European Convention on Human Rights: 75th Anniversary

Lord Browne of Ladyton Excerpts

Tuesday 7th January 2025 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

I thank the noble Lord for that question. I remember dealing with those types of questions while I was an Opposition Minister in the Home Office. Whether Articles 8 and 10 are indeed breached by these cameras is a very live question; they are everywhere and they are being used in ways that we do not always understand. The noble Lord makes a good point.

[Lord Browne of Ladyton (Lab)]

My Lords, in the interest of cross-party amity—an ambition that I know my noble friend Lord Foulkes of Cumnock shares—it is important when celebrating something as significant as the ECHR’s founding to assign credit where it is due. Given that Churchill called the ECHR into being, David Maxwell Fyfe and Harold Macmillan were instrumental in its drafting, and Margaret Thatcher described our membership as “common sense”, will my noble friend the Minister strain every nerve to ensure that the Conservative Party is given due prominence and credit as we celebrate this anniversary?

[Lord Ponsonby of Shulbrede (Lab)]

I am happy to agree with what my noble friend said. I want to mention one other name, that of my former honourable friend Terry Davis MP, who has died, and whose funeral is at the end of this month. He was Secretary-General of the Council of Europe between 2004 and 2009.

Non-Consensual Sexually Explicit Images and Videos (Offences) Bill [HL]

Lord Browne of Ladyton Excerpts

2nd reading
Friday 13th December 2024 Lords Chamber

[Lord Browne of Ladyton (Lab)]

My Lords, it is pleasure to rise to support this Bill and to commend the diligence and clear-sighted determination that has led the noble Baroness, Lady Owen of Alderley Edge, to bring it to your Lordships’ House today. I add my congratulations and thanks to those from all parts of the House for her doing so.

We have already heard the eloquent and persuasive testimony as to why this survivor-led Bill is needed, how its provisions close gaps in legislation and why the time is now to engage with these challenges. In the context of the cross-government mission to halve violence against women and girls in a decade, my right honourable friend the Home Secretary has repeatedly signalled her determination—she is not alone in doing this, by the way, among Ministers—to arrest the rise in extreme misogyny.

At this point in my speech, I want to make the point that I most came here to make, and which draws on the speech made by my noble friend Lord Knight of Weymouth and the reference the noble Baroness made in her opening speech to a quote from the Home Secretary. On 3 December, in a statement about stalking, the Home Secretary said:

“Let us be clear—we will use every tool available to us to give more power to victims and take it away from the hands of their abusers”.


That is what this Bill does. This tool is available, and it is available now.

My noble friend the Minister is an invidious position in this debate. I suspect that he agrees with the provisions of this Bill, but that he has to say that this is not the right vehicle for them. I challenge him to act according to all the exemptions in this elegantly drafted piece of potential legislation, which says, “You can do that if you have a reasonable excuse”. That just means an excuse with a reason. What is the reason why the Government will not live up to those strongly supported words of the Home Secretary, who said that the Government will use “every tool available” to take power from abusers and give it to victims? There is an obligation, given the nature of this debate thus far, on the Government in this case not to say, “We agree with the principle but this is not the right vehicle”. Why is that the case? If my noble friend can convince me, I will wait until the right vehicle comes along. But in short, the right vehicle is here, and it will be ridiculous if we do not take it.

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[Lord Ponsonby of Shulbrede (Lab)]

I am very happy to confirm the point that my noble friend has raised. In fact, in my briefing, the words “in this Session” are underlined—so, yes, that is indeed the case.

[Lord Browne of Ladyton (Lab)]

Can I ask my noble friend a very simple question? Do the Government anticipate that any woman or girl will ever consent to the creation of what this legislation is aimed at—deepfake pornography to be used for revenge or for misogynistic reasons?

[Lord Ponsonby of Shulbrede (Lab)]

My noble friend raised that point with me the other day, and I checked it with advisers in the department. I think it would be unwise to assume that a woman would never, under any circumstances, consent to images being made.

Strategic Lawsuits Against Public Participation

Lord Browne of Ladyton Excerpts

Wednesday 24th July 2024 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

I thank the noble and learned Lord for that question. I am happy to give that undertaking. As I mentioned, there is a Council of Europe initiative going on, but clearly we should, and we will, look at the EU directive.

[Lord Browne of Ladyton (Lab)]

My Lords, I welcome my noble friend to the Dispatch Box. Recognising that the Government are planning a review, do they still agree that there is an urgent need for a stand-alone anti-SLAPP Bill, and that the lack of legislation will see SLAPP litigations continue? In the words of our right honourable friend the Foreign Secretary, as already mentioned, and as reported in the i newspaper on 3 June, they will continue effectively to stifle

“not just the rule of law and freedom of speech, but particularly … journalists doing their job to throw a spotlight and transparency on the most egregious behaviour of oligarchy, plutocracy, and very corrupt individuals doing bad things”.

