Assisted Dying Bill [HL]
Lord Mawhinney Excerpts(9 years, 4 months ago)
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Lord Howard of Lympne (Con)
My Lords, I am sorry to disagree with the noble Lord, Lord Low, but I do so for the following reason. I have previously declared my interest as chairman of Hospice UK, the umbrella organisation for hospices in this country. The hospice movement has no collective view on the Bill, so inevitably I speak for myself, not for the hospice movement, but I know that the point that I am about to make is widely shared within that movement. To put the matter at its lowest, if the Bill becomes law, the challenges which the hospice movement and the people who work in it will face will be much more complicated. It is therefore essential that clarity is achieved.
The noble Lord, Lord Pannick, in his characteristically powerful speech, said to your Lordships that anyone who reads Clause 1 can be in no doubt about what it means, and he read out Clause 1. That would be a very persuasive argument in a court of law, but I fear that most people who will be faced with the terrible decision which the Bill will legalise will not have read Clause 1. That argument does not advance the issues before your Lordships on the amendments. I believe that clarity is essential, and can best be achieved by agreeing the amendment in the name of the noble Baroness.
Lord Mawhinney (Con)
My Lords, as one who has signed several amendments, I will say that I did so not because of conversations with other noble Lords but because I read the Bill. The more I read, the more I was puzzled by its title. I wish that I had thought of the simile that the noble Baroness, Lady O’Neill, used when she talked about the similarity with truth in advertising. I came to the view that the Bill was about assisting suicide rather than assisted dying. I was stimulated along that thought process by two things. One was the speech of my noble friend Lord Howard at Second Reading when he talked about the work of the hospices. I have recently had some involvement with a hospice in Peterborough. The second was correspondence with doctors who work in the palliative medicine field. Both things created in my mind the vision that the noble Lord, Lord Winston, and the noble and right reverend Lord, Lord Harries of Pentregarth, gave of assisted dying being a palliative feature of making the process more comfortable for the patient.
I am just smart enough never to want to tangle on legal matters with the noble Lord, Lord Pannick. I noted the points that he read to us from the Bill in support of his contention that the Bill is perfectly clear. The second thing that caused me to come to the conclusion that I should put my name to the amendments was Clause 4—so let me read just a little bit to your Lordships. It states:
“The assisting health professional must remain with the person until the person has … self-administered the medicine and died”.
Where I come from, I guess that they would call that suicide. The noble Lord, Lord Brennan, introduced the word “euphemism”, which has been at the heart of a lot of the speeches that we have heard. It has taken the form of clarity in telling the truth. I have to say that in all honesty I do not like the euphemism attached to the wording of the Bill when it comes to this point, and I was happy to add my name to the amendments tabled by the noble Baroness.
Baroness O’Loan (CB)
My Lords, by convention I must apologise to the House: I was unable to attend Second Reading as I had had major surgery 10 days before. I have listened to the debates and the element of compassion is very clear in all the Members of your Lordships’ House—but compassion is not enough. The Bill is introducing a significant change that is secured by the terminology that it adopts. That is why it is so important that we support the noble Baroness, Lady O’Neill, and the other noble Lords who put their names to this amendment.
The BMA stated yesterday that skilled and compassionate palliative care with good communication and patient involvement can help many patients’ fears of death. By focusing on assisted dying as a solution to people’s anxieties about end of life care, society is having the wrong debate. If we pass the Bill, people will know that there will be circumstances in which we as a society have decided that we want people to be able to commit suicide with assistance from the medical profession. The Bill provides that people must be assisted to commit suicide in specified circumstances; it does not provide that they must be assisted to die.
I have seen close family members die of motor neurone disease and cancer. I know that they were helped as they came to death by the loving care of good doctors, professional and expert nurses and other medical professionals, and by the appropriate application of palliative care. The Bill is about people who want to take their lives being provided with the wherewithal and being enabled by the medical profession to do so, and it is right that the content of the Bill should reflect that reality. One of our duties as legislators is to try to ensure the greatest possible clarity as we make laws—and it is for that reason that I support the amendment.
Lord Dobbs
That is precisely the sort of clarity that the proponents of the Bill wish to bring about. We are trying to change the law and any change in the law involves in the short term a degree of confusion. But once the Bill has been passed, as I know it will be eventually, I believe that the country will clearly understand what this is about. If we look at the way that this is being operated in other parts of the world, such as Oregon, there is no confusion.
Lord Mawhinney
I am grateful to my noble friend but what does he make of the fact that it is the movers of the Bill who have insisted on having “self-administered” in Clause 4, which I read earlier? Does self-administered not mean suicide?
Lord Dobbs
Self-administered, when surrounded by one’s family and registered nurses, with the assistance of doctors and under the approval of a judge, is not the same situation as the noble Lord suggests. He mentioned earlier that he is usually smart enough not to tangle with other people. I am usually smart enough not to tangle with him on any matter, but on this I disagree with him profoundly.
Please allow me to finish, because I do not want to delay the House. We all know that we have to die. That we do know and, for many of us, it will be the most challenging point of our lives and a time in which we need assistance and support. The deaths covered by the Bill are not only inevitable but imminent. The noble Lord, Lord Carlile, used the phrase “dying because they wish to do so”. It is not dying because they wish to do so but because they are going to die and imminently. To term those inevitable deaths as suicide would make them even more difficult and distressing. I beg the House not to do so.
Assisted Dying Bill [HL]
Lord Mawhinney Excerpts(9 years, 10 months ago)
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Lord Mawhinney (Con)
My Lords, we are all indebted to the noble and learned Lord, Lord Falconer, for introducing this Bill. I say that as someone who is not in favour of it and will do his best to see it amended and subsequently defeated. He is right to identify the fact that this is now a major public issue that needs to be taken seriously and to be resolved. I came much later than he did to the view that this Bill should go into Committee. I initially thought that we should take care of it today, but I am persuaded that it should go to Committee stage to be examined. The danger of this Bill lies in the detail, not in the generality.
Not for the first time, my noble friend Lord Tebbit and I have similar thoughts. When I read about the safeguards and how important and how good they would be, my mind also turned to abortion and the 1967 Act. Exactly the same arguments were deployed then as are being deployed now in relation to doctors. In that case, seven grounds had to be used. The Library tells me that in 2013 there were 185,000 abortions in England and Wales, and that 36% of them were not for the first time. As regards the six months proposal, my mind turned to the Lockerbie bomber.
We have twice been told that more than 70% of the public think that this is a good idea. But we have not yet been told that in the very same polls, 47% thought that it would lead to abuse of elderly and people who are dying. That abuse led me to my second thought. I will not repeat stories from letters that we all have received, except for one paragraph from a lawyer, whom I do not know, who suffers from multiple sclerosis. He wrote:
“Vulnerable people, especially those with progressive conditions, can feel a real burden on the people around them. Diagnoses can be very frightening and isolating. Such individuals will undoubtedly feel pressure to end their lives if Parliament decides to pass this Bill”.
Last year, my beloved mother died. She spent the last 18 months of her life in a home. She died of Alzheimer’s and increasing dementia. She kept telling us that she was a burden. I like to think she did that in the confidence of knowing that our love for her was such that, however big the burden, it was but nothing compared to the love that we shared, and had shared, throughout all our lives. I thought to myself, if my mother thinks she is a burden, in her context and with the love of her family, how many others will think that they are burdens and will not be met by similar support and love?
The one thing that is missing from this debate—and I was glad the most reverend Primate the Archbishop of York spoke about it—is that there is no philosophy of life in this Bill. I am a Christian. I have always tried to take my faith seriously. I believe that life stems from and is a gift from God, and that this belief, widely shared, should govern our views on the end of life as it pervades the thoughts of many at the wonder of birth.
Defamation Bill
Lord Mawhinney Excerpts(11 years, 4 months ago)
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Lord Mawhinney
“( ) After paragraph 8 insert—
“8A Communication between a Member of Parliament and any constituent.””
Lord Mawhinney
My Lords, although two days have passed, this is the first debate following that on Amendment 31, which was moved by the noble Lord, Lord Hunt of Chesterton. After we had adjourned, a thought occurred to me which I probably should have put on the record in that debate. In all truth, it did not occur to me then; but it has since, so I wish to do that. In col. GC239 of Tuesday’s Hansard, in summing up his amendment, the noble Lord listed a number of institutions with which he had been in communication in framing it. One of them was the Institute of Physics, which he said has 45,000 members. It was not until I was on my way home that I realised I should probably have said that I am an honorary member of the Institute of Physics. I suspect that does not even remotely influence anything but, for the record, I make that clear.
As regards Amendment 39, I want to point out that it was drawn to the Joint Committee’s attention that when a constituent speaks to a Member of Parliament, that Member, if he then relays the information given to him or her in the House, has privilege as far as Parliament is concerned. However, there was a question mark as to whether the communication between the constituent and the Member of Parliament was also covered by privilege. It seemed to the Joint Committee that it was extremely important that it should be covered by privilege because at the very heart of our democratic process is the concept and the reality that a Member of Parliament acts on behalf of his or her constituents. That ought not to be mitigated or reduced by pressures that would rule out things that the constituent could say to his or her Member of Parliament.
We were also told that the Government intended to bring forward legislation on privilege. We all understood that and the committee took the unanimous view that—how do I put this delicately?—this might be a long, drawn-out process, which started with ministerial statements some time ago that the Government intended to legislate in this area, and various steps have been taken along that path. There was no great confidence that we would soon reach the end of that path. Unanimously, the committee decided to recommend to the House and the Government to clarify the position and to remove any doubt that what is said between a constituent and his or her Member of Parliament should also be covered by privilege. The argument was raised by one witness that these days you cannot necessarily trust every Member of Parliament to behave appropriately in such circumstances, to be careful in the use of what would probably be highly contentious information and to use it in such a way that would be in keeping with the well established standards of the House of Commons.
The Joint Committee took the view that an occasional misuse of information by an individual Member of Parliament was not sufficiently important to offset the fundamental issue that we were addressing. Our thoughts are encapsulated in this amendment, which I beg to move.
Lord Lester of Herne Hill
My Lords, I rise in support of the amendment and what I will say briefly has some relevance to my later Amendments 43 and 44, dealing with parliamentary privilege. I am very sympathetic to the idea explained by the noble Lord, Lord Mawhinney, that we should not wait for some future legislation as a result of the consideration of parliamentary privilege generally, but that where there is an issue that properly falls within the scope of defamation and nothing else, we should take advantage in this legislation to make the necessary amendments. I regard this as one necessary amendment for the reasons given by the Joint Committee on the draft Bill.
The Government stated in their response that this was best left to the forthcoming Green Paper and draft parliamentary privilege Bill. The Green Paper concluded that while some forms of correspondence between constituents were already protected by common law qualified privilege, it would be inappropriate to extend qualified privilege to all forms of correspondence as it would run the risk of potentially encouraging correspondence to MPs intended to circumvent court orders and damage the privacy or reputation of third parties. The Government expressed the view the it would better to continue to enable the courts to determine the boundaries of privilege in individual cases.
I understand that and it is an objection to a wider issue than liability and defamation procedures. It is all about breach of privacy and contempt of court. However, given that the amendment of the noble Lord, Lord Mawhinney, seeks only to provide qualified privilege in defamation proceedings and that there seems to be agreement that it is already covered by the common law in appropriate circumstances, I see no good reason in principle to oppose it. I note that the Libel Reform Campaign supports it. It suggested adding “Private” at the start of the amendment to distinguish between letters and e-mail and social media.
Lord Mawhinney
My Lords, I think my noble friend in his careful reply hinted vaguely that I might have been motivated by a touch of cynicism. I am surprised about that given how long this has been in the hopper. A second Joint Committee has now been established and part of its job will be to review the findings of the first Joint Committee. Were I to be accused of cynicism, it might more usefully be applied in those circumstances rather than simply on the basis of time elapsed.
It is probably a somewhat unusual set of circumstances for a Joint Committee to be established in part to review decisions taken by a previously properly established Joint Committee, and I look forward to the potential for an exciting debate in your Lordships’ House about which of the Joint Committee reports the House gives most credence to were the two reports not to be identical.
As regards the question raised by the noble Lord, Lord Phillips of Sudbury, my understanding is that malice is always outside qualified privilege. As regards the question raised by the noble Baroness, Lady Hayter, I was careful to draft this amendment in general terms. I did that in part because as a former Minister I know well that if the spirit of the amendment is adopted, officials will always find an opportunity to tell the Minister that the amendment is not quite correctly drafted and that he needs to do this, that or the other. They do that extremely well, and I have been the beneficiary on many occasions, so I am not being in any sense rude or aggressive. I am simply explaining that it did not seem to me to be worthwhile to try to think up every set of circumstances. If the Minister accepts the principle, when the Bill emerged from Report, it would be drafted in the way that would be most sensible as far as the Government were concerned. On this issue, I guess that would be most sensible in terms of the House as well.
The issue is that day in, day out constituents correspond with their Members of Parliament and there ought not to be an inhibition on that. Personally, I would probably restrict it to the direct communication between the constituent and the Member of Parliament because it would be that on which the Member of Parliament would stand up and address the House of Commons. Anyway, the Member of Parliament has to exercise some judgment about what he or she wishes to say in the Chamber. I do not think our Joint Committee—I look to the noble Baroness to correct me if I am wrong—was trying to be picky to the last detail. We were trying to persuade the Government to accept this principle, which is why I worded my amendment simply to get the principle in front of my noble friend. I have heard what he said and have some sympathy, but do not feel encouraged that the Government’s timeframe will be such as to meet the urgency that I think the Joint Committee wanted him to feel on this subject. Of course, I will be happy to withdraw the amendment but, in doing so, I ask my noble friend to give it serious thought and perhaps to bear in mind that, were this to go into the Defamation Bill, when the Government’s all-singing, all-dancing piece of legislation comes forward, this clause could at that point be taken out of that Bill and put in to the new Bill so that all defamation was in one place. I beg leave to withdraw the amendment.
Lord Mawhinney
My Lords, my Amendments 41 and 42 have been bracketed with this amendment, and I would like to speak to them at this point. I have great sympathy with what the noble Lord, Lord Phillips, has just said about auditors, and I hope attention will be paid to that.
In Clause 7(9) the Bill has:
“After paragraph 14 insert … a fair and accurate … report of proceedings of a scientific or academic conference”.
