Strategic Lawsuits Against Public Participation
Lord Browne of Ladyton Excerpts(4 months ago)
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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(4 months ago)
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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(1 year, 5 months ago)
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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(2 years, 2 months ago)
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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(3 years, 5 months ago)
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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(3 years, 8 months ago)
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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(11 years, 9 months ago)
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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.
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(11 years, 9 months ago)
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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.
“(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.
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.
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.
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.
“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.
Defamation Bill
Lord Browne of Ladyton Excerpts(11 years, 10 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
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 Browne of Ladyton
I am grateful to the Minister for giving away and apologise to Members of the Committee since I did not take part in the debate on this amendment. It occurred to me as he was speaking, and I draw his attention to the provisions of his own Bill, that the place where he seeks to draw the line and the restriction that he seeks to maintain may well already be overtaken by the provisions of new sub-paragraph (2)(a) which subsection (7) seeks to add to the schedule. I cannot think of any circumstances where the kind of document that the Minister is talking about in such a meeting would not be circulated to the members of the company with the authority of the board of directors of the company. That information will already be privileged as far as I can see. I may be wrong, but it seems to me that the Minister’s concern about revealing private commercial business of this nature is already overtaken by the provisions which he seeks to put in the Bill.
Lord McNally
I doubt that. We are moving the extra line to where a company has made a decision to change its auditors, which will be reported to the members of the company. There may be a number of reasons for that, but the report will be suitable for the annual general meeting, and other issues, personal or related to performance, may be covered by it. As I have said, in a number of these areas, we are drawing lines. Where there is a relationship between a company and its auditors, I just wonder whether it would be entirely conducive to good working relations between them if a reason for dismissal which was extremely damaging to the auditors was privileged in this way.
Lord Browne of Ladyton
In the interests of clarity, I am not very pleased with how I put the argument earlier. I can put it much more simply. With respect to the noble Lord, Lord Phillips of Sudbury, I think that his amendment is unnecessary. The circumstances that he envisages in this sort of environment are already covered by the provisions of the government amendment that we all support. I cannot imagine that what he seeks to allow to be reported and to attract privilege would be circulated other than with the authority of the directors to the members of the company. I think that it is unnecessary but it may be an issue that needs to be thought about. I am concerned that perhaps in telling the Committee the line that has been adopted and to hold the line at a particular point, the Minister may already have crossed that line in any event by these provisions.
Lord McNally
I will reflect on that but I am also very concerned and do not want to enter a field regarding the professional relationship between auditors—or, perhaps I may respectfully suggest, lawyers—and companies, where there is a barn door left open. I understand, as indicated by the noble Lord, Lord Browne, that the intention of the proposal is to give protection. I am willing to reflect on whether where we have drawn the line is exactly right, and I will listen to expert opinion in this Committee. As a layman, I also feel a slight tingle between the shoulder blades about where we are going in terms of the relationship of professions such as auditors and lawyers with their clients. I, too, would like advice on these matters.
“(a) a statement is published to the public (“the first publication”); and(b) there is subsequently published (whether or not to the public) that statement or a statement which is substantially the same.”
Lord Browne of Ladyton
My Lords, the amendment, which is in my name and that of my noble friend Lady Hayter, would apply the single publication rule to the subsequent publication of the same material by any publisher rather than by the same publisher. As it appears to be convenient to the Committee, I shall speak also to Amendments 47A and 47B which stand in our joint names, too, and may make some passing reference to the amendments tabled by the noble Lord, Lord Phillips of Sudbury. I intend to speak to the amendments comparatively briefly, because this issue was rehearsed in Committee in the House of Commons, but I am seeking further information, if possible, from the Government.
Under the current law as I understand it, each publication of defamatory material gives rise to a separate cause of action which is subject to its own limitation period. That as I understand it, although I have no experience of it, is known as the multiple publication rule. Clause 8, which I support, very sensibly introduces a single publication rule to prevent an action being brought in relation to publication of the same material by the same publisher after a one-year limitation period which will apply from the date of first publication. I have no intention of going through the effect of the six subsections of this clause. They are there for Members of the Committee to read for themselves.
Lord Browne of Ladyton
My Lords, I am grateful to noble Lords for participating in this short debate on the amendments, and I am grateful to the Minister for his response, even if it was substantially predictable. I am particularly grateful for what I might call the neutral support of the noble Lord, Lord Phillips, but why should I expect anything more since that is what I give his amendments? I am grateful to the noble Lord, Lord Marks of Henley-on-Thames, for his overt support of Amendment 44A, and grateful, too, to the noble and learned Lord, Lord Brown, for the benefit of his wisdom. I have to say that I see the strength of his argument to a degree and I am sure that it was reflected in the words of the Minister. I venture to suggest, however, that if that is the nature of his thinking on this issue, if we come back to it in the future, he might apply that logic to Amendment 47A and find that he should be supporting it even if it could be better and more elegantly drafted.
I will look very carefully at what the noble Lord has had to say. I am interested in a thread of consistency running through the way in which we legislate. I am tempted to say that the answer to the example that he gave of republication in a different town as a justification for restricting this single publication rule to the same person lies in Clause 8(4). That could be said to be “materially different”. I say with respect to the Minister that it is not a complete answer. From the point of arguing against myself, I prefer the argument of the noble and learned Lord, Lord Brown, but that may already be accommodated in the potential of subsection (4).
In trying to tease from the Government further specification on “materially different”, it is no answer to say that it will be left entirely to the courts, when subsection (5) seeks to do that in part. There are two examples of what would be relevant to the court in determining whether the manner of the subsequent publication is materially different. I appreciate that it is not intended to be an exhaustive list; we could go round in circles debating it, but it is no answer to suggest that it is a matter entirely for the court when the Government themselves seek to specify it in the clause. We should either put in some or none—we will go back to our earlier debates. I am seeking consistency. I am concerned that I may stir the noble Lord, Lord Lester, and may add time to this. I am trying to do this quickly and will go away and reflect on it. I beg leave to withdraw the amendment.