Surely we need to stop that as soon as possible.

[Lord Ponsonby of Shulbrede (Lab)]

I agree with everything that my noble friend has said. I cannot make a commitment to a stand-alone Bill, but there is nevertheless an urgent need for legislation. My noble friend may be interested to know that the number of Russian litigants appearing in judgments from the Commercial Court has more than halved in the year to March 2024, falling to 27 from a record high of 58. We believe that that is a result of the successful UK sanctions regime taking effect.

Prison Capacity

Lord Browne of Ladyton Excerpts

Wednesday 24th July 2024 Lords Chamber

[Lord Timpson (Lab)]

I thank the right reverend Prelate. New prison places are important and we will build more prisons—prisons we are proud of. So far as the public narrative goes, I could not agree more, but I have confidence in the fact that 20 years ago, when I first started recruiting people from prison, no one thought it was a good idea. Now, every company I meet thinks it is a good idea. It proves that changing perception when it comes to offenders and prisons takes time. I hope to be in this role longer than many other people who have done my role, and to be able to get into the detail and try to get prisons we are proud of.

[Lord Browne of Ladyton (Lab)]

My Lords, I welcome the noble Lord, Lord Timpson, to the Dispatch Box as the Minister for Prisons, Parole and Probation. From the noise the House made earlier, I think I am not alone in thinking that he is probably the best man for the job. I suppose I should draw attention to my entry in the register of interests; I am a non-practising member of the Faculty of Advocates. In fact, I presently have another interest that I suppose is not yet registered, in that I have a pair of shoes in my local Timpson for repair.

Speaking to Channel 4 News earlier this year, my noble friend said that in his view only one-third of people in prison needed to be there. In order to emphasise that radically reducing the prison population is not impossible, he added that the Netherlands had halved its prison population while reducing crime. That contradicts what I think the noble and learned Lord, Lord Stewart of Dirleton, implied in what I can describe only as a plea in mitigation on behalf of the previous Government, which was that these two things were impossible. I know the Minister has studied this. How did the Netherlands manage to reduce crime and reduce the prison population by almost half?

[Lord Timpson (Lab)]

Before we look at any other countries and international comparisons, we need to fix the system we have first. Before we can do anything on reducing reoffending and having prisons we are proud of, we need to stabilise the system. It is our first priority. We need to fix it, and we need to fix the capacity so that we do not have this problem again. We need to enable our fantastic staff in our prisons and Probation Services to do what they want to do, to put the building blocks in place so people who go to prison have a much better chance of not going back.

European Court of Human Rights: Rule 39

Lord Browne of Ladyton Excerpts

Tuesday 6th June 2023 Lords Chamber

[Lord Bellamy (Con)]

On the latter point, I do not presume to cast any kind of judgment on or make any comparison between the United Kingdom and other contracting states. On the general point about acceptance in practice of the position of interim measures under the convention, there are two legal views.

[Lord Browne of Ladyton (Lab)]

My Lords, the context of this Question requires consideration of more than one case. Between 2020 and 2022, of the 161 applications for interim measures against the UK Government, only 12 were granted by the European Court of Human Rights. Secondly, the Minister’s responses thus far indicate that the Government no longer stand by Clause 24 of the Bill of Rights Bill, which, if enacted, requires courts to ignore interim measures. Until now, we have been told that that is an expression of the Government’s manifesto commitment to reform the Human Rights Act.

[Lord Bellamy (Con)]

My Lords, on the first aspect, if I may speak on behalf of the United Kingdom and all Governments, the Government have a commendable record on interim measures. I fully agree that you cannot judge the underlying legal and practical questions by just one case. On the issue of the Bill of Rights Bill, I think the focus should now be on Clause 53 of the Illegal Migration Bill, which I am sure we will discuss in great detail in Committee.

European Court of Human Rights

Lord Browne of Ladyton Excerpts

Monday 5th September 2022 Lords Chamber

[Lord Bellamy (Con)]

My Lords, I think it is fair to say that the Al-Skeini judgment has raised various problems, and part of the Bill that will shortly be before your Lordships is intended to deal with the question of the extraterritorial ambit of the convention.

[Lord Browne of Ladyton (Lab)]

My Lords, on the day of the publication of the Bill of Rights Bill, the Minister, writing for ConservativeHome, described it as a “modern framework” for human rights. In Clause 24(3), the Bill instructs judges not to have regard to any interim measure issued by the European Court of Human Rights. Would the Minister like to explain to President Zelensky how that is consistent with a modern framework when, in the case of Ukraine v Russia, he successfully gained an interim measure against Russia in the European Court of Human Rights to constrain it from using military force against civilians?

