to a court to make such an order. I know that all the lawyers are very familiar with these things, but ordinary claimants and defendants are less so.
This part of our original amendment was not addressed by the Minister in the Commons, although he said he would go away and think about the amendment generally, so we hope that the Minister will be able to enlighten us on his colleague’s reflections on this.
Amendment 51B is a belt-and-brace or clarification measure. It is designed to ensure that the removal of defamatory material from a website should not prevent the claimant being able to bring an action in defamation. I think it is clear, but clarification is of help. I beg to move.
Lord Ahmad of Wimbledon
My Lords, I thank the noble Baroness for introducing the amendments. I want to revert to the broadening of the scope which was talked about in Clause 13. Again, in the spirit of what has been said before by my noble friend Lord McNally, if that is required and desired, the Government are happy to contemplate it.
Amendment 51A envisages introducing a regulation-making power to set out the specific procedure to be followed in relation to the making of an application for an order under Clause 13(1). We do not believe that this amendment is necessary. Clause 13, as the noble Baroness acknowledged, was introduced in the other place to address the concern that the claimant who had successfully brought an action against the author of defamatory material online may be left in the position of being unable to secure removal of the material. This situation might arise as a result of the fact that an author may not always be in a position to remove the material and the new Clause 5 defence might prevent the website operator being required to do so. The clause, therefore, applies only where the claimant has brought proceedings against the author and is completely separate from the process under Clause 5. As drafted, it enables an order for removal of the material to be made during or shortly after the conclusion of those proceedings, or on a separate application under Part 23 of the Civil Procedure Rules. Part 23 governs applications for court orders and sets out in detail how the process should work, including rules in respect of how an application is to be made, where it should be filed, what information should be included and how it should comply with any relevant time limits, among other matters. To the extent that any supplementary provision might be required, it is the Government’s view that the existing power to make rules of court is entirely sufficient to enable such a provision to be made. A regulation-making power is therefore unnecessary and could perhaps add confusion about the relationship with Part 23 and possibly cast doubt on the scope and applicability of the existing power in the Civil Procedure Rules.
Amendment 51B provides that the removal of allegedly defamatory material from a website and the publication of an apology or correction should not prevent an action for damages being brought. It is not clear how this amendment fits specifically with Clause 13. As I have said, this clause is to address situations where a claimant brings a successful action against the author of defamatory material online but where the author may not be in a position to remove material which has been found to be defamatory from a website. Where the content is removed by website operators in other circumstances—for example, after following the Clause 5 process where the poster chooses not to engage or agrees to removal—there is nothing in either Clause 5 or Clause 13 which would prevent a claimant bringing a defamation action seeking damages against the poster. Clearly, there may be cases where the damage caused by a defamatory statement is so serious that simply having it removed from the website will not provide the claimant with sufficient remedy. In these cases, it is right that the claimant should be able to pursue an action against the poster, and if that is the intention behind this amendment, then we agree entirely with the principle and the sentiment. However, we do not believe this amendment works in conjunction with existing provisions in Clause 13 and, for the reasons I have given, such a provision is deemed unnecessary. Where a statement is removed by a website and the claimant still wishes to pursue an action against the author, there is nothing to prevent them doing so.
In light of the assurances I have given and coming back to the issue of the scope, which the noble Lord, Lord Browne of Ladyton, addressed earlier, I hope the noble Baroness will agree to withdraw the amendments.
Baroness Hayter of Kentish Town
I thank the Minister for that. He is right about Amendment 51B; that was the intention. His assurance that although defamatory material has been taken down there can still be an action for damages meets the point that we were trying to raise. On regulations and his reference to Civil Procedure Rules, the problem is the same. To expect an ordinary citizen to know that there are even such things as Civil Procedure Rules, let alone where to find them or what they say, is difficult. When the Government come to look at the guidance and other regulations attached to this, I urge them to look at whether the Civil Procedure Rules may be incorporated, even if they are word-for-word the same. Asking ordinary folk to go through lots of rules or even to know that they exist is a tall order. I will leave that thought with the Minister. I beg to withdraw the amendment.
