Defamation Bill

Debate between Lord Browne of Ladyton and Lord Lester of Herne Hill

Tuesday 5th February 2013 Lords Chamber

[Lord Lester of Herne Hill]

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

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

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

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

[Lord Browne of Ladyton]

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

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

Defamation Bill

Debate between Lord Browne of Ladyton and Lord Lester of Herne Hill

Tuesday 15th January 2013 Grand Committee

[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.

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[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.

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[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 Lester of Herne Hill]

I agree with that.

Defamation Bill

Debate between Lord Browne of Ladyton and Lord Lester of Herne Hill

Wednesday 19th December 2012 Grand Committee

[Lord Lester of Herne Hill]

My Lords, first, I am glad that the noble and learned Lord, Lord Lloyd of Berwick, referred to Lord Ackner. I remember when I was arguing a case called Pepper v Hart and the Attorney-General said, “Don’t pay any attention to what Ministers say at three in the morning, it is often rubbish”. Lord Ackner looked at him and said, “Mr Attorney, is the proposition that Ministers should think before they speak incompatible with good government?”.

The purpose of Clause 3 is to get rid of the uncertain common law and make sure that the problem that the noble Lord, Lord Lucas, has just raised will not arise again. It is curious that he should mention the example of the food critic, because what convinced me that we needed a Bill, and particularly Clause 3 of the Bill—which was invented by Heather Rogers QC, in my view the most knowledgeable and open-minded of all the QCs practising at the libel Bar—was a case that I did in Northern Ireland about a food critic. A restaurant called Goodfellas, which was probably funded by the IRA, was reviewed in the Irish News by Caroline Workman, the newspaper’s food review critic. The review was very rude about the quality of the food in the restaurant. However, counsel on both sides and the trial judge—and certainly the jury—confused facts and opinion. Caroline Workman was put in the witness box for three days and cross-examined on whether the food was, or was not, of the standard that she had put in the review. When I came in on appeal, I attempted, successfully, to repair the damage by persuading the Court of Appeal in Northern Ireland that if it is a food review, and everyone can see that it is about opinion, you need very few facts in order to justify the opinion. There are, for example, food or theatre reviews that just use stars, so that no stars means that it is terrible and five stars means that it is worth eating or seeing. It is defamatory to put no stars, or only one star, but it would be absurd for the reviewer to have to prove anything more than that they were there at the time; in other words, that it was not malicious. Leaving aside for the moment the point made by the noble and learned Lord, Lord Lloyd, the beauty of Clause 3, as it stands, is that it really does, for the first time, make the distinction between honest opinion and the defence of truth as good as I think one can get it.

However, I agree with everything that the noble and learned Lord, Lord Lloyd, has said about the Telnikoff case. I am not sure about the precise words of the amendment, but if the Minister were able to make a Pepper v Hart statement to indicate that whereas in subsection (8) we overrule the common law defence of fair comment—that we abolish it and start afresh—and that the intention in doing so is, among other things, to overrule the majority decision of the House of Lords in that case, then it might not be necessary for an amendment to proceed. One of the difficulties I have with the amendment is that although it singles out newspapers, there are of course other publishers as well—but that is a matter of boring technicality. I strongly support the spirit of that amendment and I hope that I have clarified why the noble Lord, Lord Lucas, can sleep easily tonight.

[Lord Browne of Ladyton]

My Lords, the Committee will be pleased to hear that—broadly for the reasons articulated so well by the noble Lord, Lord Lester of Herne Hill, about the purpose of the clause—I do not intend to speak for very long on Clause 3. Our Benches support the clause, although we recognise that in doing so we are not saying that it cannot be improved. If any of the amendments in this group can improve or assist the purpose of this clause, we will be happy to support them.

I regret to tell the noble Lord, Lord Lucas, that while his proposed amendments raise an interesting aspect in the discussion about the difference between facts and opinions, I have to say that I am inclined to agree with the view of the noble Lord, Lord Lester of Herne Hill, which is that the only fact that must be established in the example of a restaurant review is that you can prove that you have eaten in the place. I cannot support his amendments, although I will be interested to hear what the Minister has to say about the degree of certainty that one can have now when operating in the area of opinion, so that one can avail oneself of the defence offered by this clause in the future, as opposed to in the area of fact. However, I suspect that one would not want to raise that issue in a room full of lawyers because the position is unlikely to be clearer at the end of the discussion than it was at the beginning. It may be better just to leave it to ordinary people to decide whether or not they are dealing with opinion. It is the sort of thing that one knows when one sees it.