The Joint Committee spent a lot of time talking about this. It felt strongly that peer-reviewed articles were certainly right to be covered—and I would like to pay particular thanks to the noble Lord, Lord Bew, for his considerable help in helping the committee understand the issues on this particular matter—but it was much more nervous about the inclusion of conferences. I should add that from 1968 to 1984 I was an assistant professor, a lecturer and a senior lecturer in universities in the United States, and in this country and in those capacities I attended many academic conferences, as has the noble Lord, Lord Bew, and other noble Lords.
“Conference” is a very widely drawn word. Having attended the world conference on radiation biology and radiation physics, I would have no difficulty in saying that it qualified for special consideration in the context of the Bill. On the other hand, and I speak carefully, conferences are called by a variety of people for a variety of reasons, not all of which deserve the sort of protection that we are envisaging in this legislation.
The Joint Committee came fairly firmly to the view that there ought to be protection. The wording “scientific or academic” included medicine. There were queries as to why medicine was not specifically mentioned but we thought “scientific or academic” was sufficient to cover all the academic disciplines.
We were very strongly of the view that there ought to be protection. We were equally strongly of the view that conferences ought not to be included unless my noble friend intends on Report to define, delineate and describe what the Government mean by an academic conference, or unless he wishes to add regulations about the reviewing of contents of conferences to bring them into line with peer-reviewed papers.
Amendment 42 adds to peer-reviewed papers coverage for material in archives that is of academic importance and subject to the ground rules specified in the particular amendment. The effect of the two amendments together is strongly to endorse peer-reviewed scientific and academic papers, to remove the Government’s intention to include conferences and to add authentic archive material.
Lord Bew
My Lords, I rise to support the amendment moved by the noble Lord, Lord Mawhinney, and to say that he has accurately recalled the discussion and the feeling of the Joint Committee. My sense is that we actually did get differing evidence. For example, I seem to recall that the Master of the Rolls was sceptical about extending privilege to academic conferences for the reasons that the noble Lord, Lord Mawhinney, has given us. On the other hand, we had a former Lord Chancellor, for example, who took the view that it was right to extend privilege. So there was a genuine difference of evidence from significant people. We were certainly much keener to protect peer-reviewed journals than we were to offer a new measure of protection for conferences for the simple reason that all of us who are academics have attended conferences that we are not sure would deserve this privilege. The Government may well have things to say to expand their thinking to produce a more enthusiastic response—on my part, at any rate. However, it is worth saying that they were somewhat cagey on this matter.
Perhaps I may say very briefly, referring to the privilege matters discussed and to what is about to come, as the one person who was a member of the Joint Committee on Parliamentary Privilege and of the Joint Committee on the Defamation Bill, that I am finding the discussion so far extremely helpful, I expect to find further discussions even more helpful, and I am learning a lot.
Lord McNally
You can see, Lord Chairman, that this is a very interesting Committee. Amendments 41 and 42 would alter the way in which the Bill extends qualified privilege to certain types of material. Again, I was interested in the interventions and understand some of the concerns expressed. We thought about whether we should try to define “conference”, and perhaps we will have another think about that. If anyone has a suggestion, they know my address.
As the Committee will know, we had a lot of discussions with editors of a number of scientific and academic journals. They were keen to stress that qualified privilege for peer-reviewed articles was seen as the most important priority by them. I very much agree with the point that the noble Baroness, Lady Hayter, made in her intervention. We should hold close to the protection of a proper peer-review process in the changes that we are making to the law.
As the noble Lord, Lord Bew, indicated in his recollection to the Committee, these editors and others were not opposed to the extension of qualified privilege to fair and accurate reports of proceedings of scientific and academic conferences, or to fair and accurate copies of, extracts from or summaries of matters published at such conferences. Our impression was that the scientific community has welcomed this extension.
We do not agree with this amendment. The protections set out in subsection (9), along with the protection in Clause 6 and a number of other measures in the Bill are an important step forward and reflect our aim of ensuring that scientific and academic debate is able to flourish.
Lord Mawhinney
We are all agreed on the importance of peer review. As my noble friend is going to think further about conferences—he has just said that he will—will he do so in the context of peer review? That is the principle that we are all hanging on to. The Joint Committee could not find to offer to him a satisfactory way which enshrined peer review in the context of conferences, partly because peer-reviewed papers are peer reviewed ahead of publication. Peer review in conference would be subsequent to whatever was being said. Will my noble friend at least assure the Committee that when he reflects further on conferences, he will do so specifically in the context of peer review?
Lord McNally
Most certainly. That was the point that the noble Baroness, Lady Hayter, made, with which I heartily concur. It is interesting that when the Bill was debated in the other place, the move in the direction of conferences and other gatherings was warmly welcomed. I will reflect, but these proceedings will of course also be read by the scientific community. Perhaps it will help me. I have made this point time and again: I want to be able to look the scientific and academic community in the eye and say, “Look, this is the best that we can do in giving scientists and academics the maximum of freedom to indulge in proper debate and criticism in their areas of expertise”. I certainly accept that suggestion by my noble friend Lord Mawhinney. There has been a general welcome for our attempt to extend this more widely than the very narrow context of peer-reviewed articles in magazines of repute.
Amendment 42 would extend qualified privilege, subject to explanation or correction, under Schedule 1 to the Defamation Act 1996 to peer-reviewed articles and fair and accurate copies and reports of material in an archive where the limitation period for an action against the original publisher of the material has expired. In speaking to the amendment to Clause 6 tabled by the noble Lord, Lord Hunt of Chesterton, I expressed concern about extending the protection for peer-reviewed material more widely than in respect of articles in scientific and academic journals. This amendment would extend that protection even more widely to any peer-reviewed material, wherever it appears, and, as a result, would serve only to increase the risk of the defence applying in instances where the peer-review process had not been applied in a sufficiently robust way.
In respect of extending qualified privilege to archives, this is something that I know the Joint Committee on the draft Bill, chaired by the noble Lord, was in favour of. We indicated in the government response to the committee that we would consider this proposal. However, after considering the position further, we came to the conclusion that extending qualified privilege to archives would potentially make the defence available to a very wide range of material. There would also be considerable difficulties in defining what types of archive should or should not be covered. We believe that this would risk not providing adequate protection for claimants, and therefore we do not consider this amendment to be appropriate. There is no generally agreed definition of what constitutes an archive, and this amendment would potentially cover a very wide range of material.
I am have to say again—and I am not opening any gates for reconsideration on this—that I was, until a few weeks ago, the Minister for the National Archives. I am extremely proud to have held that position because it is one of the jewels in our crown in terms of a national asset. As I said to the noble Lord, we are again worrying about where to draw the line. On this occasion, we draw the line, as far as he is concerned, on the wrong side of his amendment, but I hope he will agree to withdraw it.
Lord Mawhinney
“( ) A person domiciled in England or Wales may bring an action for defamation in respect of publication by a person to whom subsection (1) below applies provided that they can demonstrate that such publication has caused them serious and substantial harm.”
Lord Mawhinney
My Lords, politics is frequently described as the art of the possible, but it is also described as dealing with truth and people’s perception of the truth, and the latter is frequently harder than the former for politicians to handle.
I was reminded of this particular issue because there have been a number of very high profile legal cases called, mainly in the tabloid press, libel tourism. Because they have been high profile and involved lots of money, a perception has been created that this is a major problem. In fact, though, the evidence given to the Joint Committee was that it was not a major problem, in the sense that it happened not frequently but occasionally. However, the perception of it being a major problem probably meant that it needed to be addressed, and the Government, in my view and that of the Joint Committee, have sought to address libel tourism in Clause 9. My amendment would clarify that if you are resident in this country you could take out legal proceedings wherever the libel was alleged to have taken place. This country has a reputation of being a friendly place in which to bring major libel cases, but in many of the few they have precious little to do with England and Wales—and “precious little” is probably a euphemism for practically nothing.
We as a Committee were keen to ensure that, in defining what you could not do, we did not raise any question about what a bone fide resident in this country could do, irrespective of where the libel took place, so long as the UK resident could show that he or she had been seriously and substantially harmed. If something defamatory was said in a far-flung part of the world and no one in this country ever heard about it, that would not pass this test. On the other hand, it would pass the test if there was perceived to be serious harm done in the perception of people in this country. The amendment is not complicated, nor does it seek to persuade the Government to go into new territory that they do not want to go into. It is with the grain of the Government’s thinking but would clarify that trying to address libel tourism does not diminish the right of residents of this country, subject only to the harm test.
Two other amendments are linked with this one. On Amendment 49, it is quite clear from the Government’s Bill that the court has to make a decision about what is “appropriate”. What is “clearly appropriate” will therefore fall into the same category. My sense is that “clearly” is a higher level than “appropriate”. A court is perfectly capable of deciding “appropriate” and “clearly appropriate”, and at this stage I am ambivalent until I hear from the Minister why he thinks this is a good or bad idea, because I can see arguments in both directions.
Initially, I had a sympathetic reaction to Amendment 50A. However, I started to think a little more about what the words say. In our law we do not often require people to demonstrate that they have funds available before they begin proceedings; indeed, if that were a general tenet of the law of this country, Members of Parliament would have a lot less to do because constituents would stop coming to them and saying, “I won a law case but the person doesn’t have the wherewithal to meet the bill”. Indeed, I have been in that situation myself.
I am not entirely clear how you would prove to the court’s satisfaction that not only did you have the money but it would still be there when the judgment was made. Having the money before you start and still having it when you finish are, conceivably, two entirely different issues, so I have some hesitation about the amendment of the noble Lord, Lord Singh of Wimbledon. Again, I would also be interested to hear what the Government have to say. I beg to move.
Lord Phillips of Sudbury
My Lords, I speak to Amendment 49 in my name. I believe that Clause 9(2) goes too far in requiring a court to be not merely satisfied that England and Wales is the most appropriate place to bring an action but clearly satisfied. It is not clear to me quite what that would mean in any event. Is it applying a criminal law test of “beyond reasonable doubt”? I think it loads the dice against a person who is not domiciled in the UK.
Lord Mawhinney
What the clause actually says is,
“satisfied that … England and Wales is clearly the most appropriate place”,
not,
“clearly satisfied that … England and Wales is the most appropriate place”.
Would that make any difference to his argument?
Lord Phillips of Sudbury
I am obliged to my noble friend for picking up my slackness. No, I do not think it would. The wording, as the noble Lord, Lord Mawhinney, just said, is:
“England and Wales is clearly the most appropriate place”.
I think it is quite enough to leave it to the judge to decide whether it is the most appropriate place. That is a strong test in itself and, as I say, I do not think it is right to load the dice in this regard. In my view, what is provided for in Clause 9 goes far enough to stop the most undesirable cases of libel tourism.
On Amendment 50A in the name of the noble Lord, Lord Singh of Wimbledon, I am afraid I agree with my noble friend Lord Mawhinney. It would make the position of the poor litigant wanting to protect his or her name and reputation even more unequal than it already is. We know that legal aid does not apply to defamation proceedings and to have a provision that requires him or her to satisfy a court that they have resources to meet costs arising from an unsuccessful action means that at least half the population will never be able to protect their reputation, and that cannot be right.
Lord Mawhinney
My Lords, I listened carefully to what my noble friend said, and he generated in me a little surprise; I was under the impression that he and I were singing from the same page of the hymn sheet on this one. I shall suggest to him why he and I may appear to be thinking differently and invite him to reconsider one thing that he said.
I incorporated into the amendment the view of the Joint Committee about “serious and substantial harm”. We have already debated that and the Government have a view. If their view turns out to be as we suspect it to be from this debate, I am not chasing on “serious and substantial”; I used it merely because the Joint Committee did, but I am not sure that anyone is going to get too precious about that aspect of the amendment.
As I said at the beginning, the amendment was designed to protect those who live in this country so that they would not get excluded. My noble friend chose to interpret that—perfectly correctly; I have no complaint—by citing a Russian oligarch who lived here and who had been libelled in Uzbekistan, I think he said, and the damage was in that country.
This is the point that I would like my noble friend to think about: if you take this amendment as a freestanding amendment, it allows itself to be interpreted in the way in which my noble friend interpreted it. However, if the amendment became part of the Bill then it would sit just a few lines above Clause 2, where the court has to make a decision as to whether this is the most appropriate location for a legal case to be heard. Given the example that my noble friend used, an English court would be asked to decide whether or not this was the most appropriate place for a Russian oligarch living in Kensington to take action against someone who slandered or libelled him in Uzbekistan. I yield to no one in my admiration for British justice and I am guessing that, if you put together the amendment and Clause 2, judges would say, “No; the fact that you are here allows you to come and ask us, but it doesn’t mean that this is the most appropriate place for you to do this”. When my noble friend says that he will reflect further on this debate, I invite him to look at his example against the pairing of the amendment and Clause 2, which would both be an integral part of this overall clause, and invite him to accept that Clause 2 has a mitigating effect on the amendment. If he buys the general argument that I am encouraging him to think about, and if he says that in order to clarify this we need to tweak the new amendment to make crystal clear what we are trying to say, then I am free and easy with that; in fact, I would be delighted were he to do so.
Given that caveat, because I think that we are not very far apart and that a drafting tweak might clear that up, I thank my noble friend for his response. I note that he is nodding in thoughtfulness—I attribute nothing else to him other than thoughtfulness—and in that spirit, I beg leave to withdraw the amendment.
Lord Lester of Herne Hill
I am very grateful to the noble Lord, Lord Browne, for the way in which he has just presented the amendment. I do not have the Booksellers Association as my client, although I did some time ago meet it in order to discuss the problem which has been eloquently described. I have, however, acted for Amazon US and Amazon UK and I would like briefly, because it harps back in a way to Clause 5 and the internet, to link that with what we are now discussing because it is quite important. If I walk into Daunt Books in London to buy a book, I am reasonably clear that if the bookseller has no reason to believe that the book is defamatory, the bookseller would have a defence under the defence of innocent dissemination as it was before 1996 and probably under Section 1 of the 1996 Act as well. I agree that there is some lack of clarity about the effect of Section 1 on the common-law defence in that situation.
