Defamation Bill

Lord Mawhinney Excerpts

Tuesday 9th October 2012 Lords Chamber

[Lord Mawhinney]

My Lords, I, too, welcome the Bill. The Minister will recall conversations that he and I had about whether the Government were genuinely serious in wanting to legislate. We had been brought to the starting point on a number of occasions over past decades but had never actually managed to get the race under way. I pay tribute to him, and I want it to be a matter of record that I personally believe that without the intervention and leadership of the noble Lord, Lord McNally, this Bill almost certainly would not have emerged from the depths of government. I hope that he will accept that compliment; there may not be a regular flow of them through the whole process, but at least I start as I would like to be able to continue.

I thank my colleagues from your Lordships’ House who were on the Joint Committee. I am slightly nervous because four of the other five are due to speak in this debate after me. Nevertheless, I record my appreciation to them for their support, intellectual rigour and common sense.

I was pleased that the Minister started by affirming the Government's commitment to freedom of expression. That is hugely important and it is put under pressure in a whole variety of ways, not just in defamation but every day. I listened carefully to what the noble Lord, Lord Browne of Ladyton, said; he talked about the Bill being seen in a broader context. I am not sure if he used the word “context”, because it was the word “broader” that caught my attention. I have had the privilege of being in this Building, at both ends of the Corridor, for 33 years now. One of the most significant changes in that period has been the inhibition of freedom of expression through creeping political correctness. It is not necessarily defamation per se, but it is an insidious threat to freedom of expression and I encourage the Minister to remember that as we take the Bill through. We are dealing with one very important threat to freedom of expression, but we should not fall into the mistake of believing that it is the only one.

He and I have discussed Clause 1. The Government started on “substantial” and finished on “serious”. We decided that “serious and substantial” was even better. I noticed that the Government’s response to the Joint Committee report was that two words, “serious” and “substantial”, might make for confusion. May I tell my noble friend that “serious and substantial” was the testimony to our committee of the noble and learned Lord, Lord Mackay of Clashfern? He may not be good enough for the Government, but he was certainly persuasive enough for the Joint Committee. I encourage my noble friend to put “serious and substantial” back in to the melting pot. All of us agree that the bar needs to be raised, and that trivial issues and threats need to be disposed of quickly.

I turn to Clause 4 and the so-called Reynolds defence. I am not sure that the noble Viscount, Lord Colville of Culross, read all the evidence to our committee. If he did, he accurately reflected it in his speech. A lot of people said to us that they were not sure about these 10 different tick boxes that constitute Reynolds. We know that they do not all have to be ticked, but there is confusion out there. Increasingly the legal world and aggressive lawyers are moving to try to make all 10 a prerequisite. I hope that the Minister will think carefully about what the noble Viscount said. There are still tick boxes in Clause 4. From talking to the noble Lord, Lord Lester of Herne Hill, to whom this House is indebted for his work in this area, I know that there are other more general ways of writing Clause 4 that would totally remove any confusion from a tick-box-type regime. I hope that the Minister will look at that again before we complete the Bill in this House.

Clause 7 and with it Clause 6 seem to me big improvements on where we are at the moment. I say to my noble friend that it was the committee that came up with the idea of using peer-review of scientific and medical documents and theses as a way of getting that qualified privilege. I pay particular tribute to the noble Lord, Lord Bew, who led that conversation in the committee. I can tell the Minister that we were more nervous that qualified privilege might or might not be applicable to conferences. I do not think that because qualified privilege should be available to peer-reviewed articles that conferences automatically get lumped in to the same category. They require separate consideration. So I welcome Clause 7 and its associated Clause 6.

I want to turn to a couple of the issues that were part of the consultation aspect of the draft Bill and to pick up in particular one that the Minister himself picked up, which was the issue of cost. I am not sure that I have the fluency to relay to your Lordships in permissible language the strength of feeling around cost as a barrier to people getting their legal rights. That is very tricky because it is quite difficult to write legislation about costs, so the temptation—I think the Minister may have skirted around the temptation in his earlier comments—is to say, “We’ll think about it. We’ll devise ways and it’ll all be all right on the night”. Given how long we have waited for legislation on this area, I know he will understand that cost needs urgently to be addressed now. We made a number of recommendations. We think that in a defamation case, the speed of consideration of the preliminary issues by a judge is crucial. We were told that a lot of time and money is spent because neither side knows what individual words mean or how the judge will interpret them. Bills get racked up into astronomical sums when a meeting with the judge in the first week or two could take that cost barrier completely out of the system.