On the amendments spoken to by the noble Lord, Lord Phillips, I anticipate to a degree that the response will be that they are unnecessary. I hope that the Minister will be convincing in his explanation that they are, but the noble Lord has raised important issues around the adequacy of information that would allow people to take a view as to whether the opinions being expressed are supported by facts. If they are the reporting of other people’s opinions or statements, there has to be some information available to allow people, outwith court proceedings, to come to a view as to whether the opinions are justifiable in the circumstances of the facts that have informed them. The noble Lord has done the Committee a service by identifying this issue. I am not entirely sure that his amendments would improve the clause, but I shall leave it to the Minister to defend the drafting.

I turn to the very specific amendment tabled by the noble and learned Lord, Lord Lloyd of Berwick. We cannot say that we have not had notice that this amendment was likely to be brought forward because the noble and learned Lord raised this issue in a short contribution made on Second Reading, when he asked a series of very specific questions. My recollection is that he got a positive response from the Minister, who indicated that he agreed with his view. I thought that the noble and learned Lord explained the point compellingly in terms of the House of Lords’ decision in Telnikoff v Matusevitch, saying that it is not good law. However, I suspect that the noble and learned Lords who considered that decision did not think that it would be further appealed in the House of Lords some 20 years later. The question, of course, is whether the issue needs to be addressed. I think that the mood of the Committee suggests that this is not good law, but there is a question of whether it needs to be dealt with in the Bill or by the sort of device suggested by the noble Lord, Lord Lester of Herne Hill.

Members on these Benches will listen carefully to the Minister’s response and we will test that against how the noble and learned Lord, Lord Lloyd of Berwick, in turn responds to it. If we need to come back to this issue again, I think that the noble and learned Lord can rely on our continued support. This stain on the law of England should be removed at some stage by other processes.

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[Lord Lester of Herne Hill]

Would it not be in favour of the amendment to look back at what Clause 4(2) looks like? In subsection (2), it says that the court may,

“have regard … (amongst other matters)”.

That goes, because of the way in which the amendments operate. Is the noble Lord saying more than, “The concept that the Government accept in the unamended subsection should somehow be reflected in the amended one”? It seems that what is being said represents the Government’s own view, as expressed in the unamended Bill, that the court may,

“have regard … (amongst other matters)”.

What is being said now is that that must be reflected in new wording. It therefore seems that the noble Lord may be too pessimistic in assuming that what he is proposing would not be accepted by the Government; I have no idea.

[Lord Browne of Ladyton]

I am grateful to the noble Lord for his intervention. Unlike a previous intervention that he made—which I thought had the distinct shape of a lifeboat being offered to someone who refused it—I am not going to reject his offer to keep my head above water. The oxygen of an intervention can quite often be helpful.

I am of course willing to discuss the mechanism for this further. I am conscious enough of the necessity sometimes not to insist on the form of words that I alight upon, allowing room for some manoeuvre. I would just make the argument on behalf of our Benches that it would be helpful to the general direction of the Bill, and on the effect that it will have on people’s behaviour, if we send a strong message in this clause that we are moving so far away from this checklist that we are prepared to countenance any relevant circumstances as being important to whether something is in the public interest or whether they reasonably believed it to be so. I am pleased that the Minister has used this form of words himself on more than one occasion, particularly when he was explaining the expectation of what the courts would do in applying this particular test.

I turn to the only other amendment apart from the Government’s three amendments, which I support. It has survived the contributions of those in whose names the amendments appeared under in the Marshalled List. It seeks to replace editorial judgment with the publisher’s judgment. I entirely understand, from the point of view of those at the sharp end, why they do not want to be hemmed in by something that is too closely associated with only one form of media. They are looking for a generic term that covers all the forms of publishing that now exist. Everyone involved in those forms now has responsibility for putting information into the public domain. I respect entirely the argument of the noble Lord, Lord May, on this.

I noted that in the Minister’s introductory remarks—I hope that he will find a few moments to reinforce this—he referred to the phrase “editorial discretion” as intending to give latitude to the judgment of how a story should be presented. From that I took the view that “editorial” is an adjective relating to an action rather than a job description. I think that it already covers all the different kinds of people who are, in legal terms, “publishers”. If that can be made crystal clear in an easily accessible way, the concerns that were properly expressed by those who think that perhaps this is too newspaper-oriented in its terminology can be dealt with.

