Defamation Bill

Lord Brown of Eaton-under-Heywood Excerpts

Tuesday 15th January 2013 Grand Committee

[Lord Lucas]

My Lords, my noble friend has got his answer to Amendment 26 completely wrong, particularly so far as website operators are concerned. I do not care a fig about knowing whether a comment is defamatory; it is obvious that “The food was filthy” is defamatory. What I want to know is whether I can publish it or whether the restaurant says, “No such meal was served on that evening” or “We know this fellow from before and he has been completely unreasonable on other occasions” or gives us some reason that the comment is fair. It is absolutely crucial that Amendment 26 is accepted. Just to know that something is defamatory gives you no information and you can see that with your own eyes; it is obvious. What is not obvious is why it is unlawful. In order to take a reasonably robust attitude to standing between a complainant and the person who has made the posting, and who may well quite reasonably wish to be shy, not least because they think that they have sinned against some large corporation that will skin them in the courts if they are identified, I would want as a website operator, as I imagine other website operators do, too—certainly, those to whom I have talked do—to be in a position to stand behind something that we consider to be fair comment. We need to know why the complainant thinks that it is unlawful. We all know why it is defamatory.

[Lord Brown of Eaton-under-Heywood]

My Lords, it may be a response to the noble Lord, Lord Lucas, to say that while there is of course a distinction between what is defamatory and what is illegal, it is not necessarily for the complainant to dictate why it is illegal. Thought might perhaps be given to making a regulation under Clause 5(3)(c) that put on the operator who sought to invoke this defence the need to say why, notwithstanding that the statement was defamatory, it was none the less lawful to publish it. That might be a better way of achieving the balance than putting, as other noble Lords have recognised, the often financially onerous burden on the complainant to anticipate and meet in advance the several defences that may or may not be urged as justification for the publication.

[Lord Ahmad of Wimbledon]

The noble and learned Lord makes a valid point, which we shall certainly consider.

Defamation Bill

Lord Brown of Eaton-under-Heywood Excerpts

Wednesday 19th December 2012 Grand Committee

[Lord Browne of Ladyton]

Of course it does. I am sorry.

[Lord Brown of Eaton-under-Heywood]

My Lords, I come very late to this legislation, having devoted myself over recent years merely to deciding defamatory cases. I am enormously glad that the House is proposing to simplify and clarify the law and, in that respect, to raise the bar. However, noble Lords should recognise—as assuredly the courts will recognise, if and when they come to apply the clause—that it is implicit that the defence will apply even when it is assumed that the defamatory statement is wholly untrue, even when there is no possibility of it attracting the Clause 3 defence of honest opinion, and even when assuming that it is not privileged. Amendment 14 to Clause 4(1)(b) inserts a defence that,

“the defendant reasonably believed that publishing the statement complained of was in the public interest”,

notwithstanding that it was untrue, not the subject of honest opinion, and unprivileged.

I support Amendment 14, although not Amendment 23, because I value freedom of expression and freedom of speech so highly as to justify, on occasion, the destruction of an individual’s reputation without his having any opportunity whatever to vindicate himself. Noble Lords should recognise that that is the price exacted for the provision of a defence in the interest of freedom of speech.

There can be no question that in applying such a clause the court is bound to have regard to all the circumstances. Time and again it has been made perfectly plain that the Reynolds list is non-exhaustive. The noble and learned Lord, Lord Nicholls, said so, and in the recent Flood case in the Supreme Court, in which I was involved, not only did we say that in terms, but we brought into account various factors and considerations that did not feature in the Reynolds list.

Crime and Courts Bill [HL]

Lord Brown of Eaton-under-Heywood Excerpts

Tuesday 18th December 2012 Lords Chamber

[Baroness Jay of Paddington]

My Lords, I think I am the first non-lawyer to contribute, very briefly, to this debate. I see the Minister raising his hand and hope he will accept the point I will make.

As the House is aware, I am the chairman of your Lordships’ Select Committee on the Constitution and, as the noble Lord, Lord Pannick, said, have written to the Minister in that capacity about this amendment, simply to express the view that the committee, in its meeting last week, endorsed the amendment that has been proposed by the noble and learned Lord, Lord Phillips. I am very grateful to the Minister for writing back to me in a letter, with today’s date, which he concludes by saying:

“I can assure you that the Government remains committed to working with the Court to consider these issues”,

which he says are, of course, complex.

I was therefore a little disturbed to hear from the noble and learned Lord, Lord Phillips, in his introduction to the debate, that he felt that his discussions with the current president of the Supreme Court, the noble and learned Lord, Lord Neuberger, have run into the ground or “come to nothing”, which I think was the phrase he used. I would be grateful if the Minister, in replying, could perhaps elucidate, or expand a little more on that sentence that he has written in his reply to me, that the Government are committed to working with the court to achieve these ends.

[Lord Brown of Eaton-under-Heywood]

My Lords, I, too, feel compelled to say just a word in support of this amendment. I support it for the reasons already eloquently given by my noble and learned friend Lord Phillips of Worth Matravers and other noble Lords and have no intention of repeating those. I echo, too, his tribute to the present chief executive of the court, Jenny Rowe, who has worked tirelessly in setting up the court and progressing it over the three years that it has existed. I confirm—because I remember it all too well—what my noble and learned friend Lord Woolf said about the problem that the present wording of the legislation caused with regard to the chief executive’s role at an earlier stage in the court’s life.

On the critical point at issue, I respectfully suggest just this to your Lordships: constitutionally, it is no more appropriate for the Lord Chancellor to appoint the chief executive of the Supreme Court merely after consulting with the president of that court than it would be for the president of the Supreme Court, after merely consulting with the Lord Chancellor, to appoint the Permanent Secretary of the Ministry of Justice. The separation of powers means just that—the judiciary is not the Executive.

[Lord Beecham]

My Lords, I speak with diffidence as, I think, the ninth lawyer to speak in this debate—albeit from the junior branch of the profession—to add my support to the amendment moved by the noble and learned Lord, Lord Phillips. For the avoidance of doubt, I should say that my noble and learned friend Lord Falconer, who is not in his place tonight, would have supported this amendment, were he here. He has made that very clear. My noble and learned friend Lord Goldsmith is right to say that the legislation under which the present situation obtains was imperfect. It is now an opportunity for the House and, I hope, the other place, to correct what was a mistake—forgivable, but nevertheless a mistake. The independence of the judiciary, particularly that of the Supreme Court, must be at the heart of our judicial system. It is timely that we are discussing this amendment tonight, because in the House of Commons today the Justice and Security Bill is being debated. The role of the judiciary in relation to certain proceedings, which we have debated at length in your Lordships’ House, is very much part of those discussions. In addition, there are proposals in the air around judicial review and, again, the role of the judiciary in a particularly important and sensitive area of law.

Perception counts for a good deal in these matters. I entirely endorse the views of all but one of the noble Lords who have spoken tonight, that it is important to reinforce the independence of the judiciary. That independence has not in substance been threatened over the past few years, but there is always a risk that at some point it might be, and that in any event it might be perceived to be an issue on the part of the public. I do not know whether the noble and learned Lord will seek to test the opinion of the House if the Minister cannot provide a clear, unequivocal response to the suggestion here. Frankly, I cannot think why it should take any time at all for there to be discussions about the issue, which seems to me perfectly straightforward. If the noble and learned Lord seeks to test the opinion of the House, again, I will invite my colleagues to support him through the Lobbies.