Lord Mawhinney
My Lords, I feel, on a personal level, the need to start, not exactly by making an apology, but by recognising that I have been playing far more of a role in this Committee than my record over 30 years in Parliament would have caused anyone to anticipate, or than I would find comfortable. I have interpreted my responsibility as chairman of the Joint Committee in carrying through the work of the Joint Committee to this Committee so that when the government Bill did not cover what we recommended I could at least draw the issues to the attention of this Committee. In that sense and spirit I move my last amendment; I am probably as pleased to be at the end of the process as much as the rest of your Lordships are.
We were conscious that we were doing two things. Defamation seems to be one of those areas of law where the common law has prevailed. What has been codified has been minimal, and judges have been left to move the thing forward. The argument for that has been the great flexibility of common law. We got evidence that not many people understood the common law and that there was benefit for the citizenry to have more codification in this area than has traditionally been the case. Hence this final amendment, to set out some help: to ask the Government to help people to understand the codification, what is left of the common law, and what more might be usefully codified and then to undertake to report to Parliament annually, so that all of us can see that as what is agreed in Parliament is implemented, so the public benefit. I thank my colleagues for their patience and, for the last time, invite them to allow me to move the amendment.
Baroness Hayter of Kentish Town
My Lords, the Committee has heard from me before, as has the House at Second Reading, on my admiration for the concentration of the noble Lord, Lord Mawhinney, both on the ordinary citizen—particularly in Peterborough—who might get caught up in a libel case, whether as claimant or defendant, and also on the need of anyone involved to be able to read and understand the Bill after enactment without the need of lawyerly guidance, as he has just outlined. This is his final throw and we should support him.
We do not want the courts to so run away with interpretation and reinterpretation of the Act that a simple reading of it would give very little guide to the current law on defamation, so nuanced will it have become in learned judgments. I imagine that the noble Lord, Lord Mawhinney, would want Parliament to come back to this at that stage and say, “Look, the Act no longer represents the law; we should amend it”. We concur completely with his desire that untutored people should know their rights and their duties in regard to defamation and we hope that the Government can respond positively to the amendment.
In the mean time, as we close this part of our scrutiny of the Bill, I thank the Lords Deputy Chairmen who have guided us through procedures; the Bill team, who have assisted us throughout, both here and in other meetings, for their patience; the Ministers for their mostly good humour and occasional cheekiness; and our colleague, Sophie Davis, for keeping my noble friend Lord Browne and myself as close to the straight and narrow as was in her ability to do.
Lord Phillips of Sudbury
I associate myself and these Benches with the most recent remarks of the noble Baroness, Lady Hayter.
Defamation Bill
Baroness Hayter of Kentish Town Excerpts(11 years, 4 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Ahmad of Wimbledon
I would of course be happy to arrange a meeting. The benefit of being in the Moses Room is that your officials are right behind you, and I am sure that they have noted it as I have.
Baroness Hayter of Kentish Town
My Lords, as in December I wished the Committee a happy Christmas, maybe now that the Minister is back from Australia I can wish the Committee a happy new year. I thank the Minister not only for coming back from Australia to address us but for his response. I thank also everyone who has spoken, particularly my noble friend Lord Triesman and the noble Lords, Lord Phillips of Sudbury, Lord Lucas, Lord Faulks and Lord Mawhinney, for their support. I am grateful also for the contributions of the noble Lord, Lord Lester, and the noble Earl, Lord Erroll. I am sure that the noble Lord, Lord Mawhinney, does not need reassurance that his summary of the Joint Committee was, as always, spot on and symptomatic of what he did in that committee, focusing straight in on the victim, who often has no recourse to law.
There is a view that somehow the web is less serious than the printed word, but when I was learning my journalism, I was told, “Remember that today’s newspapers are tomorrow’s fish and chips wrappers”. Actually, some printed words are so ephemeral that the web is more serious rather than less serious.