I am grateful for the contributions of all noble Lords, and I hope that they will forgive me if I do not mention them individually. They have substantially enriched our debate, even if only two supported the amendment in my name and that of my noble friend. I am grateful in particular for the support of the noble Lord, Lord Mawhinney, because he comes at this with a view that is born out of his intense relationship with the issue over a concentrated period as chair of the Joint Committee. He speaks with authority, so when I get support from that quarter, I value it. The same gratitude applies to my noble friend Lady Bakewell for her support. She speaks for many people who have to make these decisions without constantly having lawyers by their side, and sometimes in comparatively difficult circumstances. I am grateful to her for saying that my amendment would be of assistance to them.

I have little to add and I will not go into the detail, but on the point made by my noble friend about the definition of “public interest”, I would draw the attention of the Committee to the Guidelines for Prosecutors on Assessing the Public Interest in Cases Affecting the Media, which is published by the Director of Public Prosecutions. Paragraph 31 on page 9 gives a set of examples of conduct that is capable of serving the public interest. It is designed to instruct prosecutors on how they should approach decisions that affect the media, particularly on the question of whether a prosecution is required in the public interest. These considerations are helpful because they clearly show the distinction between what the public are interested in and what is in the public interest. At some stage when we come to consider guidelines or government expressions of what they think they have achieved with this legislation, drawing on that sort of information will be helpful when addressing the issue identified by my noble friend Lord Triesman. It is a serious and important point in the challenge of finding a balance.

[Lord Lester of Herne Hill]

Not only do I agree but I wonder whether the following might meet that need. The Explanatory Notes on the Equality Act are the best example that I have ever seen. They are particularly good because they give illustrative examples of the application of particular clauses. As I understand it, it is now good practice when a Bill has completed its stages for the Explanatory Notes to be revised in the light of the debates, so that the courts and public have an authoritative guide. The Explanatory Notes to this Bill are accurate but not in any way verbose; they are sufficient to provide that kind of guidance. It might be worth thinking about ways of including such examples in the Explanatory Notes. I know that they are not the kind of things that normally one reads on the train, but it might be one way of encouraging public understanding. I am sorry to have interrupted the noble Lord, but it occurred to me that that might be a way forward.

[Lord Browne of Ladyton]

I am very pleased to have given the noble Lord an opportunity to make a very good and common-sense suggestion that I am sure the Government will take on board. They have taken on board quite a lot of what he has suggested in relation to this particular area of the law. In general, I agree that Explanatory Notes should not be set in stone at the point of publication of a Bill and not revisited, because Bills are often changed substantially during their passage through Parliament. It would be helpful to have revised Explanatory Notes. I agree with the noble Lord that sometimes the Explanatory Notes do not take one very much further forward than the Bill itself. This Bill has been significantly changed and the notes could do with some revision.

I will just point out that as a Scottish lawyer there is no conceit on my part about the state of Scots law. Clauses 6, 7, 15, 16 and 17 of the Bill extend to Scotland. When we reach a discussion of something that is directly relevant to Scotland, I will express my regret that there does not seem to be any parallel movement on the part of the Scottish Government to find time in their Parliament to bring the law up to the improved state that it will be in down here when the Bill becomes law.

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[Lord Lester of Herne Hill]

My Lords, I am sorry that the Minister has put me in the position of Scrooge by suggesting that his officials should waste their time over Christmas amending the Explanatory Notes. They can do that over Easter when, it is hoped, the Bill will have received Royal Assent.

I am going to suggest something which I hope will go down well with my noble friend Lord McNally and with the Committee. I suggest that we should simplify what at the moment is completely unnecessary and should be deleted from the Bill. It concerns reportage and what should happen when a publisher publishes a report fairly and accurately. My original Bill, which I do not have with me, dealt with reportage, and subsections (3) and (4) explain how the Government see the position. We now have government Amendment 19 in this group, which is a new version of reportage. However, I have to say that it is completely unnecessary because now that Clause 4 is in a very satisfactory form, I do not think that we need to include anything at all about reportage.

Let us look forward to Amendment 19, which has not yet been moved. It is not something that the man or woman on the Glasgow omnibus would understand. It states:

“If the statement complained of was, or formed part of, an accurate and impartial account of a dispute to which the claimant was a party,”—

The noble Lord, Lord Browne, does not like the words “to which the claimant was a party”, and I do not much like them myself—

“the court must in determining whether it was reasonable for the defendant to believe that publishing the statement was in the public interest disregard any omission”—

that is something of a double negative—

“of the defendant to take steps to verify the truth of the imputation conveyed by it”.