[Lord Bellamy (Con)]

The position of interim measures under the convention, and in the jurisprudence of the European Court and its rules of procedure, is a matter of great delicacy that at the moment is in effect being scrutinised in the Rwanda proceedings currently before the High Court in this country. I think it inappropriate to go further, but the provision in the Bill to which the noble Lord has referred is, in the Government’s view, entirely in accordance with the convention.

Libel and Defamation Cases: Cost to Public Funds

Lord Browne of Ladyton Excerpts

Monday 14th June 2021 Lords Chamber

[Lord Browne of Ladyton (Lab) [V]]

My Lords, as well as concern that English law is still being abused by threats and court action from powerful individuals against journalists and authors reporting on financial crime and corruption, there is credible evidence of women who have alleged abuse facing libel threats and actions from wealthy men as it has proved an effective way to shut women up. Does not the defence of legitimate debate, freedom of expression, safety of journalists, exposure of corruption and encouragement of women to report violence and abuse demand at least a review and reassessment of the measures that can be taken to prevent such actions by corrupt, violent and wealthy figures?

[Lord Wolfson of Tredegar (Con)]

My Lords, the noble Lord makes a very important point. There are, of course, the defences of truth and, in relation to what is said in court, there is of course absolute privilege. As the Minister who played a significant part in taking the Domestic Abuse Act through this House, I will certainly want to ensure that the protections it gave to women are not undermined by people exploiting the law of defamation.

Independent Review of Administrative Law Update

Lord Browne of Ladyton Excerpts

Monday 22nd March 2021 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful for my noble friend’s comments on the report. I think the consultation period is six weeks. As soon as we have the responses in, we will work at pace to bring back the Government’s response to that consultation.

On ouster clauses and the decision in Miller II, perhaps I should merely stick to what I have said so far. I do not really want to get dragged into an analysis of Miller II this evening.

[Lord Browne of Ladyton (Lab) [V]]

My Lords, does the Minister agree with the former head of the Government Legal Service, Sir Jonathan Jones, as quoted in the Law Society Gazette, that:

“The review doesn’t bear out the suggestion that there has been significant judicial overreach or a surge of cases in recent years, or that large numbers of unmeritorious cases are being allowed to proceed”?


If so, why does the Statement imply the opposite? Further, does he agree with Sir Jonathan that:

“The proposal that remedies might be available only prospectively will, at least, have to allow for exceptions”


if only to

“avoid the risk of serious injustice to claimants who have already suffered loss or damage”?

[Lord Wolfson of Tredegar (Con)]

My Lords, on the first point, I respectfully disagree with the comments of Sir Jonathan, whom I respect very much. In conclusion 7, particularly the first two sentences of that paragraph, it seems to me that the panel is clear that there are cases where the courts have gone beyond a supervisory approach.

On the question of potential injustice for those who have suffered, if one is going to have a suspended quashing order or a prospective remedy, as I have made clear, that is something that we are interested in consulting on. Indeed, I would welcome the noble Lord’s involvement in that consultation.

Defamation Bill

Lord Browne of Ladyton Excerpts

Tuesday 5th February 2013 Lords Chamber

[Lord Lester of Herne Hill]

My Lords, I move Amendment 4 essentially on behalf of the noble and learned Lord, Lord Lloyd of Berwick, who cannot be here this evening. In the light of what has just been said by the noble Baroness, Lady Hayter, I am hoping that when the Explanatory Notes to the Bill are brought up to date when the Bill becomes law, some of these points will be dealt with in them, which is an authoritative way of doing so.

There are two ways in which I can move this amendment: the long way and the short way. Since I detect in my noble friend Lord McNally’s previous reply not exactly bitterness but a sort of cynicism about certain attitudes, I shall do it the short way because I think we can cut the cackle on this by coming to the point that was troubling the noble and learned Lord, Lord Lloyd of Berwick, and Sir Brian Neill.

The amendment turns on a case called Telnikoff in the context of the honest opinion defence in Clause 3. In Telnikoff, the House of Lords decided that it was insufficient for a letter commenting on a newspaper article to refer to the article in order to establish that it was opinion, not fact. The letter had to be recognisable as opinion on its own rather than in the context of the article. My noble friend wrote to the noble and learned Lord, Lord Lloyd, on 9 January. I shall not repeat what he wrote, nor will I repeat what was said by the Minister. It did not satisfy the noble and learned Lord, which is why he wished to come back to it on Report.