Lord Browne of Ladyton
The amendment, standing in my name and that of my noble friend Lady Hayter, would confine Clause 10 to actions for damages only. I say at the outset that I support Clause 10. It is a significant improvement in the law, and that position is supported by those who practice commercial activities. The Booksellers Association, to which I will refer later, is a strong supporter of Clause 10, but it does not think that it goes far enough for reasons I am about to give in support of the amendment.
Amendment 50B would restrict Clause 10 to action for damages only. It would provide that a court does not have jurisdiction to hear and determine an action for damages,
“for defamation brought against a person who was not the author, editor or publisher of the statement complained of unless the court is satisfied that it is not reasonably practicable for an action to be brought against the author, editor or publisher”.
The intention is that when the primary publisher cannot be found, the claimant would still be able to sue the secondary publisher for an injunction of some description, a take-down order or for a book to be removed, even if they were not able to pursue an action for damages.
I am in the fortunate position of being familiar with the Government’s position on this amendment because it was moved in the House of Commons. The Government thought that it could lead to a situation that even when it is reasonably practicable for an action to be brought, the secondary publisher would end up having to defend the claim, although they would not be liable for damages if the claimant were successful. Nevertheless, the Government said that they would give further consideration to this issue. The response from that further consideration may well be Clause 13, which was not there at the time of that debate. I cannot anticipate fully what the Minister will say, but I have an expectation that he may refer to Clause 13.
Clause 13 merely provides in the context of a judgment that the court may order a statement to be taken down. It would be more appropriate to make it clear that claimants retain the right to bring an action when the remedy sought is not damages. Again, this could perhaps be better drafted to achieve that, and I am content to discuss that. If the Committee can be persuaded to support the principle of this argument, I urge the Government to take the argument seriously.
For ease of dealing with these three amendments that I have grouped together, Amendment 50D is a consequential amendment on Amendment 50B and provides that nothing in Clause 10,
“prevents a court from granting any injunction or order requiring a person to cease publishing a defamatory statement”.
It may be unnecessary, but it is coupled with it. Again, I have the benefit that the Minister who dealt with this debate in the House of Commons indicated that further consideration would be given to this issue, too, but it may be that the further consideration has resulted in Clause 13, at least in part.
Amendment 50C is an inelegant amendment. It seeks to do something that I do not think that I have ever seen before in legislation, and it can be criticised for that reason. However, because of the nature of these proceedings—we are encouraged by the noble Lord, Lord McNally, to treat them as some form of seminar discussion—I have retabled this amendment. It mixes up the substance of the issue with the issue of jurisdiction. I understand that, and I am happy to take on the chin that criticism of it. However, if we move towards each other in relation to this, or if the Minister can give a better explanation than there has been otherwise about a specific aspect of this argument, and we go beyond this in agreement, I am sure that this amendment can be redrafted in another way.
At the heart of this amendment is a belief on the part of the Booksellers Association and those who advise it—indeed, there may be people in your Lordships’ Committee who have advised it at one time or other; happily, I have not—that the innocent dissemination defence, which existed previous to the 1996 Act, as a matter of fact and practice is now repealed effectively, although perhaps that was not the Government’s intention. The debate in the other place was interesting because the then Minister who dealt with it conceded in the debate that there were different views on the effect of Section 1 of the Defamation Act 1996 as to whether the defence that it provided was weaker than or as good as the innocent dissemination defence. With this short debate that I hope we will have, I seek to elicit from the Government a clarification of their position as to whether there is a difference between Section 1 of the 1996 Act and the effect of the Bill, taken together, on the one hand and the pre-1996 defence of innocent dissemination on the other, and why the Government believe that this combination that we are now presenting to secondary publishers is better than what they had before 1996.
The amendment requires that a prima facie case should exist. Although Section 1 of the Defamation Act 1996 is available to booksellers as a defence, the Booksellers Association contends that it is weaker than a common law defence of innocent dissemination, which that section replaced. As I have said before in Committee, the Minister who then dealt with it substantially conceded that point but only went as far as to say that there were differing views on the section as to whether one was weaker than the other and did not express what the Government’s position was. I think that there is at least a reasonable expectation on the part of secondary publishers that the Government should nail their colours to the mast and say what they are creating here by this process.
The Booksellers Association also contends that under Section 1, booksellers and other secondary publishers lose the protection if they know or have reason to believe that a publication contains any defamatory statement, whereas under the previous defence of innocent dissemination a defence would have existed if the bookseller had a reasonable belief that the alleged defamatory material was not libellous, having in most circumstances received assurances from lawyers that one of the defences applied.
Lord Ahmad of Wimbledon
My Lords, I will take all three amendments together as they have been grouped. In doing so, I will refer first to Amendments 50B and 50D. They seek to provide that Clause 10 should prevent an action for damages for defamation being brought against a person who was not the author, editor or publisher of the statement complained of unless the court is satisfied that it is not reasonably practicable for an action to be brought against the author, editor or publisher, but should not prevent a court from granting any injunction or order requiring a person to cease publishing a defamatory statement.
As the noble Lord, Lord Browne, indicated, the amendments were originally tabled in Committee in the other place by the honourable Member for Newcastle-under-Lyme. His concern was that circumstances could arise where a claimant who had successfully brought an action against the author of defamatory material on a website was left in the position of being unable to secure removal of the given material. This situation might arise as a result of the fact that an author may not always be in a position to remove material which has been found to be defamatory from a website, and the new defence in Clause 5—together with the more general protection provided to secondary publishers in Clause 10—might prevent the website operator from being required to do so. As the noble Lord acknowledged, it was precisely for this reason that the Government introduced Clause 13 into the Bill on Report in the other place.
In an offline context where a successful action is brought against an author, editor or publisher and a secondary publisher is made aware of the successful action, we believe that in the great majority of cases the secondary publisher would act responsibly and remove the defamatory material from sale.
However, there are issues that still appear pending and this point has been reiterated by my noble friend Lord McNally and made by me as well. We are listening in great detail to the debates and discussions in Committee. As has been illustrated from the Government’s perspective in the other place, appropriate clauses and amendments are being introduced to refine this particular Bill if and when they are needed.