The problem becomes much more acute for the international bookseller who is selling via the internet. The case that I was once in—thank goodness it never led to an argument because it was settled—is a very good example. A book published in the United States completely wrongly and in a defamatory way attributes to police officers in Northern Ireland the killing of Catholics. It is completely disgraceful and defamatory. So the police officers go against the author who is made bankrupt. They go against the publisher who is made bankrupt, so they have no recourse at all. So they go against the international bookseller on the basis that it has sold a defamatory book on the internet. When we buy that on our computers online, whether from Amazon US or Amazon UK, that is an act of publication. There is therefore publication by the bookseller of something that is defamatory and therefore Amazon is liable. Amazon, shipping the book from its warehouse in California, has absolute immunity under US law. Amazon does not have immunity under UK law, nor should it, and the same applies to Amazon UK.
The practical problem is: what is the position of the international bookseller? It can try to rely on Section 1 of the 1996 Act. The problem with that is that it is quite narrow and very unclear as to how it applies. It can try to rely on the e-commerce directive and to give new meaning to Section 1 of the 1996 Act. It can try to rely on Article 10 of the European Convention on Human Rights to give clarity as well. But all I can say is that some years ago I had a merry time—well paid—in trying to work out the answer to the puzzle that I just described.
If something like Amendment 50C were included, and the noble Lord, Lord Browne, is quite right in saying how difficult it is to clarify some of this, it would have benefit not only for the home-grown London bookseller but for the international bookseller in trying to resolve what would otherwise be extremely complicated problems that I have probably failed properly to explain.
Lord Mawhinney
If peer-review is one of the principles that we want to hang on to, combating chilling effect should be another that we want to hang on to. I have no idea, and I am not competent to judge, whether the wording of the amendment tabled by the noble Lord, Lord Browne, is right and precise, but combating chilling effect ought to be deemed to be so.
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 Mawhinney
“( ) A court may only order a trial with jury in a case involving a senior figure in public life and when that person’s credibility is at stake.”
Lord Mawhinney
My Lords, there is no need to take any time to establish that all of the members of the Joint Committee believe in the importance of trial by jury. That was not the issue. The issue was whether jury trial was appropriate in defamation cases. Most of us went into the committee being unsighted, and the evidence was very quick and almost unanimous: judges had in effect already decided that jury trials were probably not the way to go in defamation cases. A number of witnesses told us that there had not been a jury trial for defamation or libel in the past 18 months to two years; the practice had largely ceased. We were moving to a position of saying that we endorsed the present situation.
Then we got evidence from the editor of the Guardian. In his evidence, he said something which caused us all to perk up. He referred back to the case of the Guardian against Jonathan Aitken. He said that he and his newspaper had wished that that trial had been conducted in front of a jury. He made the case that occasionally, perhaps even exceptionally, people in public life needed to be tried in front of their peers simply because of the public perception and ramifications of someone in high office being in that position. He specifically mentioned judges, Members of Parliament and, if my memory is right, very senior people in the Armed Forces, where the credibility of the public and the individual were such that they needed to be tried in those circumstances. However, other than that, he said that what the judges had already established was the way to go. All I have sought to do in this amendment is accurately to reflect our evidence. I hope that I have done so faithfully. I beg to move.
Lord Brown of Eaton-under-Heywood
My Lords, there can be few occasions, particularly at five past five on a Thursday afternoon, when one feels entitled to tell, so to speak, a story from one’s own experience. However, I believe this to be just such an occasion.
Over a quarter of a century ago, I tried, with a jury, the case of the late Robert Maxwell suing Private Eye. It was a defamation case. The burden of the central complaint that Maxwell was making was that Private Eye had published a piece which insinuated that he had tried, by means of free holidays and the like, to bribe the then leader of the Labour Party—Neil Kinnock—to recommend him for a peerage: plus ça change. The case was opened—as all these cases invariably are—at great length and the witnesses started to go into the witness box. I came back from lunch on the fourth day to find a note from the jury which read, “Please, sir, can you tell us what a peerage is?”. On the fourth day of a case all about peerages they did not know what that meant, which did not increase my faith in, and admiration for, juries.
A later case over which I presided in the Court of Appeal was that of Grobbelaar, who secured a very large award from the jury—I cannot remember the exact amount but I think that it was about £100,000—on the basis that he had been libelled by a newspaper which had accused him of match fixing. Noble Lords will remember that he was a Zimbabwean who I think played for Liverpool at the time. We eventually held—we were upheld in this by the Appellate Committee of the House of Lords—that that was a perverse award. Again, that was not greatly to the credit of juries. Therefore, I confess that I am very strongly opposed to juries in defamation cases, not least when important people—celebrities—are involved. Juries tend to be mesmerised by celebrity. Indeed, that is true of defamation cases and there are many other instances—it is perhaps invidious to mention them—where that can be seen to be so in the libel context and perhaps more widely.
Under Clause 11 as drafted, defamation cases will be tried without a jury unless a court orders otherwise. The matter is left to the general discretion of the court. Obviously, only very exceptionally would it be thought a good idea to have a jury trial with all the disadvantages of such a trial in terms of length, expense, unreasoned judgment and all the rest of it. If I may respectfully say so, the problem as I see it in this proposed amendment is that it is, first, too prescriptive and, secondly, may well encourage the use of jury trial. In the original report of the Joint Committee, it was recognised in paragraph 25 that it would be undesirable to restrict this discretion—that is, the court’s general discretion—although it is fair to say that it went on to state that it should be possible to outline general principles. The general principle later referred to was that the circumstances in which the discretion should be exercised,
“should generally be limited to cases involving senior figures in public life and ordinarily only where their public credibility is at stake”.
The first problem with the proposed amendment is that it limits the discretion of the court because it states that:
“A court may only order a trial with jury”,
in this class of case, and there may be others. For that reason, it also raises in acute form the definition problem of deciding who is properly to be regarded as a senior figure in public life and when that person’s credibility is at stake. Perhaps more fundamentally, the amendment raises the very concerns that the Government in their response to the Joint Committee report refer to in paragraph 62. It was there said that:
“Concerns were expressed that including guidelines in the Bill could be too prescriptive and could generate disputes”.
I have already alluded to that as one of the problems. It goes on to say that:
“There would also be a risk that detailed provisions setting out when jury trial may be appropriate could inadvertently have the effect of leading to more cases being deemed suitable for a jury than at present”,
which would work against the committee’s view, one that the Government share, that jury trials should be exceptional. If this clause is amended as proposed, there is a risk that if somebody who claims to be a senior figure in public life whose credibility is at stake wants a jury or, indeed, the defendants to a claim by someone who is arguably within that description want a jury, then initially you have a dispute and a debate as to whether it is a case where it is permissible to have a jury and, if so, the suggestion would be that Parliament would have implicitly sanctioned the thought that that is indeed a case where it is appropriate, whereas I would suggest through my earlier illustrations that not even in that case would it generally be appropriate for a jury trial. I would respectfully oppose the amendment.
Lord McNally
My Lords, perhaps I should say at the outset that both my party and the coalition Government are more attached to jury trial than perhaps some of the comments about the quality of juries in this debate. Part of the coalition agreement is about our support for jury trial. However, we as a Government also accept the strong arguments made by the Joint Committee. The contributions from my noble friend Lord Mawhinney and the noble Baroness, Lady Hayter, put this amendment in context, but for me the extremely helpful intervention by the noble and learned Lord, Lord Brown, removes any reason for lengthening this debate. He explained clearly the dangers of going along the lines of the amendment. We believe that under the terms of Clause 11 as drafted, the courts will have a wide discretion in deciding whether jury trial is appropriate.
I take the point made by the noble Baroness, Lady Hayter, in her closing remarks. Part of what we are hoping is not to open the gates to more jury trials or to create any special class of person who should be put into jury trials. Much of what we are hoping for, as a result of this legislation and other actions taken, is much more robust case management by judges to make cases more easily and cheaply dealt with. However, I have to tell my noble friend that, although I understand his loyalty to the committee of which he is chair, the Government would not find his amendment acceptable.
Lord Mawhinney
My Lords, I do not need to take too much time. I thought it was interesting that all three distinguished lawyers who took part in the debate with very impressive political sleight of hand got us into celebrities extremely quickly. The Joint Committee did not discuss celebrities; I did not mention celebrities; the Bill does not mention celebrities; and the amendment does not mention celebrities. But celebrities are easier to attack than generals, admirals, members of the Cabinet or senior judges, so I am not surprised that they went for celebrities, but we might at least have the record straight.
Normal behaviour now does not do juries. It has not for the past 18 to 24 months. There has not been one, we were told. I carefully said in my opening remarks, “exceptionally” and “occasionally”, and that was the view. It remains my view precisely because—and I think the noble Baroness, Lady Hayter, said it better than I did—wrapped up in all this is an element of public confidence. It is easy to squander public confidence. If you have ever been a Member of Parliament, you know it is extremely hard to get it back once you have squandered it, so I wish my noble friend well. He has the lawyers on his side, there is no question. I look forward to listening to him defending to the rest of the country how doing away with jury trials in defamation cases enhances the coalition’s commitment to jury trials. I beg leave to withdraw the amendment.
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 Mawhinney
My Lords, just as I paid tribute earlier to the noble Lord, Lord Bew, for his contribution, so I pay tribute also to the noble Baroness, Lady Hayter, and the noble Lord, Lord Marks. Without them I am not sure that the Committee would have come to this conclusion. The noble Lord, Lord Marks, has just eloquently explained our thinking and our reasoning. Indeed, my noble friend Lord McNally may remember that the noble Baroness, Lady Hayter, had one or two questions for him on this subject when he came to give evidence.
The noble Lord, Lord Browne, said that we proposed a pilot, and the noble Lord, Lord Marks, has confirmed that. I would add that we proposed a pilot in part because we thought that this was such a radical idea that the Minister would need some help in dealing with the legal profession. We could hear the legal profession lining up against this idea and we wanted to side with the Minister, so we suggested a pilot. However, he should not be unaware of the fact that he will have one or two sessions of arm-wrestling with people who were not overly persuasive to the Committee before, hopefully, he gives effect to this particular amendment.
Lord Phillips of Sudbury
My Lords, I add my strong support for this amendment. You could almost say that we have been mourning the failure to provide justice in the defamation field for more years than I can remember. The Society of Labour Lawyers published a document, Justice for All, back in the 1960s. The Society of Liberal Democratic Lawyers published its blueprint 20 years ago. Every legal body that I am aware of has bemoaned the intractable problems related particularly to defamation. However, I see here the seeds of a breakthrough. It is very difficult for us lawyers to accept that sometimes the best is the enemy of the good, and I would far rather have some rough and ready justice within a sensible, practical framework such as might be provided under this amendment than I would see justice spurned. I hope that we can be open-minded and a bit imaginative and, before this Bill is done, provide something that will remedy what is at present a shame for us all.
Lord Mawhinney
“Civil Procedure Rule Committee Guidance
The Secretary of State shall publish guidance for the Civil Procedure Rule Committees proposing procedural reforms in the case of defamation proceedings.”
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.
That said, we do not consider the amendment necessary. The rule committee does not operate in a vacuum and civil procedure rules are made by a process that requires the approval of the Lord Chancellor for rules made by the committee. I take it on board; I have been in this job long enough to realise that you have to be careful in the separation of powers that we have in our system between the responsibilities of the judiciary, the Government and Parliament. But that does not mean that Parliament or the Government cannot send the clearest messages to the judiciary. That is why I agreed with the noble Baroness, Lady Hayter, earlier that case management is a major responsibility now for judges, and in this case in particular.
The Government can and do put before the committee proposals for amendments to rules of court. The Lord Chancellor is also able by virtue of Section 3A of the Civil Procedure Act 1997 to notify the committee that he thinks it expedient that rules should achieve a specified purpose, and in such a case the committee must make rules as it considers necessary to achieve the specified purpose. Ministry of Justice officials have discussed the contents of the Bill and related procedural issues with members of the senior judiciary on a number of occasions during the period in which the Bill has developed. Most recently, a meeting has taken place to discuss these issues with the Master of the Rolls, Lord Dyson, who heads the Civil Procedure Rule Committee. The Government will put proposals for procedural changes to support the new Act before the Civil Procedure Rule Committee shortly. Our intention is to ensure that these are in place when the Act comes into force. I hope on that basis that the noble Lord will be prepared to withdraw this amendment.
Lord Mawhinney
My Lords, I offer warm thanks to my noble friend for what he has said. He pointed out that arrangements already exist for the interrelationship between government and the judiciary. That was the point that I sought to make in moving the amendment. No one on the committee, and no one I know, is trying to challenge the separation at the very heart of our democracy; that was not the issue. However, having been told that there are ways in which those who are elected can relate to those who sit in judgment, we took the view that the more that people understood that those ways existed, the more they would be used, the more the Government’s arm would be strengthened and the more people would benefit in their advocacy and involvement.
I reassure my noble friend that he and I are approaching this in exactly the same way. He will notice that I did not table any amendments on arbitration and mediation, which were very much parts of the committee’s report. I did not do so because they are all wrapped up in this question of cost; I mention them now so that he will not forget them when he reflects further on how best to reduce costs. Very much in the spirit that he has outlined the issue, in which I wish to share, I beg leave to withdraw the amendment.
Lord Mawhinney
“Reporting to Parliament
The Secretary of State shall report to Parliament annually on the codification of this Act; and in particular on its impact on accessibility and clarity of the law.”
Lord Mawhinney
My Lords, I feel, on a personal level, the need to start, not exactly by making an apology, but by recognising that I have been playing far more of a role in this Committee than my record over 30 years in Parliament would have caused anyone to anticipate, or than I would find comfortable. I have interpreted my responsibility as chairman of the Joint Committee in carrying through the work of the Joint Committee to this Committee so that when the government Bill did not cover what we recommended I could at least draw the issues to the attention of this Committee. In that sense and spirit I move my last amendment; I am probably as pleased to be at the end of the process as much as the rest of your Lordships are.
We were conscious that we were doing two things. Defamation seems to be one of those areas of law where the common law has prevailed. What has been codified has been minimal, and judges have been left to move the thing forward. The argument for that has been the great flexibility of common law. We got evidence that not many people understood the common law and that there was benefit for the citizenry to have more codification in this area than has traditionally been the case. Hence this final amendment, to set out some help: to ask the Government to help people to understand the codification, what is left of the common law, and what more might be usefully codified and then to undertake to report to Parliament annually, so that all of us can see that as what is agreed in Parliament is implemented, so the public benefit. I thank my colleagues for their patience and, for the last time, invite them to allow me to move the amendment.