With great affection and respect for parliamentary counsel, I have to say that I find it very hard to understand what is being said here. While I think I understand it, I do not see why it is needed at all. A proper public interest defence, as we now have in Clause 4, covers all publications, including reportage. We could go into the tricky thing about whether it should or should not cover someone who is not a party to a dispute, but I suggest that we should consider that hereafter—I say that not just because I have had no lunch. I do not see the necessity of including anything special on reportage, given the clarity with which the Clause 4 defence is now worded. I seek, therefore, to leave out subsections (3) and (4) and I would oppose putting anything like Amendment 19 in their place. I would certainly regard it as unnecessary to consider an amendment to widen this further. Rather idiotically, I think I have just said the opposite of what I wanted to say. I suggest that we leave out subsections (3) and (4) because they are not necessary and that we do not put anything in their place. I beg to move.

[Lord Browne of Ladyton]

I shall speak to Amendment 20, tabled in my name and that of my noble friend Lady Hayter, simply because I have no idea where these particular words came from. They qualify the dispute that has been reported as being one to which the claimant had to be a party. Shortly I will explain why that is, but having listened to the noble Lord, Lord Lester of Herne Hill—I wish that I had added my name as well to his amendment—on reflection I really do not understand why these two subsections were included in Clause 4 in the first place. I have no particular objection to the attempt in the government amendment to concentrate them into one subsection, although the language is cumbersome. However, I would never underestimate the ability of the ordinary man on the Glasgow bus to understand verbiage.

I do not understand why these subsections were included in the Bill in the first place and I cannot find any debate about it other than that the initial attempt was a codification of the existing law. As I understand it, this element or refinement of the defence about reportage came from a case called Al-Faghi v a Saudi newspaper, or something. Essentially, this offers the opportunity of a qualified privilege defence to the reporting of a dispute, when it is the reporting of the dispute that is the issue of public interest rather than the truth of the allegations that may have been made between the parties to the dispute.

I will not detain the Committee by going through the distillation of the principles on which I have worked from the Al-Faghi case to see where the idea came from that the dispute had to be one to which the claimant was a party before it attracted this qualified privilege. I am pretty certain that the Minister will not be able to find in Al-Faghi a principle that requires that the dispute that is being reported be a dispute to which the claimant was a party. I can think of circumstances where the claimant could be defamed by statements made in a dispute to which he or she, the claimant, was not a party but where the reporting of that dispute could be in the public interest. So it seems unnecessary to qualify this defence, or subset of the defence, if it is to continue to exist, by requiring it to arise out of a dispute to which the claimant was a party. That is my argument. I see from his body language that the noble Lord, Lord Lester, is about to make another helpful intervention.

[Lord Lester of Herne Hill]

It might be helpful to the Minister as well, because I did a pretty sloppy job just now in my desire to be quick. Under existing case law, it is true that the claimant has generally been involved in the dispute reported, either through being personally and directly involved as a party or through membership of a faction or group that is a party. But the principles are applicable when, especially in a political context, both sides of a dispute are being reported. According to Lord Justice Sedley, in a case called Charman v Orion, from 2008, 1 All ER 750, there is no need for reciprocal allegations. There can be a reportage defence for what he called a unilateral libel. He said that the reportage defence,

“developed in Al-Faghi”—

to which the noble Lord, Lord Browne, referred—

“cannot logically be confined to the reporting of reciprocal allegations. A unilateral libel, reported disinterestedly, will be equally protected”.

That is, I think, in the amendment of the noble Lord, Lord Browne. There is no express statement in case law that the claimant must be a party to a dispute, and it would be unfortunate if the new statutory effects were more restrictive than the common-law position. That is why all of this is present. As the noble Lord, Lord Browne, said, it is not to undermine something in the common law. The problem is that the common law is pretty uncertain. It seems to me that we can do away with all this by not having subsections there at all. I hope that that helps. The new subsection has the potential to cause confusion in the light of the rest of the clause by stating that,

“the court must disregard any omission of the defendant to take steps to verify the truth of the imputation”.

The reference to taking steps to verify is there because the checklist in the current version of Clause 4(2)(g), provides, as one of the factors,

“whether the defendant took any other steps to verify the truth”.

If subsection (2)(g) goes, there is no need to provide for the court to disregard that, and any reference to taking steps to verify in subsection (3) would be confusing. I am sorry to go through all this but I think that in the interests of simplifying the law we can get rid of it altogether.