Amendment 50C is identical to the one tabled on Report in the other place. It was said then that it was in part an attempt to codify the defence of innocent dissemination. As the Government explained then, Clause 10 is about jurisdiction. To require the court, as part of an assessment on jurisdiction, to assess the merits of the case before it in the manner proposed would be highly unusual and potentially confusing. Furthermore, it would involve additional evidence and expense, which would be wasted in the event that it was held that it was reasonably practicable for the claimant to pursue the primary publisher. Such arguments are properly pursued once it is established that the court indeed has jurisdiction. Subsection (1)(c) would also put the onus on the claimant to show what was in the knowledge of the secondary publisher, which, as well as being practically very difficult, would be a significant shift in the current law.
The noble Lord, Lord Browne, drew to the Committee’s attention the fact that there is a debate over the terms of Section 1 of the 1996 Act—the noble Lord, Lord Lester, referred to this as well—and how that compares to the common-law defence. A question was raised about the Government’s position. The Government believe that it is preferable to adopt the approach in Clause 10 of directing claimants towards those who are actually responsible for defamatory material. This reflects the approach that we have taken elsewhere in the Bill. 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 available to him them.
We believe that this approach strikes a fair balance that provides substantial protection for secondary publishers while not denying claimants a means of redress where this is deemed appropriate. I hope that on that basis of these explanations, the noble Lord will agree to withdraw his amendment.
Lord Browne of Ladyton
My Lords, I am grateful to the noble Lord, Lord Lester of Herne Hill, for his intervention and for indicating the value of at least one of my amendments in a broader, international sense. I think that that will help to concentrate our minds on the value of looking with some care at the provisions of Clause 10. I am grateful to the noble Lord, Lord Mawhinney, for his reminder that we should be seeking a direction of travel away from what may inadvertently have been created by the effect of Section 1 of the 1996 Act on the common-law defence that existed.
I am grateful, too, to the Minister, although I have to say that I am disappointed in his articulation of the Government’s position. There is a lack of courage on their part if, even in these circumstances where we are all agreed on the direction of travel, they are not willing to say that the law in relation to secondary publishers is moving in the direction of undermining the chilling effect of the behaviour of lawyers, who often act for very wealthy clients, intimidating small people from pursuing business because to some degree it involves an expression of free speech.
The appropriate response to this short debate is to indicate to the Minister that I will go away and think about this again. With regard to the first of our amendments, Amendment 50B, after this debate I am minded to consider whether Section 13 should be broader in scope. That may be the answer to the problem and a more appropriate way of dealing with it—not to restrict it only to secondary publishers and the web but to seek that it be broader in scope. That might be a simpler way of addressing at least part of the problem.
On the pre-1996 common-law position being better and less chilling than the present situation, even when improved by Clause 10, I am not sure that I will abandon my attempt to persuade the Government that something must be done. I now have the difficult job of solving how one can do that without challenging the court to deal with jurisdiction and the substance of the case at the same time. My limited experience of practising before the courts—limited by being elected to the House of Commons, although it was 20 years’ experience—suggested that once one started to make arguments about preliminary issues, one often got far into the substance of the case to do. In making arguments before the court, it was quite difficult to do the sort of thing that we suggest is possible here, by keeping these two issues separate. Apart from anything else, you often do not understand the arguments until you understand the facts and where the credible argument likely lies in a set of circumstances well enough. Anyway, never mind that.
I will go away and think about this again. We may have room for some progress in extending the scope of Clause 13. I am not sure that I will ever persuade the Government to move beyond, with all due respect, a slightly timid position on innocent dissemination, but we may have to return to this issue on Report. In the mean time, I beg leave to withdraw the amendment.
“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, malicious falsehood, breach of confidence, privacy or publication proceedings.”
Lord Browne of Ladyton
My Lords, Amendment 51C would disapply the LASPO Act in relation to defamation proceedings and Amendment 51D would apply one-way costs shifting to defamation proceedings. Both the amendments are probing amendments. I have some sympathy with the Minister in being prodded on this issue again. He may have thought that he had seen it off with his letter of 10 December and the assurances that he has repeatedly given us, but I am afraid that I shall invite him to discuss again costs in relation to defamation.
As noble Lords will be aware, and as I think the Minister is acutely aware, this issue was addressed during the passage of the LASPO Bill, when calls were made to disapply it in relation to defamation and privacy proceedings. Assurances were given by the Minister that this would be addressed in the Defamation Bill. I do not seek to keep him specifically to that assurance, because I suppose that, on one view, a substantial amount of water has passed under the bridge since that debate and many other things are going on. Whatever intention other noble Lords may have in the debate that will ensue on this, I have no intention of transgressing into the debate about the Leveson recommendations and their consideration in tri-party talks; I have managed until now not to mention “Leveson” anywhere in your Lordships’ House, and I had intended to keep it that way.
Throughout the passage of this Bill, we have had further assurances that something will be done to address the cost of defamation proceedings, and the Government recently gave a commitment that LASPO would not apply to defamation until they had resolved the situation in relation to costs. That stay of execution, as it were, is very welcome. Our amendments are, however, designed to elicit further information from the Government as to the timing of these proposals and what they will consist of, to the extent that the Minister is in a position to share that information with me.
I want to make one very specific point to the Minister which I hope he will address when he responds. I have before me his letter of 10 December 2012, which was very welcome and very helpful in covering a number of issues before the Committee convened to consider this Bill in detail. Under the heading “Cost Protection in Defamation and Privacy cases” it sets out that,
“the Government is keen to provide some form of cost protection so as not unduly to damage the interests of impecunious parties. The Government has asked the Civil Justice Council (an independent advisory body, chaired by the Master of the Rolls) to advise on this by the end of March 2013”.
So I realise that we will have to be patient until the end of March 2013 to see what the council under the chairmanship of the Master of the Rolls advises. In order to instruct those deliberations, we have the benefit of annexe A to the letter, which sets out the terms of reference of the Civil Justice Council’s remit.