I am still not quite sure what the Minister thinks is a website. Perhaps he will tell us in a moment whether Facebook is a website, whether a Tweet is a website and whether our Lords blog—which I recommend to you all—is a website, because it would be useful to know.
Given that we are in the slightly unusual position of having previously adjourned in the middle of an amendment and having the Hansard for part of it, perhaps I might quote what the noble Lord, Lord Phillips of Sudbury, said on 19 December. He said:
“The disparity of arms between claimant and defendant is nowhere more vivid than in relation to the web operators, many of which are huge multinational companies. They do not do this for fun—they are not like a village notice board. They do it for profits, and mighty big profits … They are the Goliath in the defamatory relationship … and … their impunity is not justified in terms of freedom of speech”.—[Official Report, 19/12/12; col. GC568.]
That is really the nub of what we are talking about. Along with the noble Lord, Lord Mawhinney, I cannot agree with the view of the noble Lord, Lord Allan of Hallam, that, with the web, we are talking just about private speech in a public space. We are talking about a publication, whether it arrives on your iPad, on a laptop or on something else. The issue of anonymity arises more frequently on a website than it does in a publication, which is perhaps why we concentrate on it, but if what the Government are suggesting—the 72 hours, the seven days and then going to court—is accepted, everyone who wants to defame will just go anonymous. Why should they not just go anonymous, knowing that they will basically be beyond the reach of the law?
Some of our amendments to which the Minister has referred are fairly uncontroversial. I would have thought that the “electronic platform” proposal is surely worthy of consideration. We may not have got it right, but I hope that what we have at the end is robust even if it is done by attached guidance. However, I will concentrate on two of these amendments.
Baroness Hayter of Kentish Town
My Lords, perhaps I may slightly correct the noble Viscount, Lord Colville of Culross, who I think said, “I am not a lawyer, I am just a journalist”. At the risk of upsetting a lot of other people in the Room, I do not think that he has that the right way round. The Bill is for you who write and we who read what you write or produce on television.
I thank the noble Lord, Lord Allan of Hallam, for clarifying that Facebook is indeed a website, which answers my earlier question. I use his words: we want swift removal of defamatory material with minimum collateral damage to lawful material. We may have to come back to that again at the end of the Bill’s proceedings. We can call it the Allan test and see whether we meet it.
I still have a problem with the question that my noble and learned friend, Lord Morris of Aberavon, raised earlier, which is about the distinction between lawful and defamatory. I found the evidence to the Joint Committee on Human Rights by Professor Phillipson on this compelling. Clearly, the whole of the committee did not, and I am not a member of the committee. The issues I want to raise are not legalistic but more about ethics and fairness, although I thank my colleagues, who have provided me with a little more legal background.
I want to go into a couple of cases which may be akin to what the noble Lord, Lord Faulks, mentioned on an earlier amendment about a teacher. I give two case studies. First, there is an Ofsted report on a school, and the local website reveals an affair between the head teacher and a parent, which is going on, but the evidence for it was found by Ofsted in its study, so it is a breach of privacy, because it was found by inspection and was then given without permission to the website. It then seems, under the privacy work being done by Leveson, that a case could be taken. Secondly, there is a separate case, where there is an Ofsted report on a school and a local website reveals an affair between a head teacher and a parent; however, it turns out not to be true.
If I have understood the difference with this higher hurdle, if what the noble Lord, Lord Lester, says is true, before the parent could take an action for defamation, they would have to know whether it was more than just untrue and bad for their reputation; they would also have to ask themselves, “Well now, was it in the public interest because the other party was a head teacher and therefore there could be a public issue?”. Or perhaps there is a defence because the claim was incredibly well researched and the head teacher was having an affair with a different parent, also called Smith, in the same street, and it was just a small technical error that caused the confusion, so it was responsible journalism. A hurdle is being asked for where that the parent, the claimant, would have to go and do some legal homework to try to think through what the defences were that the person who had written the untrue thing about them could put up against their action before they could actually start a claim—by which time their spouse would have left them. In fact, it would probably be better if the affair were true, because then they could get an action on privacy.