I suggest that if the Minister in his reply can clear up any further confusion by making it clear that in the light of the Bill the Government do not regard Telnikoff as good law, so that if the same facts were to come before the courts under Clause 3(3), a reference to the original newspaper article on which the letter was commenting should be enough to establish the first and second conditions in Clause 3, that would be most helpful. When the noble and learned Lord, Lord Lloyd of Berwick, returns, if he does not find the answer sufficiently clear I will leave it to him to decide what to do at Third Reading. I beg to move.

[Lord Browne of Ladyton]

I support of this amendment and do so by adopting the argument put forward by the noble Lord, Lord Lester of Herne Hill, which, I think, in turn adopts what I described as the compelling argument put forward by the noble and learned Lord, Lord Lloyd of Berwick, in Grand Committee on 19 December at col. GC 522. I commend the recommendation of the noble Lord, Lord Lester, to the Minister.

In rereading the debate in Grand Committee, I am reminded that he offered a very similar opportunity to the Minister on that occasion, which the Minister scorned. I think that the noble and learned Lord, Lord Lloyd of Berwick, was awaiting the letter that became the letter of 9 January 2013. I recollect that in col. GC 528 in the same debate the noble Lord, Lord Ahmad, indicated that he might be able, in the same vein as was suggested by the noble Lord, Lord Lester, to give the comfort that the noble and learned Lord was seeking. I have to say—this should not surprise anybody—that we were all, I think, persuaded by the noble and learned Lord’s argument in relation to Telnikoff and why it should not still be considered to be the law in the same circumstances. I hope that the Minister will be able to respond to the opportunity that he has on this occasion to resolve this issue once and for all.

[Lord McNally]

My Lords, I indeed hope that this will be resolved once and for all. If my noble friend is going to withdraw under the temptation that the noble and learned Lord, Lord Lloyd, can bring this back at Third Reading, I would rather that he tested the opinion of the House. I will try to make as clear as possible on the record the Government’s opinion on this, but I cannot start trying to rerun 20 year-old legal battles.

Clause 3 provides for the honest opinion defence to be available if three conditions are met. Amendment 5 provides that the second condition in subsection (3)— that the statement complained of indicated, whether in general or specific terms, the basis of the opinion—is met if the defendant indicates the subject matter of a letter or article appearing in a newspaper or other publication and the date when it appeared.

On the basis of our discussions with the noble and learned Lord, Lord Lloyd, on whose behalf my noble friend is speaking this evening, we understand that the core issue underlying the amendment relates to what should be taken into account in determining whether the statement complained of is one of fact or opinion. We consider that this goes to the first condition in Clause 3(2)—that the statement complained of was one of opinion—rather than to the second condition in subsection (3).

At common law, when deciding whether a statement is one of fact or opinion, the court can look at the statement only in its immediate context. So if the statement appears in a news story or in a letter to an editor, the court can look only at the particular news story or the particular letter. The intention behind Amendment 5 is to change this so that the court can also look at other documents that provide a context for the statement.

This is a difficult issue, as is evidenced by the varying judicial opinions that were expressed when this was considered by the Court of Appeal and the House of Lords some 20 years ago in the case of Telnikoff v Matusevitch, to which my noble friend has referred. However, on balance, and with the greatest respect to the noble and learned Lord, Lord Lloyd of Berwick, the Government believe that the current law is in the right place. We consider that it should be clear from the document in which the statement appears that the author is expressing an opinion, otherwise a reader cannot know that there is a judgment to be made. They must be entitled to accept as a fact something that is presented as a fact. It follows from this that we cannot accept Amendment 5. Although the Bill abolishes the common law, we can see no reason why the courts would depart from the current approach.

As I have said, a defendant who satisfies the first condition that the statement is one of opinion must also satisfy the second condition that the statement must indicate, whether in general or specific terms, the basis of the opinion. Amendment 4 would replace the word “basis” with the words “subject matter”. The provisions in the Bill reflect the test approved by the Supreme Court in Spiller v Joseph that,

“the comment must explicitly or implicitly indicate, at least in general terms, the facts on which it is based”.

We consider that the word “basis” more accurately captures the essence of that test.

I hope that, on that basis, not only will the noble Lord withdraw this amendment, but that when the noble and learned Lord, Lord Lloyd of Berwick, returns to these shores and reads Hansard, he will accept that he has had a good run for his money but that this is where the Government’s view is and where it will remain.