I am limited in my understanding of all of this, never having practised in this jurisdiction, but I understand that cost protection is designed to protect a party from the liability to pay the other side’s costs if their case fails. If my case fails, cost protection is designed to protect me from the liability to pay costs, or to reduce my liability. That addresses half of the problem. The serious part of the problem is how does one deal with the impecunious client who does not have the ability to institute proceedings in the first place if LASPO and the Jackson reforms are applied to defamation? How does one encourage lawyers to take on cases on some form of contingency basis, in the light of the application of LASPO and the Jackson reforms? The Government may believe that that is dealt with through the cost protection order process, but I am not satisfied that it is. Will the Minister address that issue? I beg to move.
Lord Phillips of Sudbury
My Lords, I cannot clearly say whether I do or do not support these two amendments as they have all sorts of ramifications and implications. What is common ground between the noble Lord, Lord Browne, and the noble Baroness, Lady Hayter, is that the position of not only the impecunious would-be litigant, but that of the not-well-off would-be litigant in relation to defamation, whether as plaintiff or defendant, is astonishingly unsatisfactory. It makes this branch of law, more than any other, one in which equality before the law is frankly mythical, unless one finds an extraordinarily public-spirited solicitor who will in effect act for nothing if his client’s case collapses. Even then, there would be costs possibilities for the poor litigant, whether as defendant or plaintiff, in that he or she may end up having to pay the other side’s costs. All I am doing is sympathising with my noble friend Lord McNally in having to answer these two issues. At the moment, there is no ready answer, although the idea of changing the recently passed LASPO legislation for defamation has its own problems if one believes, as I do, that the methods of paying lawyers under the conditional or contingency fee system have led to great problems of public interest. That is a rather ineffectual contribution to the debate on these two amendments.
Lord Browne of Ladyton
My Lords, the Minister shares with me the view that this is a fiendishly complicated challenge. I welcome his reluctance to embroil us in a debate on the recommendations of Lord Justice Leveson’s report but I hope that before Parliament’s deliberations on the Defamation Bill are concluded, we will know the recommendations of the Civil Justice Council and have some clarity on the way forward in relation to Lord Justice Leveson’s report and, in particular, his recommendations about costs in defamation actions. We will then be at least in a position of knowing that when the seal is put on the Defamation Act—which broadly we all support and consider as progress in the development of the law—we will not have to revisit the issue quickly thereafter. That would be nonsensical.
I know that sometimes it is not possible get all stars aligned but surely it must be possible with draft legislation of this nature, where there is such substantial agreement, for parties to timetable the proceedings of Parliament in such a way that we maximise the possibility of coherence and consistency rather than minimise it. I hope that we do not get caught up in the demands of people who are timetabling other business, the usual channels and so on, and are railroaded into a timescale on this Bill which makes our deliberations look foolish shortly after we have concluded them.
I am grateful to the Minister for his response. We will certainly return to this issue on Report; there is no question about that. The application of the LASPO Act to these proceedings sits in the context of a very clear undertaking, which we intend that the Minister and the Government will live up to. We will come back to that and I hope that we will have more specification of some description, or at least that the tripartite talks may have concluded in relation to Lord Justice Leveson’s recommendations. Pending that day, I will keep the rest of my powder dry and, for the moment, seek the leave of the Committee to withdraw the amendment.
“Defamation county courts: special jurisdiction
(1) The Lord Chancellor may, with the concurrence of the Lord Chief Justice, by order made by statutory instrument designate any county court as a defamation county court and confer on it jurisdiction (its “special jurisdiction”) to hear and determine such descriptions of proceedings—
(a) relating to defamation, or(b) ancillary to, or arising out of the same subject matter as, proceedings relating to defamation,as may be specified in the order.(2) The special jurisdiction of a defamation county court is exercisable throughout England and Wales, but rules of court may provide for a matter pending in one such court to be heard and determined in another or partly in that and partly in another.
(3) An order under this section providing for the discontinuance of any of the special jurisdiction of a defamation county court may make provision as to proceedings pending in the court when the order comes into operation.
(4) Nothing in this section shall be construed as affecting the ordinary jurisdiction of a county court.
(5) The Lord Chief Justice of England and Wales may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise his functions under this section.”
Lord Browne of Ladyton
My Lords, this amendment is designed to probe the Government on the possibility of creating a defamation county court. The idea of having such a court has already been discussed in a previous session of your Lordships’ Committee. It was a recommendation of the Joint Committee, at least in a pilot sense. At this time of day, I shall spare your Lordships the pain of having to listen to me read the whole of the paragraph that refers to this from the Joint Committee’s report.
However, for the purposes of the record it is paragraph 87, which I will read in short. It starts with a sentence that I think we would all agree with:
“Some witnesses argued that costs would be reduced if libel cases were generally dealt with by county courts rather than the High Court”.
It goes on to make a good argument, concluding:
“The Ministry of Justice should implement a pilot scheme to determine how this proposal might work in practice”.
This amendment is our attempt to set a statutory framework for such a pilot scheme. The idea behind it is to significantly reduce the costs of defamation proceedings; an issue that we have agreed is a shared concern.
The drafting of this amendment will prove not to be perfect but it is intended to be a probe. However, it is based on the Patents County Court. By way of background, the Patents Court is not a county court in the usual sense but a specialist court for the resolution of intellectual property disputes. It was originally set up in 1990 but was set up under its most recent guise in late 2010, with the aim of providing efficient intellectual property case trials as an alternative to costly and time-consuming High Court trials.
The key provisions of the Patents County Court are that costs are on a fixed scale, capped at £50,000, while the damages that the court can award are limited to £500,000 and each trial is aimed to be concluded—wait for it—within two days. The court has recently started giving non-binding opinion, generally during the case management conference stage of proceedings and before trial, as to the likely outcome of the case. I suspect that all noble Lords in this Committee would welcome that environment for the early and swift deliberation of cases that got to trial, never mind the issue of some pre-trial provision or alternative dispute resolution, which noble Lords have previously discussed.