Baroness Hayter of Kentish Town
My Lords, the Committee has heard from me before, as has the House at Second Reading, on my admiration for the concentration of the noble Lord, Lord Mawhinney, both on the ordinary citizen—particularly in Peterborough—who might get caught up in a libel case, whether as claimant or defendant, and also on the need of anyone involved to be able to read and understand the Bill after enactment without the need of lawyerly guidance, as he has just outlined. This is his final throw and we should support him.
We do not want the courts to so run away with interpretation and reinterpretation of the Act that a simple reading of it would give very little guide to the current law on defamation, so nuanced will it have become in learned judgments. I imagine that the noble Lord, Lord Mawhinney, would want Parliament to come back to this at that stage and say, “Look, the Act no longer represents the law; we should amend it”. We concur completely with his desire that untutored people should know their rights and their duties in regard to defamation and we hope that the Government can respond positively to the amendment.
In the mean time, as we close this part of our scrutiny of the Bill, I thank the Lords Deputy Chairmen who have guided us through procedures; the Bill team, who have assisted us throughout, both here and in other meetings, for their patience; the Ministers for their mostly good humour and occasional cheekiness; and our colleague, Sophie Davis, for keeping my noble friend Lord Browne and myself as close to the straight and narrow as was in her ability to do.
Lord McNally
But, my Lords, that is exactly what will happen. There will be post-legislative scrutiny within three to five years of this Act passing.
Lord Mawhinney
My Lords, I salute my noble friend the Minister. I thank him and the noble Lord, Lord Ahmad. We as a Committee have been well served by the Ministers. They have undertaken to reflect on what has been said, and I have the confidence to believe that a little of what was said that initially did not please them may turn out eventually to be slightly more persuasive than originally they may have thought. I look forward to Report and I make a promise to colleagues that I shall not be as visible then as I have sought to be here. I seek leave to withdraw the amendment.
Defamation Bill
Lord Mawhinney Excerpts(11 years, 4 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Faulks
My Lords, in addressing the group that includes Amendment 23A, I have had a chance to reflect on the issues raised by these amendments and to read in Hansard the speeches made in the debate before we adjourned for the Christmas Recess. This has led me strongly to support the amendments—or most of them—in this group, if not to go further. I emphasise that I am in sympathy with this Bill, in particular with the raising of the bar to prevent trivial defamation actions. I would also like a limit on the right of corporations to sue, as we discussed on a previous group. I favour the amendments to the Reynolds defence, and the protection of peer-reviewed statements in scientific and academic journals as provided by Clause 6.
However, I have real difficulties with Clause 5, which we are currently debating. It seems to be taken almost as given by those in favour of libel reform that website operators should be in a special position and separate, say, from book publishers or newspapers. The reasons for this are said to be that website operators will generally act only as a conduit and have little control over content, and that liability for defamation potentially is inimical to free speech.
Parliament does not often have an opportunity to intervene in the law of libel and, as I am sure noble Lords will agree, it is most important that we get the law right, particularly when what we decide now may not be reviewed, except by the courts interpreting the provisions of the statute, for many years to come. That particularly is a heavy responsibility where courts all over the world are currently struggling to deal with the interrelationship of the law of defamation and the operation of the internet, and it is especially challenging to us to attempt any form of future-proofing.
In his very helpful speech to the Committee, my noble friend Lord Allan of Hallam told us that e-mail is not the communication mechanism of choice for young people—they much prefer instant messaging-type applications—and that a whole new range of communication services are coming into the market. It is reasonably well known that young people do not read newspapers much. Therefore, we are potentially considering the law in relation to what is going to be the most prevalent form of communication.
In its report on the Defamation Bill, the Constitution Committee of your Lordships’ House states:
“We consider that, as a matter of constitutional principle, the relevant provision should be to the greatest extent possible on the face of the Bill, so allowing full legislative amendment and debate. Moreover, only by seeing the proposed obligations to be imposed on operators will Parliament be able to consider whether the regime proposed is fit for purpose”.
Much in the current Bill is left to regulation but even that which is already provided for by Clause 5 causes me difficulties. It is plainly in the interests of website operators that there should be a special defence. They are an extremely powerful lobby with, as the noble Lord, Lord Triesman, pointed out on the previous occasion, the capacity to generate very significant profits.
As a member of the committee which last year considered the draft Communications Data Bill, I had the opportunity to see and hear from the representatives of the industry and to hear the very cogent and forceful advancement of their commercial advantages and disadvantages which might lie in the form of any future legislation. In particular, internet service providers were very reluctant to store any information which was not commercially useful to them, albeit that it might help the security services or the police to catch criminals. By the same token, they plainly do not want to have to face defamation actions and have the administrative inconvenience of trying to prevent defamatory material being published at all—if published is indeed the correct word, which is currently the subject of much judicial doubt.
I wonder whether our response to such large commercial organisations, although I appreciate that not all are large, would be the same if they were producing oil or manufacturing on a large scale, and we were told that it was inconvenient and potentially costly to provide a meaningful remedy to those who suffer from a company’s activities.
My noble friend Lord Allan talked about the democratisation of free speech but I am not convinced that much of the careless dissemination of rumour or innuendo that takes place can properly be defended on free speech grounds. Why does a substantial commercial company not have any obligation to take appropriate steps to either prevent or limit the publication of defamatory material or—and I stress this point—take out insurance in respect of those rare circumstances in which they will be sued for defamation?
The cost of an insurance premium would simply be a business cost and would mitigate the potential unfairness of depriving someone of a remedy who has been defamed. Will this open the floodgates? The law, as it presently is with the Defamation Act 1996 and the 2002 electronic communication regulation, provides some protection. But I an unconvinced that there is or will be a great wave of litigation brought against website operators. If the Bill becomes law, it will be only for serious defamation that anyone can sue at all. Furthermore, they must have the funds to do so. If in fact a website operator responds quickly to a complaint, broadly in the way envisaged under the Bill, it will limit the damages and thus deter a potential claimant from bringing proceedings at all.
Let me give an example of a defect in the provisions as they currently stand. Say that you were a teacher who had been accused of being a paedophile and that that was placed on a website. Particularly in the current climate, this would probably cause irreparable damage to your life and career, even if the allegation was wholly unjustified and subsequently withdrawn. However, provided that the website operator responded in the way envisaged under the Bill, you would have no remedy at all. Those few complainants who have serious complaints should be able to bring a claim, even if it causes some inconvenience and expense to the website operator, who will simply have to bear the cost. It almost certainly will have broader shoulders than the potential claimant.
I am far from convinced that we should be giving website operators a special defence. I look forward to hearing the Minister’s justification of that defence and to his answer to the amendments, although I notice that there is a government amendment to which we will come in due course. At present, I am sorry that my noble friend Lord Phillips is not going to pursue the clause stand part debate. There are a number of anomalies that we could point out—there may always be anomalies—but it is a particular anomaly, for example, that someone can sue for slander if the publication is limited to one person but will not be able to sue effectively in the circumstances envisaged here.
I know that the Minister is a great fan of the Human Rights Act. I wonder whether the provision will satisfy analysis in the courts, either here or in Strasbourg, in terms of an Article 8 right. I am of course aware of Article 10, but it seems to me that if I were that hypothetical teacher or someone in that situation, I would be relying on Article 8, regardless of this defence, to outflank the provisions on defamation. I have experience of cases where courts have held that remedies under the Human Rights Act exist independently of any rights under common law or under statute.
I regard the provisions as unsatisfactory, requiring greater explanation. I fear that, unless we provide a great deal more detail to deal with some of the difficulties which will be encountered, we will make bad law.
Lord Mawhinney
My Lords, part of my role in this Committee has been, as accurately as I can, to reflect the evidence and testimony that was given to the Joint Committee. I feel the need to repeat that process this afternoon.
Lest I be accused of being unduly biased, we had representatives of modern technologies come to give evidence, including one Member of this Committee. We heard the arguments, in particular, from those who run websites and are operators and might conceivably be the focus of defamation proceedings. A number of your Lordships present today were members of Joint Committee, so I can always be corrected if my memory fails me. I think that it would be fair to say that, overall, the evidence we got was that websites ought not to be beyond the reach of the law. This may or may not be a democratisation of free speech—whatever that means. Certainly, anybody and everybody can now get themselves a worldwide audience, which did not used to be the case. Whether that is a compelling argument for saying that such people will no longer be bound by the restraints of defamation is an entirely different matter.
Lord Ahmad of Wimbledon
As I alluded to in my opening comments, this is about getting the balance right. If there were such a case, and I totally accept that there are issues that would arise here, there would be a cost element to this process. At the same time, there are many occasions when a balance must be struck on this, whether we are looking at professional websites or websites where people often post under a pseudonym and may be posting for good reasons of safety and security to protect themselves. That being said, though, I hear what my noble friend has said. I assure him again that we continue to consult with stakeholders across the board on the contents of such regulations and have sought their views on the practicality aspect of this new process. As I have said, this is something that we are looking at, and any suggestions that are made are looked at and discussed. I am sure that we will return to this, if not in Committee then on Report.
As I have said, we are looking at the issue of whistleblowing and the necessity at times to protect confidentiality, and setting that against the very arguments that have just been put forward by my noble friend. We feel that Clause 5 strikes the right balance. As my noble friend Lord Lester said earlier, there are two sides to the coin. The process set out in Clause 5 provides a quick and easy way for the claimant to obtain the necessary detail where the poster has no objection to providing it, but then places responsibility back on the claimant to secure a court order where the poster is unwilling to share the detail. This broadly reflects the position that applies in relation to anonymous material published offline. Where a claimant is unable to identify the author of a defamatory statement, and in the offline context does not wish to pursue the publisher, they can seek a court order for release of that information by whoever is in possession of it.
Amendment 26A would make a drafting amendment to Clause 5(4), replacing “was” with “is”. I can understand why this amendment has been brought forward, but I hope that I can reassure the noble Lords on this point. When the clause refers to posting, it is the act of posting with which we are concerned. No matter whether the posting stays up or comes down, that act has happened in the past, so it is our view that “was” is the most appropriate word. The amendment however raises important questions about what a website operator’s responsibility should be where a posting has already been removed. We are seeking views as to the content of proposed regulations and will take that issue away and consider it alongside the responses that we receive.
Finally, Amendment 29, in the name of my noble friend Lord Phillips, provides that a Clause 5 defence be defeated in cases where the claimant can prove malice by or on behalf of the website operator. The Clause 5 process requires the website operator to act in accordance with the process and entirely neutrally. It is difficult to foresee circumstances in which a website operator who complied with the Clause 5 process could do so maliciously. If it is the poster who is acting with malicious intent on behalf of the website operator, the claimant will still be able to bring proceedings against the person responsible for posting the statement. Therefore, we do not see what an amendment such as this would add to the clause.
Lord Mawhinney
My noble friend started by saying that it was the Government’s policy to achieve a balance and he repeated that as he made his way through the amendments. It was mildly ironic that he followed immediately after the noble Lord, Lord Lester of Herne Hill, who read a rehash of Mumsnet evidence to the Joint Committee and finished by saying that he was doing it just to ensure balance.
On the one hand, as has been made clear, lots of organisations are saying, “Free the shackles; let us do this and that; there should be no, or minimum, restriction”. We know who is arguing for freedom to defame. On the other hand, there will be lots of individuals who find their reputations tarnished or trashed, and they will have no organisations standing up for them. Will the Government therefore argue for the individuals whose reputations are at stake to ensure that the end point is balanced? If not, how do they envisage balance, when you have got Goliath on one side and not even a mini Goliath on the other?
Lord Ahmad of Wimbledon
I thank my noble friend for his intervention, although my recollection of the David and Goliath story is that David ended up winning. Divine intervention is always something that one should bear in mind.
Coming back to the point raised by my noble friend Lord Mawhinney about clarity and balance, as my noble friend—and indeed the whole Committee— recognises, this is a difficult area. I reiterate that the Government want to get this right and we are still taking views, as we are in this Committee, on this area. We are consulting stakeholders, as I have already said, on the content of the regulations provided for under Clause 5 and have extended the deadline for responses in this respect to 31 January. I reassure my noble friend Lord Mawhinney, whose guidance and mentoring I always welcome, that this is about ensuring that, when it comes to issues of defamation, those people who have been proven to have fallen victim are properly protected and that recourse is available. However, the balance of that has to be in ensuring that there is not too much of a burden on website operators. In some cases, as has been illustrated by other noble Lords, it is something that is, at times, beyond their control. What is important is to ensure that website operators follow the appropriate process. That said—
Lord Mawhinney
I thank my noble friend but encourage him to edge slightly closer to answering my question. He said a very interesting thing: that we are consulting with stakeholders and, indeed, have extended the time for consultation. That actually makes my point. The stakeholders are on one side of the argument, and the individual whose reputation is at stake is on the other side of the argument. The consultation is not even balanced. That causes, I think, concern to a number of noble Lords in this Committee. It certainly does to me, and I would like to know what constitutes balance in the mind of the Government. Incidentally, I will just throw in that we are going to have plenty of opportunity shortly to debate this Government’s theological position, and perhaps my noble friend would take a little advice: I would not go there if I was him.
Lord Ahmad of Wimbledon
Theology is always one to park, but, as a man of faith—and as a fellow man of faith—I take my noble friend’s guidance on that. The point I am making is about stakeholders—those people who are looking at this issue. Yes, it involves website operators, but the point of this clause is that it is not the website operators doing the defaming, it is the person who has written the statement. That is the person who should be held accountable and responsible. Where the website operators’ obligations come in is whether they have followed the process as detailed in Clause 5.
Coming back to the point about balance that my noble friend made, this is not just about talking to website operators but about talking as well to people who represent claimants, to ensure that those people who represent the body that feels it may be subject to such actions are also heard and that their case is also made. However, I am sure that my noble friend would agree with me that, if we started consulting every single individual who may or may not be concerned on an individual basis with this, our Committee would continue for a very long time. Nevertheless, as I have alluded to several times—and I repeat the point again—in speaking to all these amendments it is important for me to place on record that the Government are aware of the pace of change in internet and electronic communications. Even as perhaps one of the younger Members of your Lordships’ House, I remember in my professional life when the internet first came alive. Things are changing by the minute, and the pace of change is somewhat beyond even my comprehension. There are innovations in electronic communications and, as I have indicated in all my responses, in particular in response to Amendment 23A, we have an open mind in respect of terminology. In addition, we believe that putting the details of the Clause 5 process in the regulations provides greater flexibility to adjust aspects of the new procedure should that prove necessary as technology develops.