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[Lord Phillips of Sudbury]

I wish to make a short point. I wholly agree with what my noble friend Lord Lester said about the confusing drafting of Clause 4(2). It is a most barbaric concoction and, coming in an age when we are all trying to make legislation as accessible as possible to other than legal experts, it really will not do. One particular aspect adds to its inadequacy; namely, reference to,

“an accurate and impartial account of a dispute to which the claimant was a party”.

I do not quite see why this clause should apply only to a dispute to which a claimant was a party. Why would it not apply to a matter in which the claimant had an interest? There may be no dispute there but it could be to do with a campaign where again there is no dispute. Apart from the generality, that is a bit of a drawback.

[Lord Browne of Ladyton]

My Lords, I have no amendment in this group but I wish to speak partly in support of Amendments 6 and 7. I am persuaded, I think, that Amendment 7 may bring more to the clarity of this legislation than Amendment 6. I also wish to express some concerns about Amendments 6 and 7, which require clarification. I hope that we will be able to get that clarification from the Minister and perhaps reflect during the rest of the process of this Bill on whether the total effect of Amendments 6 and 7 will be as is being argued.

I approach this from a slightly different perspective. My reading of the effect of these amendments is that they are designed to improve Clause 4, which I accept, but that they would remove the element of subjectivity in the test of whether the publication was in the public interest. The clause has been substantially amended and, in fact, it has been recast. That has been welcomed, particularly by the promoters of these amendments, as the noble Lord, Lord Taverne, made clear at the outset. This is a much improved clause but, as I understand it, the aim has been to move away from Reynolds but to reflect the case of Flood in the law.

Defamation Bill

Lord Browne of Ladyton Excerpts

Tuesday 5th February 2013 Lords Chamber

[Lord Hunt of Chesterton]

I thank the Minister for his remarks. I support the amendment. I just want to explain that there are important organisations in, for example, engineering and medicine. I trained as an engineer and had discussion with the Institution of Civil Engineers and the Institution of Mechanical Engineers. They have electronic journals, which are used for highly peer-reviewed discussion of important technical issues. Similarly, there are in medicine. The way that the Minister has explained the application of the law will be very useful for those organisations which currently have to spend significant time and money on legal clarification before they publish technical commentary on current issues. That will be useful for many professional bodies, including academic bodies. I warmly welcome the Minister’s remarks and the amendment.

[Lord Browne of Ladyton]

My Lords, Amendment 18 provides usual clarification and we support it. I pay tribute to my noble friend Lord Hunt for engaging in this issue in Grand Committee and for the way in which he has been so useful to your Lordships’ House and to his fellow experts and professionals, particularly in the engineering and medical disciplines.

Amendment 18 agreed.

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Moved by

[Lord Browne of Ladyton]

20: Clause 10, page 8, line 16, leave out from “court” to end of line 28 and insert—
“(a) is satisfied that it is not reasonably practicable for an action to be brought against the author, editor or publisher;(b) there is a prima facie case that the statement complained of is defamatory; and (c) is satisfied that such person did not know that the statement was defamatory until a claim to that effect was made and did not reasonably believe that there was a good defence to any action brought upon it.”

[Lord Browne of Ladyton]

My Lords, Amendment 20 would require a prima facie case to be made before a claim can be brought against a bookseller. As I had hoped would be the case for a similar amendment in Grand Committee, it allows the Minister to explain in more detail the difference between the 1996 law and the current Bill on the defence of innocent dissemination. I know that the Minister is familiar with my argument in relation to this amendment but if your Lordships will indulge me, despite the lateness of the hour, it is worth at least explaining again in outline what that argument is.

Section 1 of the Defamation Act 1996 was passed, as was explained by the then Lord Chancellor, the noble and learned Lord, Lord Mackay of Clashfern,

“to provide a modern equivalent of the common law defence of innocent dissemination”.—[Official Report, 2/4/96; col. 214.]

There is no express provision in the Act itself that abolishes the common-law defence of innocent dissemination, and it is clear from paragraph 2.6 of the consultation on the draft Bill, which was published in July 1995, entitled Reforming Defamation Law and Procedure, that, in introducing the Bill into Parliament, the Government intended that the Act, as the then Lord Chancellor said, would supersede, replace and modernise the existing law. The legislation that was eventually passed does not expressly provide for the abolition of the common-law defence, and it is argued that it should not be treated as having done so impliedly.

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[Lord McNally]

The noble Lord will know that we recently set up a Joint Committee on Parliamentary Privilege. To a certain extent, I am flying blind but I certainly think that his point should be drawn to the attention of that committee. I am a member of the Privileges Committee of this House and I will draw his remarks to that committee’s attention as well. It is a very difficult area. As he said, we have had one or two examples of honourable Members and noble Lords pushing the envelope as regards parliamentary privilege, which is one of the reasons why the Joint Committee was set up. I believe that this is the first example of a member of the public abusing it in that way. The noble Lord’s remarks certainly should be looked at by both committees.