When this idea was discussed during our previous session, the Minister said that he would go away and think about the idea. With this amendment I am providing an opportunity for the Minister to tell us where his thinking presently is. For the purposes of the record, the exchange that I am referring to was with the noble Lord, Lord Faulks during the first day in Committee at col. GC 458. I beg to move.
Lord Marks of Henley-on-Thames
My Lords, I strongly support allowing county courts to hear all but the most serious defamation cases. As the noble Lord has said, it was a recommendation of the Joint Committee; indeed, it was the noble Baroness, Lady Hayter, and I who advocated it very strongly on that committee. Quite apart from the complexity of the law and the arcane procedures that we have developed, one of the main reasons why costs have become so high in these cases has been the development of a highly specialist Bar and specialist solicitors, all conducting cases very expensively exclusively in the High Court.
The simplification of the defences in this Bill, coupled with the simplification of procedure and more extensive and earlier case management, should make it possible to reduce the complexity of defamation cases substantially. In those circumstances, the development of county court expertise with designated judges to manage and hear these cases would make justice, importantly, more local, quicker, cheaper, simpler, and in all ways more accessible. Of course there will always be cases that are complex, difficult and paper-heavy. They will require High Court expertise and the attention of specialist High Court judges. However, I hope that for the generality of cases county courts will become the norm and that therefore the cases will become simpler to sue, to defend and to resolve. We recommended trialling county courts for defamation cases; I ask that that happens soon.
Lord McNally
My Lords, it has taken me till the fourth day of this Committee to rumble the noble Lord, Lord Browne. Beneath his metropolitan, urbane and sophisticated exterior, there is a canny Scot. My absolute copper-bottomed assurances on dealing with costs are met with a clear assurance that that will not be delivered without him battering us on to deliver. Now he notices a bandwagon on county courts that was rightfully set rolling by the Committee and he immediately claims it as his own. I can see him now, ticking off in his memoirs the influences that he has had on the Bill. I hope that when he gets home tonight he will read to his wife the passage about “metropolitan, urbane and sophisticated”.
Let me be clear that defamation cases can be started in a county court at the moment, although both parties must agree to this in writing. That is the position under Practice Direction 7A to the Civil Procedure Rules, but I freely acknowledge that it may be that we should revisit those procedure rules. We will give the issues involved very careful attention, and I sincerely welcome this very useful debate and the suggestions that have been made. The Lord Chancellor already has broad powers to allocate business between the High Court and the county courts. When the noble Lord, Lord Faulks, raised the matter earlier in our proceedings, I think I mentioned that the Lord Chancellor has expressed his interest in this idea. The Lord Chancellor’s broad powers are under Section 1 of the Courts and Legal Services Act 1990. The provisions in the Crime and Courts Bill to establish a single county court, which the House has approved, will preserve this power.
I therefore assure noble Lords that we are very interested in this idea, but it does not need primary legislation to carry it forward. If we consider the use of county courts to be appropriate, the necessary procedural changes to enable that to happen can be put in place. I hope that that is a firm enough indication of direction of travel. I tore up my notes and changed them to that very positive response because of the persuasive case that the noble Lord, Lord Browne, made in opening this debate. In the mean time, I hope that he will withdraw his amendment.
Lord Browne of Ladyton
My Lords, I am grateful for the support of the noble Lords, Lord Marks of Henley-on-Thames and Lord Mawhinney, but I am not surprised by it because the amendment draws support already from the report of the Joint Committee. I am grateful also for the overt support of the noble Lord, Lord Phillips of Sudbury.
I have to thank the Minister for his flattering if somewhat inaccurate and probably libellous description of me. It is unworthy of him to suggest that I am a bandwagon-jumper in any sense. I will privately produce evidence to him that this is an issue which I have been discussing with members of the legal profession in England in various guises for some months now, because it is not entirely what he and the noble Lord, Lord Faulks, described and discussed. This very specific provision is presented in this fashion, taking advantage of the specialist Patents Court, to make another criticism that I think the Minister will have to face should he seek our shared ambition of moving these cases to the county court—that is, there are already specialist judges who do these cases, but they are in the High Court. There will be, I predict, resistance on the part of the judiciary, among others, who will say that this difficult, complicated work, which requires High Court judges, has to be kept there.
The reason why I presented the amendment in this fashion, having thought about it for some time—since long before the exchange between the noble Lord, Lord Faulks, and the Minister took place—is that I cannot think of a more complicated area of law and fact than patent law. If a specialist court at county court level, with specialist judges, works for that area of the law, then I believe it can work for defamation.
I am also told that it is in the nature of the legal profession that our very senior judges tend to have been in the profession for a period of time and retire. I am not entirely sure what further lifespan on the Bench—that is the wrong phrase—what further time on the Bench the judges in the High Court who are specialists on defamation have. Although I do not know this, the suggestion was made to me that there is a probability that they will retire, or at least that a significant number of them may, within a comparatively short time. I am not sure whether that is right but they will have to be replaced sometime, and it should not be beyond the ability of the legal profession to produce judges at county court level who have this specialism.
I am not entirely sure whether the Minister is right that the creation of a specialist court or courts, such as the patent courts, does not require primary legislation. If it does not then I am interested to know why the patent courts were created by primary legislation if we can create specialist county courts without it, but maybe the law has been changed since they were created.
Lord Phillips of Sudbury
Might the noble Lord encourage the Government to look at the possibility of empowering registrars of county courts to do much more of the preliminary work? They could have a much bigger role, but again that might require primary legislation.
Lord Browne of Ladyton
I am grateful for that intervention from the noble Lord, Lord Phillips. The best that I can say is that I am sure the Minister has heard that suggestion, and when he is deliberating further on this potential development I am sure that he will take into account.
I am reassured that this is sufficiently high among the Government’s priorities to be a possibility—that is the best that we can expect at this stage. We will continue to keep an eye on this issue while the Bill is before the House.
Lord McNally
The noble Lord asked a specific question on the powers to create a court in this area. The amendment is clearly based on the provision for the Patents Court in the Copyright, Designs and Patents Act 1988, which is being repealed as part of the provisions of the Crime and Courts Bill for establishing a single county court. It is superfluous because powers already exist to allocate jurisdiction as between county courts or, in future, in the single county court and the High Court under Section 1 of the Courts and Legal Services Act 1990.