I understand that my noble friend and his colleagues get very nervous when the case management of judicial cases gets mentioned by anybody who is not a fully qualified judge, solicitor, barrister or, preferably, all three, but the rest of us have permission to express opinions, even if we are not in the judicial system, and I want to express an opinion. I know that government Ministers have the ability, in however these things are done, to let it be known to those in the judicial system who have responsibility for case management that government would be pleased if this were to happen or would be encouraged if that were to happen. This is an area that needs to be grabbed by Ministers. Of course, you are raising questions about the judgment of the judiciary. In one sense, I am not. I want it to be independent and to do its thing totally free of political interference, but I want it to do it in a way that is good for my former constituents. I want it to be friendly for the claimant. Running systems that do not challenge existing procedures but hold up the process, thus driving up the cost, is not good for my former constituents. There is a serious cost bar issue that needs to be tackled head on by judges making early decisions and somebody writing into the Civil Procedure Rules government-inspired guidance and perhaps duties in the area of case management that would bring defamation law back into the purview of the ordinary citizen of this country.

The second thing that the Joint Committee felt very strongly about was the need to put in requirements for judges initially to direct towards mediation and arbitration before a case goes to court. I have read government documents truthfully saying that the Government want to encourage out-of-court settlements, that going to court is the last thing they want and so forth. This is an opportunity to do something about it. The committee felt very strongly indeed. I have sided with the noble Viscount, Lord Colville of Culross, but I now have to disagree with him. The committee’s evidence was that a system of mediation and arbitration that led somebody to say sorry was perhaps one of the most effective ways of dealing with defamation available to us, yet the system is not set up to encourage people to get together and say sorry. I wish I had a piece of paper of the realm for every one of my constituents who has come to a surgery and said, “I don’t want any money. I just want them to say sorry”. The committee believed that there are times when the judge should have the power to require an apology to be printed, occasionally on the front page of a newspaper, depending on the seriousness of the case. I know the editor’s argument, “If the Queen dies that day, is she supposed to go to page 15?”. It is a spurious, nonsensical argument. All you need to do is say, “It has to be done in 72 hours”, or 96 hours, or whatever it is.

We need out of this Bill a system that is more geared to ordinary citizens and not to the exclusive ones. For the first time in my life, I am going to associate myself with a Labour Party slogan; we need a defamation system that is for the many and not just geared to the convenience of the few. There was a healthy discussion in the committee about the merits of statute law and common law. The judiciary likes common law because it makes the system more flexible; but ordinary people do not understand common law, whereas they can go and look up statute law. So, to the extent that this Bill will codify, it is in the interests of ordinary citizens because it makes the law more understandable.

The committee dealt with the question of trial by jury. There are very few jury trials now, but we were not persuaded that they should be done away with; therefore I welcome Clause 11. I need to say to my noble friend, not least out of courtesy to those who served with me on the committee, that while I have appreciated various clauses in this Bill, we all reserve the right to raise Joint Committee proposals, which the Government, without the opportunity of discussing them with us, have thus far rejected.

I will finish on one other big issue, which, if my reading of the Bill is correct, has not actually been dealt with. What happens on the internet moves very quickly, and the committee was persuaded that holding the providers to account was not the way to go forward. We welcome that decision by the Government. That having been said, what is on the internet falls into two categories: that which is by an identifiable person and that which is truly anonymous. The committee’s view was that if it is identifiable, the laws of the land as they apply should apply to the internet as well as to every other aspect. The issue of the anonymous is much more difficult, and is made more so by the fact that the internet is worldwide and we have to be careful. I can see nothing in this Bill that even touches on what you do about anonymous defamation. We in the committee were not certain, and we were very tentative, but I will tell the Minister what I would like. I would like a differentiation, a cultural change in this country, so that over the passage of time, if you do not put your name to it, it cannot be taken seriously. If you do not put your name to it, it cannot have any legal standing. That cultural change will not happen overnight. It may be a five-year or a 10-year process. However, unless somebody comes up with a better way of offering some element of defamation protection to those on the internet who prefer to behave anonymously, let us try to create a situation in which over time nobody takes it seriously and therefore nobody pays any attention to it. That is at least a form of protection. I am always happy to step down if the Minister comes up with a better solution, though I do not see it in the Bill.

I welcome the Bill and congratulate the Minister on it. My sense is that it is not party political. I wish him well in getting it through the House speedily and on its way as its implementation is necessary to improve our defamation procedures.