As regards the eagle eye of the noble Lord, Lord Phillips, and possible contradictions, perhaps I may consult the parliamentary draftsmen on whether he is right. We still have time before Third Reading to iron out any wrinkles that he or others have spotted.

On the central issue raised by the noble Lord, Lord Browne, I will try again to see whether he is any more satisfied. As he explained, the amendment is at least in part an attempt to codify the defence of innocent dissemination. We explained in Committee, and previously in the other place, the Government’s concern about a provision such as this, which requires the court, as part of an assessment on jurisdiction, to assess at least to some extent the merits of the case before it. We think that such an approach has the potential to be unnecessarily confusing.

However, I will focus my response on the substantive issue at hand here—the defence of innocent dissemination. We have acknowledged the debate that exists over the terms of Section 1 of the 1996 Act and how this compares to the common law defence. During the Committee stage the noble Lord, Lord Browne, asked me to be “more courageous” in articulating how the Government saw Section 1 and the common law interrelating. When this House was considering what became Section 1 of the 1996 Act in Committee, my noble and learned friend Lord Mackay of Clashfern, the Lord Chancellor at the time, indicated that the Act would “supersede” and “replace and modernise” the existing law. There was debate at the time as to quite what the test for innocent dissemination was and whether Section 1 properly captured it. The Government of the day took the view that it did but the debate continues.

Under Section 1, a secondary publisher is at risk of liability once it is put on notice that a statement is defamatory. It is argued that, at common law, the secondary publisher retains the innocent dissemination defence provided it honestly and reasonably believes that a defence is available in respect of that publication. Carter-Ruck on Libel and Privacy describes the Section 1 defence as generally being more generous to secondary publishers. On this issue, however, it suggests that while the position is not without doubt, the better view is that the Section 1 defence is more easily lost than innocent dissemination at common law. Gatley on Libel and Slander takes the view that it is “possible” that the statutory defence is narrower than the common law in this respect.

The Government’s view is that it is right to say that Section 1 has, in effect, superseded the common law defence of innocent dissemination. As I have tried to illustrate, the position at common law prior to the 1996 Act was not as clear as certain lobby groups would like to suggest. We could have explored the option of extending the Section 1 defence but, as with Clause 5, the Government have taken the view that the better approach is to remove the secondary publisher from the process.

We believe that the approach that we have adopted in Clause 10 will provide effective additional protection for secondary publishers such as booksellers. It is consistent with the approach that we have taken elsewhere in the Bill in that the focus is on directing the claimant towards those who are actually responsible for the defamatory material. In the unlikely event that it is not reasonably practicable to sue the author, editor or publisher, Clause 10 allows a claimant to bring an action against a secondary publisher such as a bookseller. However, nothing in the clause would then prevent that bookseller from deploying any defences that may be available to him. We believe that this is a proportionate approach that is fair to all those concerned.

I will say in addition that in my discussions and evidence regarding the point that the noble Lord, Lord Browne, made about the intimidation of booksellers, the sending of a letter on high-quality, posh paper represents a kind of bullying. I hope that this clause and what I have said will give booksellers the protection to resist that and that they can use the protections in the Bill against such intimidation. I have tried to be as candid and clear as I can to the noble Lord about our approach to this. Whether it is courageous enough, I do not know.

[Lord Browne of Ladyton]

My Lords, I am grateful to the Minister for engaging with the spirit of the amendment, to the noble Lord, Lord Phillips, for engaging with its detail, and to my noble friend Lord Prescott for seeking the opportunity that it provided for him to exercise another issue. I hope he is satisfied that he has raised an important and serious issue. It is to be hoped that the broader consultation and debate on privilege that the Government are undertaking will deal with that among other things. We certainly should not have a situation where, by our own actions, we defeat the law that we pass.

On this occasion, I say with respect that the Minister has engaged more with the detail of the argument than he has done before. I think that he appreciates that. He and I have been partial in our quotation of the noble and learned Lord, Lord Mackay of Clashfern, from when, as Lord Chancellor, he introduced the 1996 Defamation Bill to this House. There are other quotations from the noble and learned Lord that I could play into the debate, which might get us back to the situation that we were in not so long ago in our deliberations on Report—quotations from the same judge that could be used to support two different sides of the argument. However, I have no intention of trying to replicate that interesting Alice in Wonderland environment that lawyers can sometimes create.