This also gives me the opportunity to withdraw my scandalous assertion; I was just getting a bit demob happy in asserting that the noble Lord jumps on bandwagons. I stick by “metropolitan, urbane and sophisticated”, though, because I know how much trouble that will give him back home in Scotland.
Lord Mawhinney
My Lords, at the end of his last contribution to the noble Lord, Lord Browne of Ladyton, the Minister talked about the importance of procedural change. This amendment is about procedural change. The committee got frustrated at times because to us the single most important thing was cost and bringing this legislation to literally millions of people who are at present prevented from getting coverage by the law. I will not take the time of the Committee at this late hour to read into the record the evidence that the Minister gave when he came, but we were encouraged that he was of a similar mind to us. The Government have the power to interact with the senior levels of the legal profession and the judiciary to require them to do things. We were hugely impressed by the cost attached to the management structures of the judiciary at this time. They could be streamlined, enhanced and quickened, and all of that pulls down the cost and therefore makes legislation available to millions who at the moment are priced out of the market.
I know my noble friend is going to tell me about the Master of the Rolls. I understand all of that. I have noted very carefully that he hopes to be in a position to press a button of some description by October of this year and I am sure we are all going to hold him to that. But I cannot let this opportunity pass. This looks on the face of it a fairly obscure, perhaps mildly boring, not very important amendment but it may be just about the most important amendment that the committee made and it comes with a lot of feeling, a lot of passion and a lot of importance. If Parliament does not legislate to make remedy available for the millions, it is legitimate to question what Parliament is all about. If my noble friend will accept this amendment and then put his shoulder to the wheel and push aside those who will line up to thwart him in every direction, he will have the thanks not only of our committee, not only of this Committee, not only of the House and Parliament; he will have the thanks of millions and millions of people who will look at our deliberations tonight and think, “It is all very well for them but we do not have any say in this procedure at the moment”. I strongly commend this amendment to the Committee.
Lord Browne of Ladyton
My Lords, on behalf of the Opposition, I wish strongly to associate myself with the amendment tabled by the noble Lord, Lord Mawhinney. It must be possible for Parliament through this Bill to find a conduit to the appropriate Rolls committee to express the unanimous view of Parliament that access to justice in this area must be improved and it can only be improved if we reform the way in which these cases are conducted to reduce the cost and delay of them. I am not entirely sure whether this is the appropriate way to do it and I do not think it matters to the noble Lord, Lord Mawhinney, whether it is. There must be a way of doing that without transgressing on the appropriate separation of powers. There must be some way of getting that message across. It is undoubtedly the case for those of us who have practised before the courts, whether in this jurisdiction or in other jurisdictions, that whether there is a specialist Bar, whether there is a complicated area of the law, whether there are litigants with deep pockets, the one thing that is most important to the efficient conduct of business is the maximum appropriate judicial intervention to concentrate the minds of parties on the real issue and to get them to resolve those issues in the minimum of judicial time. If we can find some way of doing that, while at the same time ensuring that those who do not have deep pockets have a right to redress, we will have done our work. Raising the bar, simplifying and explaining the defences and preparing the best suite of defences the world has ever seen will mean nothing if all we have done is recreate the issues of dispute for the same tediously long processes and complicated debates that eat up vast amounts of people’s time and resources. They also destroy lives—much more quite often than the remarks that were made about them in the first place.
Defamation Bill
Lord Browne of Ladyton Excerpts(11 years, 10 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Deputy Chairman of Committees (Lord Colwyn)
My Lords, if there is a Division in the House, the Committee will adjourn for 10 minutes. This is the Grand Committee on the Defamation Bill, and we are resuming debate on Amendment 23A. The noble Baroness, Lady Hayter, moved the amendment, the Question was put, and the noble Lord, Lord Ahmad, adjourned discussion after about 50 minutes. We are now going to discuss Amendment 23A, which says:
“Page 3, line 21, leave out ‘a website’ and insert ‘an electronic platform’”.
However, I know that the noble Lord, Lord Browne, wishes to say something before we start.
Lord Browne of Ladyton
My Lords, I am very grateful to your Lordships for allowing the possibility of raising an issue that is not related to the group that we are presently discussing, but which is directly relevant to an issue that we thought we had perhaps put to bed, in terms of this Committee’s deliberations, on the previous occasion. To my surprise, on about 10 January, it was reported on the BBC that Rutland County Council, taking advantage of the general powers that have been granted to it by Section 1 of the Localism Act 2011, intended to sue for defamation three of the members of the council. This was extensively reported on the BBC and locally in the Rutland area. Happily, the Rutland County Council, to the edification of everyone interested in this, has published the legal opinion on which it based this intention on its website.
Without going into the detail, it appears that the council’s lawyers have advised it that Section 1 of the Localism Act has repealed the judgment of the House of Lords in Derbyshire County Council v Times Newspapers Ltd by granting a power for local authorities, in these circumstances, to behave as if they were individuals. I have no idea whether that is right or wrong; but whether in fact that has happened ought to be explored before we close our deliberations in Committee on this Bill. I merely draw this to the attention of Members of the Committee, in particular to the Minister, with the request that he has this matter investigated and reports back to us before we conclude our deliberations. In the mean time, I will ensure that all the information I have managed to glean over the past couple of days is sent electronically to the Minister’s private office. I do not intend to say anything further.
Lord Lester of Herne Hill
Assuming it is permissible for me to do so, I will say in response—because I was involved in the case—that I do not agree with Rutland at all, for reasons that I will go into hereafter, if necessary.
Lord Lester of Herne Hill
My Lords, the amendment is grouped with Amendment 27 in the names of by the noble Viscount, Lord Colville and the noble Lord, Lord Allan, to which I shall also speak.