Lord Mawhinney
“Unattributed website content
The Secretary of State shall publish guidance for the operators of websites designed to ensure that unattributed material is not published on any website.”
Lord Mawhinney
Conscious of the time, I shall give a quick summary of what the Joint Committee decided by way of stimulating thought on this particularly tricky issue. I think that it is fair to say—I suspect that my noble friend Lord McNally will agree—that this is the single most difficult issue in the whole Bill: what you do about those who post on the internet anonymously? We have already had a considered view from the noble Lord, Lord Phillips of Sudbury, and the noble Earl, Lord Erroll, pointing out the costs attached and how difficult or, perhaps, impossible, it is to identify people who are anonymous.
The committee was given a lot of evidence from people who ran websites saying, “Leave us alone”. We heard evidence from newspaper editors saying, “Leave us alone”. We heard evidence from academics saying, “Don’t leave us alone”. We heard very little evidence from individuals crying “Help!”, but that is what we thought we were empowered to do. We were quite clear about posting on the web. If the name is attached, the law should apply and be pursued. Notwithstanding the self-evident self-interest of some people who gave evidence, we thought that if we know who has done it, they should be held to account for what they did. We did not get into the detail that the Committee has got into, nor should we, but that was the basic position.
When it came to anonymous contributions, everybody told us, “There is nothing you can do about it; it is a world wide web; they could be anywhere. The website could be attached to another website, buried in a third website, ad infinitum. It cannot be handled legally, period. Forget it, Joint Committee, and move on”.
We came to the view that it was pretty difficult to handle this from a legislative point of view. We did not want to engage in argument with those who kept telling us that. On the other hand, we were not willing to just forget about it. Two ideas surfaced. One of them is incorporated in the amendment, which is, in effect, a probing amendment. One way to deal with anonymity would be to rule it out: to say that you can take part only if you are willing to say who you are. That would be a relatively simple solution. I can hear some of the arguments against it even as I stand here, but that does not negate the fact that it is at least an option for the Government to consider.
Lord McNally
My Lords, I am grateful for this debate. The more I listen to it, the more I realise that we are, consciously, going into unknown territory. As I said previously, we are taking a different approach from that we took 10 years ago with the Communications Bill, when the Government of the day, and Parliament as a whole, took the view that the internet should be left free for us to get the full benefits. Within the judgment of history that was probably the right thing to do. It allowed the massive growth of initiative and new companies and services, and the liberating effect I referred to for the individual citizen.
The most hopeful thing that I have heard today, because I respect his knowledge of this sector, is my noble friend Lord Allan’s comment that we should not follow a counsel of despair. That gives me great encouragement. There are, as has been said a number of times, those who say that the internet is beyond any single parliament or jurisdiction to control, and it is a global phenomenon that will just roam free. I do not believe that there are any man-made institutions which cannot be brought within the realm of governance, particularly democratic governance.
We face balances and different arguments. I have been in debates where the whistleblower has been the hero. The noble Lord, Lord May, has pointed out that, quite often when talking or trying to criticise, it is the powerful vested interests—not just the internet companies—that will try to close down criticism by intimidating the means of that information being disseminated. I am determined to try and get this right, but I am aware that we are going into areas where there are upsides and downsides to whatever we do.
I know of my noble friend Lord Phillips’s lifelong commitment to defending the rights of the little man, but I fear overlegislating in this area. We are just emerging from a debate in which it was suggested that our libel laws have become a bonanza for lawyers. I am worried that, in the concern to deal with some of the problems that have been raised, we might create another bonanza for lawyers. I sincerely believe that the contribution of lawyers to this debate has been extremely helpful, but I ask for time to study this debate in Hansard. As my noble friend Lord Phillips said, we have spent nearly five hours on this clause, and rightly so. It is the one in which we are going into untested territory. I want to see how it stands up to the criticisms that have come from both sides.
Amendment 30 goes much wider than issues of defamation, and is therefore beyond the scope of the Bill. It relates to broader issues concerning how the internet could and should be regulated. However, even if this new clause were to be limited only to defamatory material, it has been suggested that there has always been a tradition of being able to publish comment under pseudonyms or anonymously. My noble friend Lord Mawhinney has suggested that we should try to build some change in that culture, so that people are willing to put names to their criticism, and that that is a way forward. However, the practice is widespread. Like my noble friend Lord Lucas, I quite often go on to sites about hotels and restaurants where you get the most insulting comments about the levels of service, and sometimes they are very helpful when you are making your decision. It is also true that in the vast majority of cases it is entirely unproblematic; the hotels and restaurants live with the good and the bad, and leave it to common sense.
My noble friend Lord Mawhinney said that this was a probing amendment. It has produced strong arguments on both sides. I would like to study this issue. I also take the point about the consultation. The paper that noble Lords have received is not going to be very different from the consultation, but I understand the point made by the noble Lord, Lord Browne of Ladyton, that he would like to join the game as well. I am going to look at what we can do in that respect.
It is obvious that we have to get this into better shape by Report. We have only four or five months until the end of this parliamentary year and, at the pace that we are going, we will need every day of that. I will take this amendment away in the probing spirit in which it has been moved; indeed, I will take the whole debate away. I have already agreed bilateral discussions on specific issues of concern with a number of colleagues, but I will see if there is some other way of bringing together a fuller debate on the contents and direction of the guidance. In that light, I hope that my noble friend will agree to withdraw his amendment.
Lord Mawhinney
My Lords, I thank my noble friend for his helpful response. I would like to start where he finished. I particularly welcome the fact that he said that after he had given it serious consideration, he would produce something relatively definitive by Report. That is absolutely right, and it is extremely helpful. If I have learnt anything about this issue, it is that if we get it right in one go, we will be lucky rather than seriously impressive. That means something reasonably definitive on Report, which would allow for a second bite of the cherry at Third Reading, were that to prove necessary. I welcome what he has said, and I encourage him to continue with that thought.
We have had an interesting debate. I am grateful to my noble friend Lord Phillips; part of our experience as a committee was that it was hard to find people to identify with the little man. The organisations were well organised, powerful, articulate and pressured, so part of our work was always to try for the elusive balance that we have talked about today. He has helped us enormously, as did the suggestion from my noble friend Lord Lucas about some sort of intermediate step, and I hope that he will think further on that.
I admit to being surprised that the Joint Committee should have taken China into consideration, and I apologise to those who feel that we were too constricted in our view. I have never been called a little Englander, nor even a little Irelander, so I apologise. I understand the point that my noble friend Lord Lester, was making, but I have to be honest and say that this is complicated enough without worrying what other countries are going to use as an excuse if and when we come to a judgment. That is not meant to be in any sense a little Englander type of comment.
At the end of the day, people’s reputations are on the line. We have already established that the cost of trying to get behind anonymity or lack of attribution goes against one of the principles of the work that the Joint Committee did, the work of which is shared by Members on all sides of this Committee. I thank my noble friend for his response and I beg leave to withdraw my amendment.
Lord May of Oxford
I can give the Committee many examples. One that does not reflect directly on me was during the GM controversy, when there was an experiment by Pusztai that claimed to show that GM foods killed rats. The Royal Society did a review of it that said that these experiments were so flawed,
“in many aspects of design, execution and analysis”,
that no conclusion could possibly be drawn. I have a sneaking sympathy for poor Mr Pusztai. He was a sad but well intentioned little man who did silly things. I am sure that he felt that that quote was malicious. I would like to be reassured that there is a legal sense to “malice” that means “consciously unkind”, as it were. If these amendments had been in place, Nature would have saved £1.5 million fighting a simple case.
When Clause 6 says,
“relates to a scientific or academic matter”,
I take it that that means that, by definition, everything in the journals is of a scientific or academic matter. Often they will be opinionated editorials about issues of interest to the academic community. I thought that I would raise those issues rather than trying to grab someone afterwards.
Lord Mawhinney
My Lords, I support the amendments of the noble Lord, Lord Hunt of Chesterton. Were I surrounded by the Joint Committee, it would be in agreement with my wanting to do so. I say to the noble Lord and, indeed, to my noble friend that the definition of “recognised” may need to be examined a little further and tightened just a little more, not least bearing in mind the point that the noble Lord, Lord May, has just made, but that is relatively straightforward. The principle seems to be a good one, in line with what we in the committee produced, and I commend the noble Lord.
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.
Lord May of Oxford
It is perhaps a little more complicated than some people think. I am not sure that people understand that some journals are purely electronic. Some of the major journals—PLOS ONE, for example—are online, while most of the conventional, older journals offer an option to publish additional material electronically. More than half the journals are run by the same learned societies that the noble Lord, Lord Hunt, is talking about, so it is not a juxtaposition of things that you can physically hold up and others. It is a seamless continuum, and the spirit of this definitely needs some refining to make central what has been said so clearly: that the issue is peer review.
Lord Mawhinney
My Lords, I will chip in again. When I responded to the amendment from the noble Lord, Lord Hunt of Chesterton, I said that it was subject to further work being done on the definition of recognition. I know that the noble Lord, Lord Browne, said that he was talking about something different, but I think that he and I are basically saying the same thing. In light of this further conversation, I say to the noble Lord, Lord Hunt, that if his amendment is saying that the existing people become the judge and jury for their own individual production, then I am not sure that that is in keeping with the spirit of what the Joint Committee said.
A redefinition, or indeed a definition, of “recognised” has to have some element of other people endorsing the view of those who want to produce. I encapsulated that in referring to a clearer definition of “recognition”. The noble Lord, Lord Browne, and I are probably saying much the same thing, and I hope that those who spoke to the noble Lord, Lord Hunt, recognise that being in a learned society is not in itself sufficient. There has got to be further definition of the word “recognition”. However, subject to that, which does not seem to me to be an insurmountable problem, I still welcome the amendment.
Lord Phillips of Sudbury
My Lords, I strongly support this group of amendments in the name of the noble Lord, Lord Hunt. I am sure that all the academics at the University of Essex, of which I am chancellor, would be cheering on their stools if they could hear this.
I just have one question for my noble friend Lord McNally, which may seem rather an odd one. This is all built around scientific or academic journals. That seems an odd pairing to me because I would have thought that most scientific journals were academic journals, although not vice versa. If there is to be a careful consideration of the terminology in the amendment tabled by the noble Lord, Lord Hunt, which I think is necessary and indeed essential, the Minister might consider whether or not “scientific or academic” is the happiest wording, as if one excluded the other.
Defamation Bill
Lord Mawhinney Excerpts(11 years, 5 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Ahmad of Wimbledon
I thank the noble and learned Lord for his suggestion, but if I had been able to finish my sentence, I was going to say that I apologise regarding the commitment made and, as I said, we will be writing to him quite specifically on the issue that he has raised.
I turn to the matters that the noble and learned Lord raised. Amendment 13 provides for this condition to be met if, in commenting on a letter or article in a newspaper, the defendant identifies the subject matter of the letter or article and the date on which it appeared. This situation is already covered by subsection (3). If the statement indicates that the basis for the opinion is what was said in a particular letter or article that has previously been published, then that would enable the claimant to read the letter or article and assess the nature of the criticism, and the test would thereby be met.
The noble and learned Lord referred to a particular case. I am mindful of the great expertise not just around the table but in the array of judicial expertise engaged in the particular case to which he referred and in which he was involved, as he pointed out. I would hesitate at this point to express a view on the rights and wrongs, but what I can say is that Clause 3(3) reflects the test that was subsequently approved by the Supreme Court in Spiller v Joseph, and that covers the circumstances that are set out in the noble and learned Lord’s amendment.
Lord Mawhinney
I am grateful to the noble Lord for giving way. Apropos of his comments about the noble and learned Lord, Lord Lloyd of Berwick, that noble and learned Lord is not the only one who finds my noble friend’s response slightly lacking. Governments have a habit of making promises that are important, first, because they come from the Dispatch Box or whatever, and secondly, because they are important to the recipient of the promise. When those promises are not upheld to Members of this House or of the other place there is a significance to the absence, which my noble friend did not entirely encapsulate in his reply. If he will forgive me, as a friend, for saying so, conveying the Government’s understanding that breaking such a commitment is simply not acceptable probably needs more substance than a quick apology, en passant, and the promise of a letter.
Lord Ahmad of Wimbledon
I thank my noble friend. He emphasised the word “friend” and I acknowledge this fully. I can assure the Committee that I did not intend to appear as if I did not fully understand the nature of the question put by the noble and learned Lord. If that has been communicated, I make an unreserved apology and assure the Committee that we fully acknowledge the fact that a letter should have been written to the noble and learned Lord, based on the discussions at Second Reading. I am sure that my noble friend Lord McNally has taken particular note of the comments and expressions that have been made. As a reasonably new Member of your Lordships’ House, I always welcome direction, particularly on the way that the House operates. I reiterate that I intended no discourtesy to the noble and learned Lord and thank my noble friend for his direction, which I acknowledge and will take on board. I hope that the noble and learned Lord also feels that I have acknowledged any shortcoming in my initial response.
Lord Mawhinney
My Lords, the Joint Committee’s report was published 14 months ago. It is a fairly accurate account of the months of work it put in to produce that report. This is one of the instances where 14 months has assumed considerable significance. I will be truthful, as noble Lords would expect me to be, but I have not had time to go back, prior to this Committee stage, and read all the evidence that was given to us. However, my memory is that by and large we concentrated on the list because the list already existed. We listened to evidence from people who wanted to tweak the list. My recollection is that there was no discussion of a slightly more radical solution—or, if there was, it was of a passing, almost ephemeral nature. However, I do not believe that such a discussion actually happened. Given that three other members of that committee are present, they can correct me if my memory is in error.
I pay tribute to the noble and learned Lord, Lord Morris of Aberavon, who is a distinguished member of the committee. He took upon himself the role of reminding us that if we wanted a radical change of the law, we were going to create—to use his memorable phrase—“a cottage industry for the lawyers” until the new law had settled down. We paid attention to what the noble and learned Lord said. Had there been a significant discussion about a radical alternative to the list, I guess that at least some thought would have been given to whether or not we were going to generate a new cottage industry. He will recall that I was slightly more relaxed about cottage industries than perhaps he was, in part because it seems to me that any time the law is changed, lawyers and judges will always want to have a say in determining what it actually means before the whole issue moves forward.