The Minister has probably been more courageous on this occasion. As regards the Booksellers Association, I accept what the noble Lord, Lord Phillips, said—that this provision applies to other secondary publishers, although I might say in passing that I am not sure that his interpretation of Amendment 17 is correct. However, we will perhaps return to that. I hope that booksellers will be satisfied. I have enormous sympathy for this group of people, who are at the mercy of a collision between two others. They are—if I may say so with respect to website operators—less culpable or less engaged in that process than perhaps website operators could be. There are some website operators whose very business plan encourages them to go to the margins and sometimes beyond the limits of what is allowed without remarks being deemed defamatory. Booksellers are not in that situation. They are one of many groups of people whom we are trying to improve and clarify the law to support.

I shall go back to those whom I have been engaged with to see whether they are satisfied, but, at the very least, we should strive with this Bill to put them in the position that they were in with the defence of innocent dissemination. I think that they will be comforted by the fact that the Minister has made it clear that it was his aim with this—I might say, although it does not sound like it—very welcome provision to codify that defence among other things. They are generally very pleased with the provision but would like it to be perfect—but then would not we all? In those circumstances, I beg leave to withdraw the amendment.

Amendment 20 withdrawn.

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[Lord Browne of Ladyton]

My Lords, I say with respect to the noble Lord, Lord Black, that I oppose the amendment for the simple reason that it is quite well established, certainly in my experience of the practice of the law, that if a particular element of a judgment which is under appeal is not to be effective, it is open to the party appealing to ask the court to suspend the application of that part pending the appeal. That is the way in which provisions of the law operate in many other areas of life, and I see no reason why this provision should be any different.

The noble Lord, Lord Black, has made it clear that he opposes the provision completely, but thinks that it should be stated explicitly that it can apply only on a final judgment, which means after the last appeal. However, I say with respect to him that publishers or those who hold the cards, as it were, should be in no better a position than anybody else who has a judgment against them pending appeal. I cannot for the life of me imagine that they would not be successful in suspending the application of that part, but it should be matter for the courts on an application for appeal rather than for this Bill.

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[Lord Ahmad of Wimbledon]

My Lords, Clause 13 currently enables the court to order the operator of a website to remove defamatory material in circumstances where a claimant successfully brings proceedings against the poster of defamatory material online. In Committee, the noble Lord, Lord Browne, raised the question specifically of whether this provision could be extended to cover situations where a claimant successfully brings an action against the publisher of offline material, but a secondary publisher refuses to stop distributing, selling or exhibiting material containing the defamatory statement. Clause 10 would prevent an action for defamation being brought against the secondary publisher if it was reasonably practicable to sue the primary publisher. While in the great majority of cases it is likely that secondary publishers would act responsibly and remove material when requested to do so, we consider it desirable to close any possible loophole. Amendment 22 is intended to capture any situation where the material in question is publicly disseminated by a secondary publisher. I beg to move the amendment.

[Lord Browne of Ladyton]

My Lords, for the reasons that the Minister spelt out, I strongly welcome this amendment. I thank the Minister for listening so carefully to the argument put before him in Committee and responding in this way.

[Lord Phillips of Sudbury]

My Lords, I am just nitpicking again but we might as well get this right. I think the amendment should start by saying that in line 4 an “(a)” should be inserted after the word “order”. There is no “(a)” to balance the “(b)” introduced by Amendment 22. As I say, that is nitpicking but I am sure I am right. We better get it right for Third Reading.

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Moved by

[Lord Browne of Ladyton]

23: After Clause 13, insert the following new Clause—
“Disapplication of the Legal Aid, Sentencing and Punishment of Offenders Act 2012
Sections 44 and 46 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 shall not apply in relation to civil actions for defamation or malicious falsehood.”

[Lord Browne of Ladyton]

My Lords, the effect of Amendment 23 would be to disapply the Legal Aid, Sentencing and Punishment of Offenders Act in relation to defamation claims. The roots of this debate go back some time.

The roots of this debate go back some time. The Minister will be very familiar with his contribution to the debate on Legal Aid, Sentencing and Punishment of Offenders Bill on 27 March 2012, when he gave an assurance to the House on the issue of the disapplication of LASPO, as it has become known, and that in relation to defamation claims it would be dealt with in the context of the Defamation Bill. Repeatedly, our party has sought to persuade the Government that the appropriate way in which to live up the assurance given by the Minister was simply to disapply the provisions of LASPO to defamation claims in the Defamation Bill. However, there have been a number of developments. Since we last tried unsuccessfully in the Grand Committee to persuade the Minister to do that, there has been a commencement provision of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which has a saving provision in it in relation to publication and privacy proceedings, defined in the commencement order as including defamation. So far, so good. However, there is still the possibility that a further commencement order may be made at some time in the future to commence the provisions of Sections 44 and 46 of the said Act in relation to publication and privacy proceedings.