My amendment is at least easy to understand. It would simply add the words “and unlawful” on page 4, so that the notice of complaint under Clause 5(6) would require the complainant to specify a name, set out the statement concerned and explain why it is defamatory of the complainant—and, I would add, “and unlawful”—and then specify where on the website the statement was posted and contain such other information as may be specified in regulations.
Amendment 27 is much more prescriptive. I will not develop that argument because it is not my amendment, but Members of the Committee will notice it sets out in some detail what it is that the complainant is required to explain. Looking at the two amendments, mine is much less prescriptive than Amendment 27, although that does not make it necessarily better. The amendment gives effect to the recommendation of the Joint Committee on Human Rights, on which I serve, that,
“the threshold for a Clause 5 notice should be elevated to ‘unlawful’, which would also ensure consistency with the E-Commerce Directive and the Pre-Action Protocol for defamation”.
The committee noted that the Government said in response that they were,
“concerned that to adopt the higher threshold would overcomplicate the process”,
because,
“requiring complainants to provide details of why they consider the posting to be unlawful, rather than just defamatory, would make it more difficult for a layman to make a complaint without first having sought legal advice, and would add to the cost and difficulty involved”.
The Government sought to distinguish,
“between the purposes of the E-Commerce (EU Directive)”—
which uses the word unlawful—and Clause 5, so as to seek to “justify” the apparent “inconsistency”.
Under article 19 of the e-commerce directive, a website operator acting as an intermediary hosting material is potentially liable once notified that a statement is unlawful, as it would be under my amendment. By contrast, a website operator is not liable under Clause 5, provided that it does not post the defamatory material. The Government say that the website operator acts merely as a middleman or go-between and does not need to consider the merits of the complaint in order to protect itself from liability. However, the Joint Committee on Human Rights concluded that:
“We are not satisfied with the Government’s distinction in this matter. We think there is a real risk that website operators will be forced to arbitrate on whether something is defamatory or lawful, and will to readily make decisions on commercial grounds to remove allegedly defamatory material rather than engage with the process. As drafted, Clause 5 risks removing material from the internet, which, although it may be defamatory, may be lawful if a relevant defence applies. Material which is lawful may be suppressed because website operators are served with such notices”.
The Libel Reform Campaign supports this amendment, which allows me to make an apology to both the noble Lord, Lord May of Oxford, and to it. Last time in Committee, I became grumpy when the noble Lord, Lord May, appeared, on its behalf, to suggest that the “responsible publication” defence in Clause 4 was not good enough. I think there was a misunderstanding. I have now received the briefing from the Libel Reform Campaign and realise that it supported the amendments being made to Clause 4 and that the remarks of the noble Lord, Lord May, were not intended to say anything other than that. Because of the sensitivity of the matter, I thought it right to make that clear at this stage.
I am trying to keep this brief, and not succeeding very well, but I should also add one other point. I need to quote the Ministry of Justice’s consultation on the Clause 5 regulations—the regulations, not Clause 5 as it is—because it seems inconsistent with the Government’s position on my amendment. It says, at paragraph 9, that:
“We propose that the following should be included in a notice of complaint (this is a combination of what is already listed in clause 5, and other points that we think should be in the regulations)”.
Here the Ministry is telling us what they think should be in the regulations. It has,
“the complainant’s name and a means of contact … specific information to direct the operator to where the post can be found on the website … the statement complained of together with an explanation of how the statement is defamatory of the complainant, including (as appropriate) details of any factual inaccuracies or unsupportable comment within the words complained of”,
and then other matters as well.
The Government apparently have it in mind that the regulations will require quite a lot from the complainant. I agree with that, but I am troubled that unless my amendment inserting the phrase “and unlawful” is accepted, the draft regulations will go further than is permitted by Clause 5. Although that sounds very technical, it is quite important to ensure that that is not so. It does not seem to be enough that the complainant can simply say that the complaint is defamatory. All that “defamatory” means is that the complainant is saying that it is not true and it affects reputation. That does not seem to me enough—and it does not seem to the Government to be enough, considering their view of the regulations—for that to trigger responsibility on the website operator. At least the complainant should have thought about whether it is not merely harming reputation but also in some way unlawful. This does not have to be done with great legal analysis, but there should be some such indication.
Lord Browne of Ladyton
I do not wish to interfere with the noble Lord’s attempt to be brief. Will he consider the observations that he has made, which he draws from paragraph 9 of the consultation document of which we have all been sent a copy, in the context of the words of the Bill itself—in particular, the words of Clause 5(6)(b) which require that the complainant in the notice, among other things,
“sets out the statement concerned and explains why it is defamatory”.
Would that not be a basis for a set of regulations that expand on it in the way in which this paragraph sets out?
Lord Lester of Herne Hill
My Lords, that may be so, in which case I made a false point on that. However, my main point is that it is not enough—and the regulations seem to accept this, in draft—to simply say that it is defamatory. It must in some way indicate that it is unlawful. That is probably common ground in the way in which I read the draft regulations. If that is so, and that is what we are told in our reply, it may well be that my amendment will not be necessary.
In my attempt to be brief, I appear to be arousing too much interest. I give way to my noble friend.
Lord Lucas
My Lords, I am very grateful to my noble friend for that explanation. Our noble friend Lord Ahmad has been doing a superb job, and I have been immensely impressed. I had assumed that my noble friend Lord McNally was silent because he was serving time in the penalty box after voting against the Government yesterday.
Lord Browne of Ladyton
My Lords, those of us on this side of the Committee welcome this amendment because it follows the advice and recommendation of the Delegated Powers and Regulatory Reform Committee and the advice of the Joint Committee on Human Rights, but mostly because an amendment—identical in effect if not in words—was moved by my honourable friend Rob Flello in Committee in the House of Commons and was rejected by the Government. The reason given by the then Minister Mr Djanogly was that:
“The Government consider that the detailed and technical nature of the proposed regulations, and the fact that they will govern procedural issues, means that the negative resolution procedure is more appropriate, and provides the appropriate level of parliamentary scrutiny”.—[Official Report, Commons, Defamation Bill Committee, 21/6/12; col. 122.]