I come back to the significance of the 14 months, because the conversation about a radical alternative to the list has emerged in that time. I am grateful to my noble friend Lord Lester of Herne Hill, who, in turn, introduced me to Sir Brian, and we spent a certain amount of time talking about whether the list was the best way to proceed or whether something more general and more dependent on the common sense and good judgment of the courts would not be a better way forward. I do not wish to unduly embarrass him, but I thank my noble friend Lord McNally also, because he and I had some conversations around this issue as it became clear to all of us that doing away with the list and having a more general statement would almost certainly be the right way forward. From looking at Amendment 23, it is clear to me that the noble Baroness, Lady Hayter of Kentish Town, was having similar conversations to those that I was having, because that amendment is a good summary of where the new thinking should be placed.
My noble friend Lord McNally concentrated on the words,
“all the circumstances of the case”,
and I have underlined them. I am not sure that I entirely buy the official interpretation of those words that his officials have given him. I am of either the old school or the new school but I am not sure which. I think that, just occasionally, it helps to have the obvious stated in a Bill for the avoidance of any misunderstanding or, indeed, any potential mischief-making. In supporting the thrust of what the noble Lord, Lord Browne, and the noble Baroness, Lady Hayter, have suggested, having the words,
“all the circumstances of the case”,
in the Bill would be a happy addition.
Perversely, that takes me to the amendment I have proposed. It emerged out of conversations that were held 14 months ago and it is an accurate reflection of one more addition to the list that emerged from our considerations. However, I am happy to acknowledge that in the intervening time my noble friend Lord McNally, and indeed the noble Lords, Lord Browne and Lord Lester, and the noble Baroness, Lady Hayter, have moved the conversation forward to a much better place. With that in mind, when the time comes, I shall not move Amendment 17.
Lord Marks of Henley-on-Thames
My Lords, I found the question of whether we should or should not have a list of factors in Clause 4 a very difficult one. In the Joint Committee I was certainly of the view—a view I expressed at Second Reading—that a list of factors would be helpful, primarily because it would enable members of the public to look at the statute on the internet to see what kind of factors might or might not be important in determining whether a publisher would be held to have acted responsibly.
I remember the arguments around this issue in Joint Committee, and my noble friend Lord Mawhinney may like to think back to them. However, I have now been persuaded that the list of factors arising out of the Reynolds case has been treated as a checklist and used by claimants and defendants alike, and by their solicitors, to put their opponents to very costly proof at the pre-action stage in a way that has tended to be oppressive and increase costs. There is a serious risk that a codified list of factors as set out in the unamended Bill would have the same effect. I now accept that a statement of general principle is the right approach, but I have reached that conclusion with some difficulty.
It is important to note that the way the test is now expressed in government Amendment 14 combines an element of subjectivity with an element of objectivity. That is really the answer to the question put by my noble friend Lord Phillips of Sudbury to my noble friend Lord McNally when he decided not to move his amendment. I am bound to say that I thought that my noble friend Lord McNally did himself an injustice in declining to answer the question because he had in fact already answered it in his opening remarks on his own amendment. The element of subjectivity is that the court will have to look at what the defendant believed, and that is a subjective test. It will then have to look at whether that belief was reasonable, and that is an objective test. That combination will enable the court to develop the law on the basis that it is an issue of fact which will necessarily take into account all the circumstances of the case. My concern is allayed by that because it seems unlikely that the case-by-case development—the cottage industry development to which the noble and learned Lord, Lord Morris, referred—will not create too much difficulty. However, it is a danger, and I hope that it is one that the courts will be careful to consider.
Amendment 15, tabled by my noble friend Lord Phillips—
Lord Mawhinney
May I offer my noble friend a personal apology? I said that there were three distinguished members of the committee here present. I will be honest with my noble friend and say that my eyes saw him but my brain did not register the fact. Of course, there are four distinguished members present. I want to correct the record and, in so doing, express my appreciation for his contribution to the committee.
My noble friend invited me to reflect back on our conversations about the list. I well remember conversations about whether the list would become a tick-box exercise and the damaging impact that that would have on courts having to make decisions so that every item was covered. However, I do not remember any conversations about a radical alternative to the tick-box approach. I hope that he will accept that that is my best memory of the conversations that we had.
Lord Marks of Henley-on-Thames
My Lords, of course I accept that. I would like to say that I am grateful for the apology, but I am not sure that I am. I had worked out that there were four of us and I had not worked out who was left out, but now I know that it was me. It matters not, perhaps, what the conversations were, as I think that I have made the point.
Lord McNally
My Lords, my first thought is about the wish that Sir Brian Neill, having just been released from hospital, should follow closely our proceedings. If you are, Sir Brian, please switch off. It is not conducive to recuperation.
I said at the beginning that this clause is at the very heart of the Bill and the contributions have been extremely useful. Since noble Lords have been dishing compliments around, I am very grateful to the noble Lord, Lord Browne, for the attitude that he and the noble Baroness, Lady Hayter, have taken. Of course, in our system, the job of the Opposition is to oppose, and we understand that. However, I think that the more we can produce a Bill that is the result of all-party work and contributions, the better we get something that sticks. This is not an area for party games. When there is a campaign such as the Libel Reform Campaign, it is sometimes tempting for opposition parties simply to espouse the campaign and go down to the last with them. I appreciate where the noble Lord, Lord Browne, has been willing to tell the campaign that it cannot deliver. As we keep on saying, we are trying to get a balance between the right to free speech and the proper protection of reputation. If I can send a message to the Libel Reform Campaign, it is not to indulge in an exercise in impossibilism. We are trying to get this right. As the noble Lord, Lord Browne, and others who have had these responsibilities know, for every concession I make and every amendment that is carried, I have to write to Cabinet colleagues, not all of whom are as enthusiastic about reform as perhaps I am. That is the nature of things, and the way that this Committee is approaching it is helpful in that respect.
As to the amendment in the name of the noble Lord, Lord Browne, the noble and learned Lord, Lord Brown, has just said that he does not support it. I fear that that is part of the dilemma. However, I will think about it. As a layman, I tend towards thinking that there is nothing intrinsically wrong in writing the bleeding obvious into a Bill. I understand when people say, “Well, it’s covered in another Bill or elsewhere in this Bill et cetera”, but it is reassuring if the public can read very simply what we intend.
The noble Lord, Lord Browne, made the point that within the Bill there are a suite of defences. It is also worth reminding ourselves—the noble and learned Lord, Lord Brown of Eaton-under-Heywood, has just reminded us of it very clearly—that in the end we will be subject to interpretation by judges. We had a short debate yesterday about it, and that is what the separation of powers is all about. Of course this will be tested, and that is the challenge to the work we do. We will have a look at the phrase, “all the circumstances”. We have quite a long time until we meet again, and perhaps we can have some further talks about it.
Lord Mawhinney
Before my noble friend leaves this point, who are the Cabinet Ministers who fail the McNally test of enthusiasm?
Lord McNally
I will publish them on the MoJ website. Even better, I will tweet them. No, I will not. Now I am trying to run through in my head who they are.
It is interesting that the recently departed Solicitor-General, who was and is a practising libel lawyer, thought that this was entirely irrelevant, unneeded and so on, and argued very strongly against it. He felt strongly about it, although that is not the reason why he is now an ex-Solicitor-General.
Lord Allan of Hallam
I agree with the noble Lord. The new concept has been described. There is a lot of thinking and literature being developed around this. We are talking about private speech in a public space. Essentially, the speech is made in a private tone but the reality is that the speech is publicly accessible, because of the nature of the technology, to anyone in the world. That does not mean that we ignore it, with which I completely agree. In this clause, we are aiming to get towards a sensible way of dealing with that speech and recognising that it is different from the speech traditionally regulated through defamation law, which was speech through editorialised large organisations.
Lord Mawhinney
I am grateful that the noble Lord made this argument because of all the arguments we heard in the committee this was the one we thought probably had the least validity. If you make a statement and it goes round the world, who—I was almost tempted to say a naughty word—cares whether it is made in a pub, in Tesco or anywhere else? Who cares if it is made by a friend to a friend? To use that argument is to somehow say there is a qualitative difference. I will speak later in this debate at greater length but I want my noble friend to think carefully before relying on what is almost a patently non-sustainable argument.
The Deputy Chairman of Committees (Lord Brougham and Vaux)
I want to remind the Committee that the Chamber will be rising in about five minutes and, in the spirit of Christmas, if noble Lords can keep their comments short we will finish after the end of this group.
Defamation Bill
Lord Mawhinney Excerpts(11 years, 5 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Mawhinney
My Lords, I am not sure what the proprieties are but for the record I had the privilege of chairing the Joint Committee, the report of which is a seminal document in the consideration of this Bill. Before I turn to the amendments in my name and the amendment in the name of the noble Lord, Lord Browne of Ladyton, and the noble Baroness, Lady Hayter of Kentish Town, I should say that the committee was enormously assisted by two noble Lords present this afternoon: namely, the noble Baroness, Lady Hayter of Kentish Town, and the noble Lord, Lord Bew. All the outcomes of the committee’s deliberations were supported by both my noble friends. I shall use that word in its normal rather than parliamentary setting. The report was greatly enhanced by their contributions, for which I thank them.
The report also acknowledges the considerable help that the noble Lord, Lord Lester of Herne Hill, contributed to our conversations and deliberations. He knows that we are appreciative of that. I add to that the name of the Minister—the noble Lord, Lord McNally. His door was always open to me and we had a number of very good and constructive conversations. I thank him and express with great confidence the hope that the spirit which imbued our earlier conversations will continue to prevail in this Committee.
Amendments 2 and 3 stand in my name, so I shall start with those. The first seeks to change the test to “serious and substantial”. As I told your Lordships’ House at Second Reading, this emanated from the evidence given to us by the noble and learned Lord, Lord Mackay of Clashfern, who is probably one of the most highly regarded Members of your Lordships’ House. He was quite explicit. He apologised to me privately for not being able to be here today. I told him that I had put down an amendment to try to persuade the Committee, and subsequently the House, that the test should be “serious and substantial”. He said, “It is quite straightforward, Brian. ‘Serious’ means that what is said can be very damaging but may not be substantial if the ripple effect—the extent of publication—is very limited. On the other hand, it might be only borderline serious but the extent of publication may be so great that substantial harm is done, so there are arguments for the ‘serious and substantial’ test”. The committee was impressed by the evidence given by the noble and learned Lord, Lord Mackay, and we translated what he said to us into our report.
The noble Lord, Lord Browne of Ladyton, makes a good point when he says that we are in danger of leaving everybody slightly confused by the terms “substantial”, “serious and substantial” and “substantial to serious”. That raises another question as to whether or not the Government are seeking in this Bill to codify or to write new statute. Paragraph 27, to which the noble Lord, Lord Browne of Ladyton, referred, addresses this point.
The Secretary of State for Justice, the right honourable Kenneth Clarke, said in his evidence to us that Government were looking for new statute. He was accompanied at that evidence session by our Minister, and after I queried exactly what the Government’s position was supposed to entail, he wrote and said that we were essentially only seeking to codify the law. I must therefore say to my noble friend that we really do need to know whether the Government want to codify or to write new statute. We in the committee were fairly clear that new statute needs to be written, because as the noble Lord, Lord Browne of Ladyton, said, our view—and the view of almost everybody who gave evidence to us— was that the present bar is too low.
That leads me to another point. The noble Lord, Lord Browne of Ladyton, quoted—I think—my honourable friend Mr Djanogly in saying that this legislation needed to be clear, because Parliament set the law and the judges interpreted it as if it was a new and bold step forward into the unknown. That is how our constitution works. We have to decide what we want to tell the judges to use as the basis of their judgments. It is not complicated; it is quite straightforward. This Committee therefore needs to focus on whether “serious and substantial” would be so confusing to our judges that they could not handle it. Frankly, I do not believe that for an instant, but that is an argument that has been floated. We need to be crystal clear what the will of Parliament is. The will of Parliament as reflected by the Joint Committee was that the bar should be raised, and the will of Parliament as reflected by our committee was that this required new statute rather than a codification of existing common law.
That leads me to Amendment 3, which is in my name. The committee formed the view that while ultimately it is for judges to decide whether defamation has occurred or whether the charge is serious enough that it should be pursued in court, the evidence we received and the judgment we formed was that that process is delayed too long. Guidance needs to be issued to the judiciary in whatever form is appropriate. I am not a judge, so I am not going to leap into waters which may very quickly get above my head, but we were quite clear that there needed to be guidance in order for the judiciary to come to an early judgment as to whether this test had been met; and if so whether the case should proceed; and if not that it should be terminated immediately.
Lord Phillips of Sudbury
I thank the noble Lord for giving way. Will he explain to us—because it is not clear to me—whether this process of the Secretary of State issuing guidance goes through any secondary legislative procedure? It does not on the face of it appear to do so.
Lord Mawhinney
I think the truthful answer to my noble friend is that I cannot tell him that. However, my understanding from listening to hours of evidence is that pathways by which the Government can issue guidance already exist, and I assume that that would be covered by that arrangement. If this is not the case, I would encourage my noble friend, who knows more about these things than I do, to put down appropriate amendments on Report to clarify the issue that he has raised.
Therefore, it is question of new statute, not codification; of raising the bar; and of the judiciary making early judgments as to whether these cases before them should proceed. I stress that because—and I am not going to apologise to noble Lords—I fear I am going to return regularly through these sessions to one of the overwhelming judgments that we made. That was that the cost of defamation has risen to such an extent that it is driving way beyond the means of ordinary people their ability to seek the protection under the law to which they are entitled.
The committee occasionally, in trying to balance legal action against cost, came down on the side of cost. Legal niceties are good, important and proper but they are irrelevant if the ordinary man on the street cannot afford to go to law in the first place. Therefore cost is going to be a recurring theme. I encourage the Minister to take that point seriously so that he does not get irritated with me. He is presiding over a system that is out of the financial reach of most of our fellow citizens. This legislation ought, to some extent, to reverse that procedure—not wholly, we are all sensible and grown up and there is cost attached to these legal procedures. However, as many people as possible ought to be enabled to use the law to defend themselves and that is simply not the case at the moment.