Defamation Bill

Debate between Lord Browne of Ladyton and Lord Lester of Herne Hill

Monday 17th December 2012 Grand Committee

[Lord Lester of Herne Hill]

My Lords—

[Lord Browne of Ladyton]

If the noble Lord will excuse me, I will give way to his noble friend the solicitor first; then I will get to the barrister.

[Lord Browne of Ladyton]

I am grateful to the noble Lord for his intervention but I am perfectly happy to adopt the distinction that the noble and learned Lord, Lord Mackay of Clashfern, offered the Joint Committee and that the chair of the Joint Committee has reported to us. I will live with that. I am happy to accept that. But that is not my point. Although I am speaking to amendments in my name and that of my noble friend, I am using them as a device to try to get some clarity of the Government’s thinking so that our Parliament can say, “We support that thinking. Therefore, people outside can have some understanding of what at least we think we are doing with the law”.

If anyone goes away and reads this, here we have an interesting debate in which a number of differing opinions have been expressed, all supported by eminent lawyers. If that leads to clarity, I am happy to go along with it. It may not be possible to provide the clarity that people crave. But my argument is that in our debates we should at least give some clear indication to people outside—they should not need a law degree for this—about where we are setting this bar and what it means. There are a number of ways in which one can do that, including reference to examples.

I turn now to the Minister’s response. I am grateful to him for the way in which he engages in the debate on these issues. Perhaps the noble Lord, Lord Lester, will allow me to make this point, then I shall take his intervention. I am grateful to the Minister for the way in which he engages in the debate and I know that he will listen carefully to any further points that I or anyone else want to make. I will go away and look carefully at what he has said.

While the Minister was speaking, I was looking carefully at what Jonathan Djanogly said in the equivalent debate in the House of Commons. He will be pleased to know that there was a lot of similarity. But there was some difference and it is that difference for which I am grateful.

[Lord Lester of Herne Hill]

The noble Lord said that I was technically correct. That is fine. If I am technically correct, that is good enough for me. I hope he will accept what I am about to say in a light-hearted spirit. We have now spent slightly more than an hour and the way in which the noble Lord, Lord Browne, has dealt with the matter is exactly the way we should not deal with the matter when interpreting Clause 1. If the kind of point that he makes were to be made before judges, we would undo the very purpose of Clause 1. The purpose of Clause 1 and the word “serious”— I do not agree with the noble and learned Lord, Lord Mackay of Clashfern, that we need the word “substantial”—is to make this a short, simple, preliminary procedure in which the judge, without having to go into evidence, is able to rule on the basis of what he has before him as to whether the case should proceed. That is the intention.

The more that the noble Lord, Lord Browne, refers to differences of interpretation by this person and that person, the more I despair. If those kind of points are made by advocates in interpreting Clause 1—whether with “serious” or “serious and substantial”, and in my view “serious” includes “substantial” and it clearly also includes the extent of publication—the more complicated it is made and the more it will defeat the purpose. We do not want to bar claimants with important claims, nor do we want trivial claims to be brought forward. That is what Clause 1 does; it strikes a balance. I beg him not to add to the complexity. As a great advocate he is very good at raising all these points, but it will defeat the whole object of Clause 1.

[Lord Browne of Ladyton]

I accept what the noble Lord has said and I respect it enormously. I do not treat it light-heartedly. I think he makes a serious point. I feel I may have lost my powers of advocacy actually because I was not seeking to argue to change the words. I was seeking simpler clarification of the words and was using the only device that is open to me in these circumstances. I may not have served that purpose and may have opened up the opportunity for debate, but I do not think that I have done anything other than give some people who are not lawyers a window into the world that we will be living in when lawyers get hold of what we produce.

--- Later in debate ---

[Lord Lester of Herne Hill]

Leaving aside smoking for the moment, how does the noble Lord respond to these various committees all pointing out the impossibility of there being a fair trial when one of the parties in a personal tort like this is dead? It is impossible to conduct a trial after death. This is a matter that one has to respond to if one is going to advocate a change in the law.

[Lord Browne of Ladyton]

I am enormously grateful to the noble Lord, Lord Lester, but perhaps my powers of advocacy have failed me with him once more. I thought I made it clear that I do not support the amendment for many of the reasons he rehearsed by reference to the document he read from—I am not sure what it was, perhaps it was the report of the Neill committee.