That sentence, in itself, argued for why that was exactly the wrong procedure for these regulations. I am pleased to see that the Government have accepted that that was the case and have now welcomed this provision into the Bill.
Having listened to the debate on Clause 5, I do not share the level of guilt that the noble Lord has for having had his colleague deal with it. I am delighted that my noble friend Lady Hayter has agreed to do this. She is well equipped for the job and, indeed, has much greater experience than I have in your Lordships’ House, which makes her better equipped for this complicated part of the Bill than I am.
I believe that the most important part of Clause 5 will be the consultation on the regulations, which everyone who has come to lobby me about this part of the Bill seems to be a part of. I understand that the noble Lord, Lord Lucas, may well become part of this consultation process. Maybe it is time for all of us to become part of this consultation process, because looking as I do now, in the light of the discussion that has taken place in your Lordships’ Committee, at the 26 paragraphs of this consultation document, I would like to have my say about what should be in these regulations.
It might be helpful if some process was set in place so that those from all the various interests that are represented in your Lordships’ Committee who have shown an interest in this Bill could have an active role in a process of discussion in respect of these regulations. Otherwise, I suspect that at some stage in the progress of this Bill—perhaps on Report—we may find ourselves timetabling insufficient time for the debate that will ensue in relation to Clause 5.
Lord Lucas
My Lords, I am slightly sad that this privilege should not be extended to the Daily Mail, if one can imagine how that would work. I am concerned that the definition of “journal” should be wide enough. There are a lot of what might be called open-access journals now, rather than just the ones that are paid for, and I find them much more useful because I can actually get to read what is in them rather than being asked to pay £20 a time to see if what is in there is of interest to me. As the amendments point out, there are a number of websites that serve very similar functions, where intense discussions take place.
Even with regard to the Bill, how much does the word “journal” cover? Would it include Scientific American, for instance, or similar publications? At what point does something stop being a journal and start being a magazine or a publication that is ineligible under this part of the Bill?
Lord Browne of Ladyton
My Lords, I support the direction of travel that the amendment proposes, but this is not yet a complete process. Let me explain. I had the benefit of a long engagement with the noble Lord, Lord Hunt, in the early stages of the evolution of this amendment, and I gave him my views on this issue, which were quite strong. My understanding was that the purpose of the early amendment that was put to me was to create an environment in which there could be a debate or dialogue on an issue of controversy, in the public domain and in a moderated fashion, but which would attract privilege.
I expressed my concerns to him about that as an idea, and I summarise them in this fashion: while I agree that there needs to be the sort of debate among scientists, technical people and academics that the noble Lord, Lord May, robustly describes regularly to us, to the benefit of our deliberations, I am not entirely sure that it is in the interests of everyone who is affected by that for it be taking place in public. To give an example off the top of my head, if someone had concerns, based on good technical analysis and engineering understanding about the braking system of a mass-produced motor vehicle, then if I were a shareholder in that firm I would be very unhappy if that debate took place in the public domain before it was settled. I would be equally unhappy if we as legislators allowed that public debate to have privilege, because one could guarantee that no one would buy that motor vehicle while that debate was taking place and it could ruin a business. I am sure that others can think of many other examples that would be entirely inappropriate. So I have reservations about that.
However, if the amendment is not seeking to generate that sort of debate or a forum for that sort of debate and to allow it to attract privilege, and I do not hear that it is, there is now an interesting evolution of the peer-reviewed statement in scientific and academic journals that Clause 6 was designed to create the opportunity for, and to allow there to be privilege. It could properly reflect the changing, modern environment that we live in, where there is the possibility that the organisations that have been given this role, if they all accept it, could provide an opportunity for healthy debate and discussion—an appropriate point in the public domain that would aid academic consideration, and which would aid technical and scientific discussion. I have a number of problems with that and I do not think that we should conclude our debate on this issue at this stage. I hope that the Minister will approach this in the way in which he approached Clause 5 and say that the Government will take this away and think about it.
My understanding of Clause 6 is that it depends on the fact that what is published in scientific or academic journals—they could be e-journals—is entitled to privilege because it is peer reviewed. It does not reach the public, a wider audience, until a controlled discussion has taken place among those people qualified to do so. People who work at that level in a discipline are used to reviewing each other at peer level. We have significant confidence in them. Those of us who do not have the expertise in particular disciplines rely on them heavily as regards what, for example, the BMJ, will allow to be published.
If another institution, or a set of institutions—for example, the institutions identified by these amendments —is willing to take on the responsibility of that level of peer review before it allows these statements to be published, I am entirely in agreement. If that generates a controversial debate, we should consider whether that debate started by a peer-reviewed assessment should attract a level of privilege. I do not know whether other Members of the Committee will share my view that this is a really interesting idea but that it needs a lot more work. I am not in a position to do that significant amount of work but the one question that I ask the noble Lord, Lord Hunt, is: what is the equivalent of this addition of peer review? We on these Benches could not support a view on an issue of controversy, which potentially could be defamatory, being exercised in a privileged environment just because it was a view held among technically gifted people, scientists or academics. I think that it could be just as damaging.
Lord Mawhinney
Listening carefully to what the noble Lord, Lord Browne, has said, would it be fair to summarise that he is saying that further work needs to be done on the definition of the word “recognised”?
Lord Browne of Ladyton
With respect to the noble Lord—I am always anxious to agree with him because of the role that he played in relation to the formation of this area of policy—it may be my fault, although I am not sure whether it is my accent or the content of what I am saying. Perhaps I have not explained myself well enough.
The noble Lord’s summary is part of my concern, although I have a broader concern. In the light of the hour and the amount of time that we have already spent on this matter, and the fact that I suspect that we will find time to get back to this in more detail—perhaps offline, as it were, from the Committee—I will not lay out all the detail of my concerns about this. I have a number of them and that is one of them. My fundamental concern is that there is a hurdle to overcome before publication in the clauses as drafted: peer review. I am not entirely sure that, if we expand it into statements that are published on websites belonging to those other institutions, those statements will have the same imprimatur of peer review before they are published. If we could find a way to do that, I would be happy to support the proposal but it is complicated.