What I have said indicates that I have sympathy with the first amendment tabled by the noble Lord, Lord Browne of Ladyton. “Publication” and “the extent of publication”, “serious” and “and substantial”, fall in the same ball park and I look forward to hearing the Minister’s reply. I have pleasure on behalf of my committee as well as personally in speaking to both of the amendments in my name.
Lord Scott of Foscote
My Lords, Amendments 1 and 2 seem thoroughly sensible and I support them without hesitation. However, I am troubled by Amendment 3. If it is established that the alleged defamatory publication has caused serious and substantial harm to the claimant, that is an issue of fact and it will have to be made good by evidence. The judge cannot possibly come to a conclusion on an issue of fact of that sort until he has heard both sides. He must hear the claimant’s evidence that asserts that he has or is likely to suffer serious and substantial harm. If that is disputed, as it may be—if it is accepted, of course that is that—then he must hear evidence from the other side.
I do not see how one can have the statute telling the court how to deal with disputed issues of fact. Ordinary procedure of the court should deal with that. The parties can be required to give particulars of the case they rely on before the proceedings begin so that the matter is ventilated as fully as it may be. They can be ordered to exchange copies of their witness evidence so that that can be compared. However, at the end of the day, the judge must decide which of two sets of disputing evidence he is to prefer.
Lord Mawhinney
I am grateful to the noble and learned Lord. I quite understand the argument. If the guidance issued were to say, for example, that evidence had to be produced within a given—probably short—timeframe, which would have cost benefits, would that fall foul of the arrangement?
Lord Scott of Foscote
I do not think that would fall foul of it at all. If the parties are given sufficient time to collect and produce their evidence and provide copies of it to the other side, that is fine. However, once that has happened, the judge must come to a conclusion of fact. Once he has come to that conclusion, although it is unlikely to be appealed if it is on an issue of fact and he has heard the evidence, it is theoretically appealable and is not necessarily the end of the case.
Lord Mawhinney
Two things seem to be beyond dispute. One is that powers already exist for the courts to exercise their judgment over timing and that costs are escalating beyond the ability of most people to turn to the law for the defence that they are entitled to expect from the law. Given that those are both facts that I know my noble friend is relying on, how can he explain that not changing the first is likely to address the second?
Lord McNally
First, I have already pointed out that my noble friend’s concerns about costs are being addressed in parallel with the Bill. Secondly, as we go through the Bill, we need to look at it as a cohesive whole. There are other factors and proposals that deal with some of the problems he is concerned about. It may help the Committee, and the way that I want the Committee to work—we are in the Moses Room and so we will not divide at the end of these debates—if I say that I will listen very carefully to the contributions made by Members, look at the legal advice, whether unanimous or conflicting, and take the advice of my advisers. I see that as the best and most fruitful way of using this Committee. At this stage, I am trying to give the Committee an idea of the Government’s thinking thus far and what the background is to any particular proposal. That is not the final word on these matters, although it should not be taken as an encouragement that there is a concession in the offing. As an old hand, I hope that the noble Lord, Lord Browne, approves of the balance and that it will encourage my noble friend Lord Mawhinney, although not too much. We will see how these debates unfold.
The courts already have the power under Rule 3.4 of the Civil Procedure Rules which permits them to strike out all or part of a claim where there is no reasonable ground for bringing it or they consider it to be an abuse of process. The courts are very familiar with that power, and we have no doubt that they will use it more when this is in place.
Other lawyers have said to me that this will all be tested in the courts. Indeed it will but, to answer a point made earlier by the noble Lord, Lord Mawhinney, we are trying to lift the hurdle but are consciously trying to keep the balance right in what we are doing. I hope that noble Lords will be prepared to withdraw the amendment in accordance with the procedure for Committees in this Room. To take the point made by the noble Lord, Lord Browne, once people have had a chance to look at Hansard and at our thinking on any particular area, if they want further clarification, I would be very happy to talk to them. I hope that the noble Lord will be prepared to withdraw his amendment.
Lord Mawhinney
“Requirement of substantial financial lossSubstantial financial loss
A statement is not defamatory to a corporation or other non-natural legal persons that are trading for profit unless its publication has caused substantial financial loss.”
Lord Mawhinney
My Lords, I start by saying to the noble Lord, Lord May, how much I appreciated his earlier speech. This is the first of many occasions in this Committee that we turn to the issue that he raised with such clarity and emotion. I hope that as he read our report he felt that he and we were on the same side on this issue.
What to do with corporations in the context of defamation was one of the issues on which the Government wished us to consult. When they produced their draft Bill, it included 10 draft clauses and a range of about half a dozen issues that were clearly far too difficult for the Government to have come to a judgment on, and so they left it to us to offer advice and did not even bother trying to draft the appropriate clauses and remedies. We were happy to take up that challenge. We turn to the first of them now.
This is the first time that the word “chill” has been used in Committee and I assure my noble colleagues that it will not be the last. If any Member of the Committee is tempted to believe that the emphasis on the words “cost” and “chill” are overdone out of my mouth on behalf of the committee, I invite them to re-read the evidence given to our committee. Corporations do seek to exercise chill. I quote from paragraph 89 of The Government’s Response to the Report of the Joint Committee on the Draft Defamation Bill:
“It is unacceptable that corporations are able to silence critical reporting by threatening or starting libel claims which they know the publisher cannot afford to defend and where there is no realistic prospect of serious financial loss”.
That is the point that the noble Lord, Lord May, introduced in our earlier discussion. It is a form of bullying. It is trying to exercise right simply on the basis of size and financial strength. That is not what the law of the land is supposed to be about. I thought hard and long and decided not to trespass on Committee time by citing examples, but there are plenty of examples in the evidence that was given to us.
The key phrase is, where the publisher is known not to be able to afford, and where the corporation is not going to suffer, any “serious financial loss”. We took the view that corporations should not entirely lose the right to sue for defamation because things could be said about a company or its product that were so seriously untrue that the viability of the company was put at risk. We heard various suggestions about how this might be addressed—in the Australian model the ability to sue is limited to a company of 20 or 10 or fewer, if my memory serves me correctly. Therefore, we protected the right for corporations to sue but we linked it explicitly to serious financial loss.
I want to read the Government’s response because I say to my noble friend, with as much fellowship and camaraderie as I can muster, that I thought that this was one of his weakest responses to a perfectly sensible and balanced suggestion. Paragraph 90 states:
“We share the Committee’s view that the inequality of financial means that exists where a large corporation sues or threatens smaller companies, individuals or non-governmental organisations lies at the heart of current concerns”.
That was a longer version of what the noble Lord, Lord May, suggests. Paragraph 91 states:
“As indicated in our consultation paper, we believe that measures such as the new procedure for determining key preliminary issues”—
I am not quite sure what that new procedure is but I guess that we will learn in Committee—
“and the introduction of a serious harm test”,
is what the Government want. The committee wanted “serious and substantial”. I have to say to my noble friend Lord Lester that I did not think that he was making a light-hearted comment. But if we do not thrash out these issues here in order to inform the legislation, what is the point of us having Committee stage at all? I suppose that, fortunately for all of us, the public are not going to spend an undue amount of time on the esoteric arguments and the fundamental legal principles that we debate here. They are just going to look at the end product. However, we should not be ashamed of the process that we go through in order to arrive at the best end product that it is possible for us to offer to the people of this country.
The determination of,
“key preliminary issues and the introduction of a serious harm test will help to reduce the cost and length of proceedings and deter trivial and speculative litigation, and should lessen the likelihood of attempts being made by corporate or wealthy individual claimants to intimidate defendants with limited resources”.
I have to say to my noble friend that that is a spectacular case of hope over experience. Had he said that when he graced us with his presence, I would have glared at my colleagues to ensure that none of them smiled inappropriately at that point. I think that that is far short of the standard which Governments should set in responding to serious investigative efforts on behalf of Parliament.
It raises for me that old problem to which I have made reference already. Cost is at the heart of this and I hope that noble and learned Members of this Committee will have read our report with care. At no point did we seek to criticise or even directly comment on judicial procedures. That was not our responsibility. As chairman, I was not prepared to have anything written down which even hinted at a lack of confidence in the judiciary. But that having been said, we have costs that cannot be sustained and are counter to the legal rights of so many of our citizens. We have mechanisms that relate government to the judiciary. If case management, which is our unanimous view, is adding to cost, it needs to be addressed. We did not seek to address case management in the Bill, which would have been, in my view as chairman, inappropriate. However, we have to suggest to the Government that they need to find accepted and acceptable ways of conveying to the judiciary that changes need to be made in case management in order to reduce costs and thus make this Defamation Bill effective for the maximum number of people. I am afraid that what the Government said in response to that suggestion signals to me, at least, that we have failed to persuade them of the seriousness of that argument, and so I repeat it.
Lord Lester of Herne Hill
I am not sure whether the noble Lord has followed what the Minister was saying. The Government have asked the Master of the Rolls, Lord Dyson, to look at matters of procedure and to report as soon as possible. He has agreed to do so, so those matters are not in the Bill but are in the procedural forms that will accompany it. That is why they are matters for the judiciary to deal with, and so far as I am aware, they are going to deal with them as soon as they can.
Lord Mawhinney
As always, I am grateful to the noble Lord for his interjections. Let me cheer him up by assuring him that I was aware of that even before my noble friend said as much a little while ago. In fact, I remember being told that when we were holding our hearings. However, let me be plain about my difficulty here. This subject has been kicked into the long grass many times over the past 50 years, something my noble friend Lord Lester well knows because his was one of the balls that got kicked there. He is asking the Committee yet again to accept on faith a promise made by a Government Minister that there will be heaven tomorrow, but it falls just a little short. The truth is that while we will all await with interest what the judiciary decides would be an appropriate set of changes, if any, it is perfectly legitimate for Members of your Lordships’ House to ask the Government, “What changes do you think need to be made and what are you going to do about it?”. In essence, that is the question which lies behind the amendment, although it is in the framework for corporations.
While I am on my feet, perhaps I may say that so far as Amendment 8 is concerned, I thank the noble Lord, Lord Browne of Ladyton, and the noble Baroness, Lady Hayter of Kentish Town. It is extremely close to the wording used in our report, and in that I suspect that I am looking at the hand of the noble Baroness, Lady Hayter. I thank her for valuing it. I beg to move.
Baroness Hayter of Kentish Town
Before I speak to the amendment that has just been moved, and to Amendment 8 which is tabled in my name and that of my noble friend Lord Browne and the noble Lord, Lord Lester, perhaps I may also pay tribute to the noble Lord, Lord Mawhinney, for his work as chair of the Joint Committee. The Minister will recall, because he was at the Fabian Society even before I was, that we produced a book entitled The ABC of Chairmanship written by Walter Citrine. It was a brilliant book, but I have to say that I feel that a small codicil should have been added to it, having served under the chairmanship of the noble Lord, Lord Mawhinney, which is this: see how he does it because that is the best way to do it. I learnt a great deal from him.
As the noble Lord, Lord Mawhinney, has said, our recommendation comes from the Joint Committee and is broadly supported, including by Liberty, the Libel Reform Campaign, the Media Lawyers Association and Which?. As has been suggested, many of the cases which led to the pressure to reform of the law on defamation did not come from hurt individuals but from corporations, often using their deep pockets and access to lawyers to stifle public criticism of them or their products.
It was an American corporation that sued cardiologist Dr Peter Wilmshurst; the British Chiropractic Association sued Simon Singh; GE Healthcare sued Danish radiologist Professor Thomsen; Trafigura sued the BBC; manufacturers are forever threatening or trying to sue Which?; and McDonald’s infamously and, as it turned out, rather stupidly sued two individuals. Nature, the Lancet and the British Medical Journal—organisations that almost by definition exist for the public good—are no strangers to the threatening letters, mostly from corporations. Similarly, we heard in the Joint Committee from Mumsnet, which told us that it was very often the purveyors of baby foods and products, rather than individuals protecting their reputations as parents, which threaten to take action. It is often corporations which do not want negative reviews or sensitive information in the public domain that use this threat.
Yet the high cost of defending even a ludicrous claim brought by a corporation is an inequality of arms—or bullying, as the noble Lord, Lord Mawhinney, said. It is because a corporation can bring a claim where a defamatory statement is said to harm its trading or business reputation that a threat is all that is needed. The Joint Committee on Human Rights regretted the absence from the Bill of some reduction of the use of defamation proceedings by corporate claimants. Its view is that,
“businesses ought only to succeed where they can prove actual damage. The Bill should be amended so as to provide that non-natural persons are required to establish substantial financial loss in any claim”.
The report refers to the evidence of Professor Phillipson, who said that the failure to impose any restrictions on corporations’ ability to sue,
“renders the law on reputation inconsistent and incoherent. Defamation law and the protection afforded under Article 8 has developed on the basis that the protection of an individual’s reputation is a significant human rights issue. Corporate claimants have neither personal emotions nor dignity, and yet are treated as natural persons for the purposes of defamation”.
The report also quotes the Culture, Media and Sport Select Committee’s call for a new category of corporate defamation, by requiring a corporation to prove actual damage to its business before an action can be brought.
The Joint Human Rights Committee dismissed the MoJ’s refusal to countenance any change and concluded that,
“businesses ought only to succeed … where they can prove actual damage”.
Regrettably, as we know, the Government opposed a similar amendment to this in the Commons on the grounds that a corporation has a reputation, even where that does not affect its bottom line. We on this side accept that where damage to reputation affects the company's finances—for example, one can imagine an incorrect allegation that Perrier caused the current vomiting virus that is going around and that that affects the sales and the future of that company—redress should be possible in such cases.
Our amendment is modest. It does not seek to take away all rights for companies to sue, but would merely require them to show substantial financial loss before they were able to start an action.
Lord McNally
I have known the noble Baroness so long that I know when she is tempting me into sin. However, this has again been a very useful, very helpful debate. I confess that when I started out on this one of the things I wanted to do was to address the problems that have been faced by academics and others in making legitimate criticism and legitimate comments. Having listened to a large number of individuals and interested parties, there is no doubt in my mind that this law can have a chilling effect, and it is used very ruthlessly to stifle debate. I hope that we can do something to address this as we progress this Bill.