That brings me to a comment made by the noble Lord, Lord May. He seemed to be suggesting that as soon as you say something nasty about someone, it is defamatory. That is not my understanding. If I call him a rotten scientist, that is seriously defamatory, but if he calls me a rotten scientist, it is so patently true that it cannot be defamatory. I am not sure that some of the examples given would actually be defamatory; if you say that someone has been forging their research results and they have been, that is not defamatory because it is not untrue.
Lord May of Oxford
Many of the more celebrated cases in the libel tourism that has generated all this activity, such as the £1.5 million spent by the journal Nature in defending a plainly factual but defamatory statement about an Asian journal that was created simply to publish the papers of the sponsor, are of just that character. The statement were plain fact, but the action brought in this country by people outside it cost huge sums of money. The action involving Simon Singh was another example. What he was saying was plainly factual but was defamatory; it was intended to be so in every meaningful sense, and properly so. Somehow we keep losing sight of this in the legal elegances.
Baroness Hayter of Kentish Town
It has to be substantially true, actually; he had only to be a bit of a paedophile, had you had the information there.
The point that I am trying to make is that the person making the claim knows whether or not it is true. I know that I am a rotten scientist, and therefore to be able to make the claim I would have to try to find some evidence that I was a brilliant one, which might be a bit difficult. Asking someone to have to argue through the defences of the person against whom they want to take the action before they can start a case, if I have understood the amendment right, would create a higher hurdle for stuff on the web than for printed material, because the clause refers only to the web.
Lord Lester of Herne Hill
The noble Baroness has misunderstood. Clause 5 is not about whether you can bring a claim. It states:
“This section applies where an action for defamation is brought against the operator of a website”.
It is intended to allocate responsibility between the alleged victim and the website operator, and to decide when the website operator has some kind of duty to keep up because of free speech or to take down, and what information must be provided under the e-commerce directive regulations and under the Bill. It is not asking a whole lot of questions as some kind of new barrier. It is about a proper procedure balancing. I hope that that is clear.
Baroness Hayter of Kentish Town
That is clear, but it still seems to be a higher barrier to take action against an operator of a website than you would have against the editor of a newspaper. The amendment only covers operators of websites, unlike the rest of the Bill. According to Judge Eady,
“a person would need to know something of the strength or weakness of available defences”,
in order to know whether it was unlawful before going ahead. That seems a higher hurdle to ask a claimant to go through than if they were taking an action for something else. That may be what is wanted, but if so, we need to be very clear that this is a higher hurdle for a claimant in the case of operators of websites than for any other action for defamation. It seems to tilt the balance very much against the claimant being able to take any action in that case.
With regard to Amendment 27, which would add the list, the issue is the one that my noble friend Lord Browne raised at the beginning: whether this adds anything to Clause 5(6)(b), which states that, in taking an action, the complainant, in addition to giving their name, must set out,
“the statement concerned and explains why it is defamatory”.
That would go through points such as, “Well, it is untrue, it harms my reputation and it was published in a form that people could read”. Again, I wonder whether, having got rid of the long list that we had in Clause 4—because that was a box-ticking exercise, or feared to be one, about what was in the public interest—we are now doing exactly the reverse and trying to specify all the things that we have taken out of Clause 4. That seems to run counter to the idea of a very simple Bill, albeit that guidelines or regulations may go with it. Although there is nothing in the requirements that seems unacceptable, I am not sure that, having now made the other part so clear and simple, we want to put another list back in this part of the Bill.
Other noble Lords have discussed going to a Master, but in addition to the complications of that, and the costs, I also have worries about the timing. Again, in two or three weeks—I do not know how quick it would be—some things on the web will have gone around and been taken up. My major issue is whether the Committee is absolutely sure that it does want a different hurdle against website operators such that one has to go through all the defences that someone could have before being able to start an action. At the moment, we are not persuaded of that.
Lord Phillips of Sudbury
I am afraid that the noble Lord did misunderstand.