The amendment provides the Minister with the opportunity to finish speculation about that possibility for ever by, in this provision, disapplying the provisions of that Act to defamation proceedings. If he cannot do that, second best would be to have an assurance that there will be no commencement order in relation to publication and privacy proceedings and defamation at some time in future. What would reinforce the argument for that are the recommendations of the Leveson report, which specifically deal with that issue. However, since we last met in Grand Committee and since the commencement order was passed, we have had another development—the passing in this House some five or six hours ago of Amendment 1 to this Bill, which not only deals with the issue of costs for defamation but deals with early dispute resolution, introducing arbitration proceedings. That has changed the environment in which this amendment was proposed. It is almost certain now that, whatever else happens, the issue of costs in defamation actions will have to be returned to again in the context of this Bill, either to modify the amended Bill as it presently stands or to do something else. I am not suggesting anything at the moment, having successfully stayed out of that debate thus far and hoped to keep myself in that position. I am minded at this stage to treat this to some degree as a marker, recognising that this issue will have to be debated, considered and legislated on in some fashion or other before the Bill can be completed. In the mean time, as this amendment is the only vehicle that I have to make this point, I beg to move.

[Lord McNally]

My Lords, I think that it was at an early stage of this Bill that I made it very clear that I was concerned with the matter of costs. The noble and learned Baroness, Lady Scotland, raised that in the debate on Clause 1 today. Everybody has recognised that this has been one of the key issues that have brought our libel laws into disrepute, and editors and journalists as well as ordinary citizens have long warned about the chilling effect of the current libel regime.

Although I do not object at all to the prodding from the noble Lord, Lord Browne, I hope he knows that in this respect he is pushing at an open door. He knows that the way that we have chosen to go was to ask the Civil Justice Council to look at how the Government can introduce a costs protection regime in defamation and privacy cases. The Master of the Rolls will report back to us with its suggestions by the end of March.

In the mean time, the Government have agreed that the provisions of the LASPO Act will not apply until a costs protection regime has been implemented. As the noble Lord indicated, the commencement order for this, which was laid on 18 January, includes a definition of “publication proceedings” and the cases to which the exemption will apply when Part 2 of the Act comes into force on 1 April. I should add that the Government’s definition goes wider than that proposed by Amendment 23.

Under our proposals, defamation and privacy cases will not feature as a permanent exemption from the LASPO Act, as this amendment seeks to apply. Instead, we will ensure that costs protection is in place so that anyone who needs to have security against adverse costs receives it. This will happen later in the year. This costs protection regime will apply to defendants as well as to claimants because defamation and privacy cases can affect academics, NGOs and ordinary people just as much as they can the super-rich and big businesses. The case for costs protection is even greater in these circumstances because an individual of modest means needs the assurance that if they have a good case that they need to pursue or defend, they will be able to do so without the risk of facing unaffordable costs.

The CJC will advise on the details by Easter. When the Government have properly considered the CJC’s proposals, the Civil Procedure Rules will be amended to introduce costs protection. As I say, we hope to be able to do that later in the year, but the current CFA and ATE arrangements will continue in place until then.

I once more reiterate to the House that I understand the concerns about access to justice in these cases. That is why we have taken the action I have outlined and it is why I am confident that we will be able to bring forward fully considered proposals which will ensure a proper and effective costs protection regime. I hope that on that basis the noble Lord will be prepared to withdraw this amendment.

[Lord Browne of Ladyton]

My Lords, I am grateful to the Minister for the clarity of his response. I think he knows that my view is that the undertaking in relation to costs protection is part of the answer but that this is a bigger problem than just costs protection. It is my ambition that the Government will be prepared to consider the disapplication of the provisions of the LASPO Act in all respects to the other parts of the challenges of defamation costs. Those costs are at the root of the problem of access to justice, which concerns the ability of people who do not otherwise have the resource to find solicitors who are prepared to take these sorts of actions on conditional fee arrangements and other arrangements. That should be reflected in the whole structure of costs.

I understand the effect of Amendment 1 well enough to know that this issue is not dead. I believe that we will need to return to this matter in some detail to deal with the way that the Bill has now been amended. I hope that the Government will apply their mind to that as quickly as possible and that we will see some movement. I am therefore confident that this is not the last word. It may be the Government’s last word but it will not be the last word on these issues. I shall continue to try to persuade the Minister of what I believe he already agrees with, although I have no desire to speak for him.

In the light of the fact that there will be further and probably better opportunities to deal with this issue in a more holistic fashion, I beg leave to withdraw the amendment at this stage.

Amendment 23 withdrawn.