Defamation Bill

Lord Geddes Excerpts

Monday 17th December 2012 Grand Committee

For the most part we have adopted the analysis, workings and suggestions of others and have applied them to the Bill on the basis that they will send a strong message and provide significant reassurance to those people who we seek to reassure by the revision of this legislation. Before sitting down, I would remind the Minister of a conversation in which Members on our Benches argued with him. I am glad that we seem at least to have contributed to the Government’s change of mind; namely, that the use of the county courts may be part of the answer to this problem. If some of the work we have commissioned bears fruit, and we can expose that work to the Committee, we may seek to amend the Bill at a later stage. Perhaps this is an issue that we can discuss as we have a little time between the beginning and the end of the Committee stage. We should look at whether we can make common cause on this issue, given that we have been told that the present Lord Chancellor favours this sort of development too.

[The Deputy Chairman of Committees (Lord Geddes)]

Somewhat unusually, the noble Lord begged to move his amendment at the beginning rather than the end of his words. However, I am prepared to take it that he does wish to move his amendment.

[Lord Lester of Herne Hill]

My Lords, it is true that my Bill had a similar provision in it, but it did not have a serious harm test. The big difference is that the Government’s Bill now has Clause 1. Therefore, one of the problems with the amendment is that it does not take account of the shift from my Bill, without a serious harm test, to what we now have. The second problem is that there is a right of access to justice guaranteed by Article 6 of the European Convention on Human Rights, and therefore we have to be extremely careful that we do not fetter that right with an excessive strike-out power. Probably that is not the most significant problem because the third problem concerns EU law and the Lugano convention. If noble Lords look at Clause 9, they will see that there is complicated stuff about:

“Action against a person not domiciled in the UK or a Member State etc”.

One of the problems—luckily I do not have to deal with this because the Minister will have behind him a whole battery of those who can—is that under EU law, one has to make sure that there is access to justice in this country in the defamation field, and that is because of a case of Shevill. As a result of that case, the European Court of Justice has made it clear that one must be able to bring one’s cause of action in defamation here in respect of a tort that has been committed elsewhere within the EU. Without making too much of a meal of it, I do not think the way that this is worded would pass muster under the Shevill test, and in any case it is not necessary because of the substantial serious harm test coupled with proper case management. Finally, the idea of the county court is something that I have always espoused. I do not think that needs much on the face of the Bill, but that is for another day.