Baroness Hayter of Kentish Town
This is an interesting one, particularly in respect of the use of the word “unattributed”, as opposed to “anonymous”. It seems to signify that you are looking at attribution, which may be to a group or something like that, and that it is about trying to find out who was responsible for this without necessarily naming them; I mean that it is about method, not necessarily the actual name. We are interested in the Government’s response to this, because it clearly highlights an ongoing view that what we do not want from the Bill—any more than we want what the noble Lord, Lord Lester, is afraid of—is to give a signal that the more anonymous the better.
Lord McNally
My Lords, I am grateful for this debate. The more I listen to it, the more I realise that we are, consciously, going into unknown territory. As I said previously, we are taking a different approach from that we took 10 years ago with the Communications Bill, when the Government of the day, and Parliament as a whole, took the view that the internet should be left free for us to get the full benefits. Within the judgment of history that was probably the right thing to do. It allowed the massive growth of initiative and new companies and services, and the liberating effect I referred to for the individual citizen.
The most hopeful thing that I have heard today, because I respect his knowledge of this sector, is my noble friend Lord Allan’s comment that we should not follow a counsel of despair. That gives me great encouragement. There are, as has been said a number of times, those who say that the internet is beyond any single parliament or jurisdiction to control, and it is a global phenomenon that will just roam free. I do not believe that there are any man-made institutions which cannot be brought within the realm of governance, particularly democratic governance.
We face balances and different arguments. I have been in debates where the whistleblower has been the hero. The noble Lord, Lord May, has pointed out that, quite often when talking or trying to criticise, it is the powerful vested interests—not just the internet companies—that will try to close down criticism by intimidating the means of that information being disseminated. I am determined to try and get this right, but I am aware that we are going into areas where there are upsides and downsides to whatever we do.
I know of my noble friend Lord Phillips’s lifelong commitment to defending the rights of the little man, but I fear overlegislating in this area. We are just emerging from a debate in which it was suggested that our libel laws have become a bonanza for lawyers. I am worried that, in the concern to deal with some of the problems that have been raised, we might create another bonanza for lawyers. I sincerely believe that the contribution of lawyers to this debate has been extremely helpful, but I ask for time to study this debate in Hansard. As my noble friend Lord Phillips said, we have spent nearly five hours on this clause, and rightly so. It is the one in which we are going into untested territory. I want to see how it stands up to the criticisms that have come from both sides.
Amendment 30 goes much wider than issues of defamation, and is therefore beyond the scope of the Bill. It relates to broader issues concerning how the internet could and should be regulated. However, even if this new clause were to be limited only to defamatory material, it has been suggested that there has always been a tradition of being able to publish comment under pseudonyms or anonymously. My noble friend Lord Mawhinney has suggested that we should try to build some change in that culture, so that people are willing to put names to their criticism, and that that is a way forward. However, the practice is widespread. Like my noble friend Lord Lucas, I quite often go on to sites about hotels and restaurants where you get the most insulting comments about the levels of service, and sometimes they are very helpful when you are making your decision. It is also true that in the vast majority of cases it is entirely unproblematic; the hotels and restaurants live with the good and the bad, and leave it to common sense.
My noble friend Lord Mawhinney said that this was a probing amendment. It has produced strong arguments on both sides. I would like to study this issue. I also take the point about the consultation. The paper that noble Lords have received is not going to be very different from the consultation, but I understand the point made by the noble Lord, Lord Browne of Ladyton, that he would like to join the game as well. I am going to look at what we can do in that respect.
It is obvious that we have to get this into better shape by Report. We have only four or five months until the end of this parliamentary year and, at the pace that we are going, we will need every day of that. I will take this amendment away in the probing spirit in which it has been moved; indeed, I will take the whole debate away. I have already agreed bilateral discussions on specific issues of concern with a number of colleagues, but I will see if there is some other way of bringing together a fuller debate on the contents and direction of the guidance. In that light, I hope that my noble friend will agree to withdraw his amendment.