For all the reasons I have evinced, I think that it would be impossible to make this work, and I suspect that the noble Lord, Lord Hunt, also probably thinks that it would be incredibly difficult. I just want to repeat the point that we have some obligation not only to the Watson family but to many other people who have to live with the consequences of this sort of behaviour. We have to apply our minds to trying to find some way of giving them redress or at least a way of healing the damage that is done post mortem to the reputations of people who cannot defend themselves.

--- Later in debate ---

[Lord Lester of Herne Hill]

My Lords, some believe that corporations should not be allowed to sue for libel at all. I think that that is wrong because although the feelings of a corporation cannot be hurt, it can be hurt in other ways, such as hurt to its reputation and trade.

In my Private Member’s Bill, I included a requirement of serious financial loss or likelihood of it, but I was not able to persuade Ministers or their officials that that was necessary because I think they took the view that it was quite clear as a matter of common law and therefore did not need to be spelt out in a Bill. Therefore, I am particularly enthusiastic about supporting these amendments which seek to do what I thought should have been done in the first place, as it were.

The problem of David and Goliath, to which the noble Lord, Lord Triesman, referred, which may apply to a very powerful claimant or a very powerful defendant, cannot be tackled by the Bill on its own but needs to be tackled holistically. Above all, it needs to be tackled by wise case management. I do not say this because I am sitting opposite three distinguished former members of the judiciary but because I have enough confidence in the judiciary and in the common sense of judges to know that if they are given enough encouragement—as I am sure they will be by the Master of the Rolls and through changes in the Civil Procedure Rules and so on—to grab a case at the beginning and to find ways of trying to equalise the unequal power of parties, they will do so. They can do so in a lot of ways that do not need to be in the Bill itself. They can do so through the application of the Civil Procedure Rules or by the application of common sense. For example, there is no reason why a judge cannot cap costs at the outset or why he or she cannot determine that there is an extremely powerful defendant or claimant and that the other party is unable to have equality of arms. Judges can also lay down procedural steps to be taken, including alternative dispute resolution and matters of that kind. In my view all that does not need to be legislated upon by Parliament because we are trying to find out what is sensible for the legislature and the judiciary to do. My view is that you lay down some general principles but do not interfere with the discretion of the judiciary in interpreting those principles.

[Lord Browne of Ladyton]

I apologise that I was out of the Room when the noble Lord started speaking, but I substantially agree with him. In fact I totally agree with him that the management of cases by the judiciary can make a significant difference to the length, complexity and cost; it can deal with all of those issues. Will he at some stage in our debate—it may not be appropriate to do it now, but we will get an opportunity—with his vast knowledge of the courts we are talking about here, and I do not have that knowledge, explain why that appears not to have been happening? What are the impediments to it? How can we address them? Has the holistic approach failed? If it has failed in his view up until now, where has it failed? That is the nub of the issue. He is conscious of the time that we are spending debating these issues—and so am I—and we may be spending our time debating the wrong things.

[Lord Lester of Herne Hill]

I should be careful what I say, because I shall now offend some members of what is known as the libel Bar. I am not a proper defamation lawyer, although I have dabbled in it. My dealings with my colleagues at the libel Bar have led me to conclude that the great technicality and obscurity of elements in the existing law are no fault of the judges but are very much the fault of my colleagues who have enjoyed very inward introspective legal practices that have added to the problems. In the framework we now have, it is extremely hard for the judiciary to cut out the nonsense that is there as a result of my fellow practitioners. I am sorry to defame a group of them, but there it is.

The other thing I wanted to say, which my noble friend Lord Faulks has referred to, is about the unsatisfactory idea of focusing on the company as though the company is a monolithic concept. If you focus just on the company, you leave out all kinds of other powerful bodies that are not companies at all: a trade union is a good example, although that has been dealt with in the case law in a particular way; many unincorporated associations; and many bodies that are very powerful NGOs, for example. The problem with the word “company” is that it is both underinclusive and overinclusive. It is underinclusive because it does not catch other powerful bodies that are not in corporate form, and it is overinclusive because the little dress shop company that my noble friend Lord Faulks has in mind—a one-director company—is in a completely different position from McDonald’s. That is why it is fact-sensitive and can be dealt with by the judiciary only on a case-by-case basis.

The amendments that we are now considering do not trespass on the courts in overreach. They are dealing with one aspect of the problem. The holistic approach involves case management, procedural rules and guidance in order to counter the kind of problems that the noble Lord, Lord Triesman, had in mind.

I am therefore enthusiastic about these amendments, but they do not and cannot deal with the whole of the problem.