The noble Baroness, Lady Hayter, has obviously been very kind to me, because she did not point out that when I gave evidence to her committee I said that in my opinion corporations should not be allowed to sue. The then Lord Chancellor, Ken Clarke, took me into a quiet room, sat me down and, with the persuasiveness for which he is renowned, convinced me that corporations do have reputations and what the noble Lord, Lord Phillips, described as an ethical identity. This is a serious point, which has come out in the debate. As we go through the Bill, we are continually trying to get the balance between defending reputation and defending free speech. They are continually in our mind.
Regarding costs, I again point out to the noble Lord, Lord Mawhinney, although he clearly has doubts about the way these things are done in government—I do not know whether that comes from personal experience—that we have tasked the Master of the Rolls with the job of looking at this matter within a specific timescale: by next March. Since then, we have had a clear statement by the Prime Minister that the Government accept the recommendation by Leveson that there should be a cost-transferring system in defamation. Any powers of influence I have will be used to try to ensure that this is not go into the long grass. I am quite sure that the Master of the Rolls, Lord Dyson, will understand the urgency and the expectation that comes from the work with which he has been tasked.
Lord Mawhinney
I am grateful to my noble friend. I understand the point that he makes and he understands that part of the purpose of the Committee is—as we cannot vote—to put a little encouragement in front of him to think again. Regarding that, will he tell the Committee what the Government have said to Lord Dyson that they wish to see covered in the recommendations that he brings forward in March?
Lord McNally
In terms of what was actually said to Lord Dyson, if it is on the record somewhere, I will make it available to the Committee by next Wednesday. There is lots of clustering behind me. Even after two and a half years, I am still in awe of what happens behind the Minister.
The Civil Justice Council has been asked,
“to identify whether there are meritorious actions for defamation and privacy, which could not properly be brought or defended without some form of costs protection … if so identified, to advise … in which types of cases (or stages of cases) some form of costs protection should apply; and … what options for costs protection might be considered, with their advantages and disadvantages”.
Since then, there has been the added rider of Lord Justice Leveson’s opinion that cost QOCS should be applied to defamation cases. Therefore, I am sure that my noble friend’s scepticism will be noted by Lord Dyson and he will see that eyes are on him while he does this important work. Likewise, on the question of process, I refer to my letter of 10 December on early resolution—I think that this time I have the month right. We have asked the Civil Procedure Rule Committee to consider in the new year:
“The main issues which we consider should be determined early where they are matters of dispute are: Whether the statement is defamatory (including whether it satisfies the new serious harm test) … What the actual meaning of the words complained of is … Whether the words complained of are a statement of fact or opinion”.
The letter continues:
“We propose to seek the Civil Procedure Rule Committee’s agreement to provisions enabling either party to make an application for a ruling on any (or all) of the three issues listed above at the time of service of the particulars of claim (or at any time thereafter)”.
I hope that those changes in procedure will address this problem that has been highlighted as part of the issue. When I met Simon Singh, he mentioned to me that these issues of definition ran up the costs long before the case got to court. We are not going to cure everything, but if we can tease out of the system delays that work against individuals, rack up costs and cause this chilling effect, we will certainly be going in the right direction. I believe that on inequality of arms, the chilling effect, costs and early resolution we are in the right ballpark, as our American cousins say.
Corporations are a matter where we will listen to the Committee, but I must tell the Committee that in other places and parts of government there is strong resistance to conceding on this point. Let me provide the Government’s position. We recognise the concerns that lie behind Amendments 4 and 8, and the arguments that have been made by the Joint Committee and others in favour of restricting corporations’ right to sue in defamation. However, the Government believe that in this area there is a difficult balance to be struck. Clearly, businesses are often powerful and it is undesirable that they should be able to bully individuals or organisations with much more limited means by bringing, or threatening to bring, defamation actions, simply in order to stifle debate. Equally, we must recognise that businesses have genuine reputations to protect. They can be subject to unfounded or spiteful allegations that harm not just the management but shareholders and employees. This Bill seeks to make it harder for corporations or wealthy individual claimants to intimidate defendants with limited resources, but without removing their ability to seek redress where their reputation is genuinely damaged. The new test of serious harm will provide an effective deterrent to trivial and vexatious claims, regardless of who the claimant is.
It is also important to bear in mind the fact that corporations are already unable to claim damages for certain types of harm, such as injury to feelings. This means that to satisfy the serious harm test, they are likely in practice to have to show sufficient actual or likely financial loss. The serious harm test and other provisions in the Bill, such as the simpler and clearer defences and the removal of the right to jury trial, together with the accompanying procedural changes that we propose will reduce the cost and complexity of proceedings to the benefit of anyone trying to defend a case. In this context, the Government do not consider that the introduction of a permission stage for corporations would be appropriate. As part of the procedural changes that we are proposing, the court will be able to deal with the key issues in dispute at as early a stage as possible. An additional permission stage for corporations would almost certainly add to the costs involved.
Importantly, we have recently announced our intention to introduce cost protection measures in defamation proceedings. I referred to them as regards the Civil Justice Council. This will help address concerns in respect of cases involving an inequality of arms and will ensure that claimants and defendants of limited means are not deterred from bringing or defending defamation claims where the other part is a corporation, newspaper or individual with substantially greater resources. All told, we consider that this represents a fair and balanced approach that gives defendants of limited means significantly better protection than they currently enjoy and lessens the likelihood of intimidatory tactics being used against them, while also ensuring that corporations can still bring legitimate claims where their business reputation has been seriously harmed by unfounded allegations.
I have no objections at all to my noble friend Lord Mawhinney continuing to prod me on these issues, but I believe that the approaches we have made to the Master of the Rolls and the Civil Justice Council are the best and quickest way of addressing them. However, his continuing scepticism will be a spur to us all.
Lord McNally
Once again I shall use my ultimate defence: I am not a lawyer, so I am not going to say yes on the hoof. I also wonder whether the words “substantial financial loss” covers reputation, as was referred to by my noble friend Lord Phillips. However, as I have said throughout our debate, I am listening. When I go back to the Ministry of Justice, I will certainly sit down with my officials and talk about the points that have been made and ask whether any of them can substantially help what is still my objective, which is to deal with the real problems such as those that have been set out by the noble Lord, Lord May, and other noble Lords. These represent evidence of how, on the one hand, corporations can bully, intimidate and chill, while, on the other, they may have reputations that can and should be defended. That is the balance that we seek to strike. I will look at what my noble friend has suggested, and I look to my noble friend Lord Mawhinney to retain his scepticism, but to withdraw his amendment.
Lord Mawhinney
I accept without reservation the determination of my noble friend the Minister to face the real issues that surround this legislation. There is no doubt or scepticism in my mind about that. I am grateful to colleagues for what has been a good debate. Perhaps I may say to my noble friends Lord Faulks and Lord Phillips, and to the noble Lord, Lord May, that broadly I agree with everything they said. The committee decided very early on that we were not constituted to draft legislation. We did not have the ability, skills or the knowledge to do so and we did not think that that was what we were being asked to do. I accept that all three speeches made the point that the drafting could be improved.
How it is improved is, of course, a matter for the Government, not for the committee because the other thing that we were very careful to insist on was that we were not making the law but simply offering advice to the Government, and they would in due course present to Parliament what they thought the law should be, and Parliament would decide whether it agreed with the Government. Therefore, in all three cases, without going into the details of what was said, I accept generally the points that were made. I hope that my attitude of hitting the big issues and leaving the Government to do the drafting and fill the smaller cracks is the right way to proceed, although I particularly thank the noble Lord, Lord Phillips, for his phrase about wanting to encourage companies to re-enter the world of ethics. I am sure that he was speaking for the whole Committee when he said that.
I declare an unusual interest in that I am a life member of the Association of University Teachers. That interest is not often required to be mentioned. However, I mention it specifically in relation to the contribution of the noble Lord, Lord Triesman. As one of those who were subject to his leadership, I want to put on the record how excellent that leadership was. That qualifies him and what he said to be taken seriously by this Committee. I hope that the Minister will reread the noble Lord’s contribution several times.
I could not agree more with my noble friend Lord Lester of Herne Hill that certain things should be statutory and on the face of the Bill and that others should not be statutory and therefore not on the face of the Bill. I learnt through many a happy hour spent on the committee that case management was one of the things that should not be put on the face of the Bill, so I entirely agree with my noble friend. However, I have a caveat which he did not mention but which I should like to add to what he said: namely, we have to be confident that case management will be addressed non-statutorily and will be changed. I use the verb “changed” deliberately because the evidence was submitted to our committee over and over again that case management issues drove up cost, caused delay and huge irritation, and separated perhaps millions of our fellow citizens from the protection of the law. That is the case management that we have at the moment.
I am not being particularly critical and I do not have the skill or the knowledge to say what aspects of case management need to be changed but my committee was adamant that case management must be addressed. I add a rider. We did not suffer from delusions of grandeur. We did not believe for one moment that this was a penetrating shaft of light into our consciousness that had not occurred to anybody before. Indeed, if the Minister pushed me, I could probably find bits of evidence to support that statement.
That brings me back to reflections on Mawhinney’s scepticism. It is not arbitrary and capricious. It has a history, although not necessarily one that is identified with me personally. Our committee was delighted when it came to the conclusion, not least through the Minister’s personal efforts, that he wanted to take this subject seriously. I think that on the very first page of our report we welcome the fact that we thought he was taking it seriously because so many of his predecessors had danced round this maypole and then gone home and not taken any serious steps. So the Minister already has lots of brownie points in the bag. What we need to do now, with all good will, is to help him get across the finishing line. In reflecting what has been said on this amendment, I think that that will be helpful. Particularly at this time, we all recognise that there is a balance to be struck between defamation and taking measures that might inhibit economic growth, with all the benefit that that would produce.
However, I refer the Committee back to the noble Lord, Lord Phillips. It was he who introduced the concept of ethics, which is relevant to this conversation. I say to the Minister, we would all be saddened if there were nothing in the Bill that talked about corporations and their responsibilities. I mentioned earlier that we had a long debate about the values of codification as against writing new statute. The reason that we saw importance in codification from time to time was—a point made earlier by, I think, the noble Lord, Lord May, but if I am wrong, I hope to be forgiven—that ordinary people ought to be able to read the law of the land and understand broadly what it means.
The common law is hugely important but way beyond the understanding of the normal citizen, in terms of its actuality and potential change. It may therefore fail in some respect an important element of transparency that should characterise our laws. That is not—I repeat “not” in front of my noble and learned colleagues—an attack on the common law. This report does not attack the common law, which is hugely important in the way that we are governed and in the judgment, character and integrity of our judges. However, this is a case whereby putting some codification in Bill would send a message that corporations have responsibilities and that we are not impressed at the way that some of them occasionally discharge those responsibilities.
With that encouragement, I am happy to beg leave to withdraw my amendment.
Lord Mawhinney
“Requirement for action brought before courtAction brought before court
No action for defamation shall be brought before a court unless—(a) mediation or neutral evaluation has taken place;(b) voluntary arbitration has taken place; and(c) when a case has reached the court, the court has taken all reasonable steps to minimise delays and costs that will ensue in proceedings.”
Lord Mawhinney
My Lords, this amendment gets to the heart of one of the other major issues that we addressed in the committee, and on which multiple evidence was presented to us. Many people kept saying that a system should be put in place which stopped cases that did not necessarily have to do so going to the courts, and that many who were involved in potential litigation simply wanted someone to say, “Sorry” and/or withdraw what was said. They did not need a court case. They did not feel it imperative to be cleared in a court of the land; they simply wanted an apology. The evidence that we received was that this would be facilitated if the law laid down a requirement that before a case reached court mediation or voluntary arbitration had to be pursued. That might not take long; it might become clear fairly quickly to a judge that no mediation or voluntary arbitration in the world would resolve the matter, and that the case should go to court. However, we were not satisfied that these forms of solution were being pursued either often enough or seriously enough, and we thought that for that to happen, they needed to be in the Bill. For that reason, I am happy to move the amendment. I beg to move.
Lord McNally
Again, I will take that matter back. The noble Lord may be interested to know that my right honourable friend the Lord Chancellor who, like me, is not a lawyer, is much attracted by that idea. It is certainly worthy of consideration. Unfortunately, the noble Lord, Lord Hunt, is no longer in his place but if he and his colleagues come forward with some robust self-regulation for the media, mediation may well find its proper place in that area as well. A balance needs to be struck between the extent to which you can force mediation and the extent to which it can be readily available. I will certainly look at the point made by the noble Lord, Lord Triesman.
Lord Mawhinney
My Lords, I thank the Minister for putting on the record the Government’s reaction to these amendments. I understood the point made by my noble friend Lord Faulks, although I am not sure that I entirely buy it. Speaking on behalf of the committee, by putting forward these alternatives in this way we were trying to make the point that if something is on the face of the Bill it is not part of case management; it has to be done before case management actually starts. That goes back to the point that the noble Lord, Lord Triesman, made, which we had in mind: that is, the possibility of something that is a lot quicker, a lot cheaper and which can speed up a solution one way or another. My noble friend Lord Faulks is right: it could be an expensive addition. I want to encourage him to believe that it does not have to be that way. Clearly, both of us would want the “does not have to be” rather than the “might be”.
I say to my noble friend the Minister that if the problem is simply one of legal requirement, I am guessing that my colleagues on the committee would settle for early resolution, whatever the form in which it was framed in order to make it happen. The early, quicker, cheaper resolution—where cheaper does not mean inferior—was sought by the committee but, more importantly, by all those who gave evidence to the committee. When my noble friend gives definitive responses to some of these issues on Report, I hope that he will bear in mind the perhaps totally unfair perception which might linger that it is more important to the Government not to do anything that might cause even a tremor in the judiciary than to look for positive ways to solve the real problems to which he committed himself. Because I believe that he has committed himself to those real problems, I beg leave to withdraw the 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.
Lord Mawhinney
I shall read out a short excerpt from our report. Paragraph 87 states:
“Once our proposals for clarifying and simplifying the law are implemented, with jury trials in libel cases a rarity, and streamlined procedures that encourage early resolution, we see no reason why many smaller defamation cases should not be heard in county courts … with some appropriate training, we see no reason why there could not be a county court judge designated to hear defamation cases in most major county court centres in the regions”.
Defamation Bill
Lord Mawhinney Excerpts(11 years, 7 months ago)
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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.