Defamation Bill

Lord McNally Excerpts

Tuesday 9th October 2012 Lords Chamber

Moved By

[Lord McNally]

That the Bill be read a second time.

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, first, I welcome the noble Lord, Lord Browne, as the lead opposition spokesman on the Bill. I look forward to working with him and with the noble Baroness, Lady Hayter, on it. I also welcome the noble Lord, Lord Ahmad, as my chief aide. He has taken over in the Ministry of Justice from the noble Baroness, Lady Verma, who used to placate me on the Front Bench from time to time and to help me through Bills. I should, perhaps, put on the record that I hope that the noble Lord, Lord Ahmad, will provide a link with Members in all parts of the House—not only on this Bill but on MoJ business in general. I look forward to working with him.

I am delighted to open this debate today as the Defamation Bill begins its passage through the House. The Bill fulfils the commitment in the coalition agreement to review the law of libel to protect legitimate free speech. I would like to begin by thanking those in the other place for their work on the Bill so far—in particular my right honourable friend the Secretary of State for Justice and Lord Chancellor, Chris Grayling, and his predecessor Kenneth Clarke. I also thank the Ministers, old and new, in my department who have assisted in steering the Bill through the other place. However, I consider that today the Bill has come home. Indeed, it was in this place that my noble friend Lord Lester of Herne Hill produced a Private Member’s Bill on this subject back in 2010. I would like to take this opportunity to place on record my enormous thanks to my noble friend Lord Lester, and to his expert team of Heather Rogers QC and Sir Brian Neill, for their advice and assistance to me and to the Ministry of Justice in helping us to develop the provisions that are contained in the Bill here today.

However, my vote of thanks does not stop there. The Defamation Bill was published in draft in the first Session of this Parliament for full public consultation and pre-legislative scrutiny. The Joint Committee of Parliament that was established to undertake that scrutiny was expertly chaired by my noble friend Lord Mawhinney. I am grateful to him and his colleagues on the committee for their very careful consideration of the issues and for their extremely detailed and helpful report. I have also made it part of my responsibilities to engage in discussions with a wide range of interests outside Parliament who have brought this issue to the forefront of public debate, many of whom have provided briefings to this House in advance of today’s debate. It would be remiss of me not to extend my thanks also to the many groups and individuals that responded to our public consultation on the draft Bill.

This Bill was built on a Private Member’s Bill, followed by consultation, pre-legislative scrutiny, a draft Bill and consideration in the other place. It is not a Bill that divides us on party lines. Indeed, I have made no secret of the fact that my intention in bringing this Bill before Parliament has always been to end up with legislation that works. I believe that it is timely because of the mounting concern in recent years that our defamation laws are out of date, costly and over-complicated. They give us the worst of all worlds by damaging freedom of speech without affording proper protection to those who are defamed.

Freedom of expression is the cornerstone of our democracy. In an open society, people should be at liberty to debate a subject without fear or favour, whether the matter is political, scientific, academic, religious or anything else. That is how power is held to account, abuses of authority uncovered and truth advanced. However, freedom of speech does not mean that people should be able to ride roughshod over the reputations of others without regard to the facts. Careers and indeed lives can be destroyed by false allegations that are incapable of properly being answered. The issue for our defamation laws is ultimately one of striking the right balance between protection of freedom of expression on the one hand and protection of reputation on the other.

The law as it stands has allowed a situation to develop where the threat of lengthy and costly proceedings has sometimes been used to frustrate robust scientific and academic debate, to impede responsible investigative journalism and to undermine the good work undertaken by many NGOs. Nor can it be a matter of pride when powerful interests overseas with tenuous connections to this country use the threat of British libel laws to suppress criticism as part of so-called libel tourism.

It is also a fact that our current libel regime is not well suited to the internet. Legitimate criticism sometimes goes unheard because website operators, as providers of the platforms on which vast amounts of information are published, often choose simply to remove material which is complained of rather than risk proceedings being brought against them. Meanwhile, individuals can be the subject of scurrilous rumour and allegation on the web without meaningful remedy against the people responsible.

We need to refocus and modernise our law on defamation so that it offers effective protection, whether offline or online, for both freedom of speech and the reputation of those who have been defamed. It is my hope that the Bill will do that, but I am well aware that this is new territory for legislation.

I now turn to the detail of the Bill. I see it as a first priority to ensure that the law is reformed so that trivial and unfounded actions for defamation do not succeed and indeed are discouraged from being started. Clause 1 therefore raises the bar for a statement to be defamatory by proposing that it must have caused or be likely to cause serious harm to the reputation of the claimant. Where the draft Bill sought views on a test of “substantial harm”, which was intended to reflect current law, the new clause draws on the views of the Joint Committee on the draft Bill and the balance of opinions received in consultation by nudging up this threshold. Our intention is to give more confidence to defendants such as those in some of the cases brought against NGOs and scientists in recent years.

Alongside a stronger test, we also want to simplify and clarify the defences available to those accused of libel. As they stand, they are unnecessarily complicated and too narrowly focused on cases relating to mainstream journalism rather than the online world, NGOs, academics, scientists and so forth.

The Bill also clarifies that qualified privilege extends to reports of scientific and academic conferences. In a further important step forward for the protection of scientists and academics, Clause 6 creates a defence of qualified privilege for peer-reviewed material in scientific and academic journals—again, as recommended by the Joint Committee.

There are also provisions seeking to address libel tourism, which has damaged this country’s reputation around the world as an advocate of freedom. Although relatively few foreign libel cases ultimately end up in British court rooms, I am concerned about the use of threatened proceedings by wealthy foreigners and public figures to stifle investigation and reporting. Clause 9 of the Bill addresses the issue in a measured and proportionate way while avoiding any conflict with European law. It clarifies that a court will not hear a case against someone who is not domiciled in the UK, another EU member state, or a state which is a party to the Lugano Convention unless satisfied that England and Wales is clearly the most appropriate place to bring the action. It should help to ensure that powerful interests around the world will not easily be able to use British justice to gag their critics, which is a move that I hope will be welcome across the House.

In addition to protecting freedom of expression and reputation, the Bill seeks to modernise the law. Currently, website operators are at risk of action for the content of material that they may host, even if they do not control the content. Most operators are not in a position to know whether the material posted is defamatory or not and very often, faced with a complaint, will immediately remove material rather than face the possibility of defamation proceedings, however real or remote that possibility may be. That leads to an unnecessarily chilling effect on free speech.

The Government want a libel regime for the internet that makes it possible for people to protect their reputations effectively but also ensures that information online cannot be easily censored by casual threats of litigation against website operators. Clause 5 of the Bill sets out a framework for how we wish to achieve this.

As your Lordships know, technology develops apace, and rather quicker than primary legislation. Had we sought to specify the detail of the system that we propose for the internet, we would have risked it being out of date before noble Lords had concluded their considerations. Rather, we propose that much of the detail will be set out in regulations. We will be seeking views on the content of these regulations by the end of the year.

The Bill will make significant changes to the law of defamation—changes that I would argue are very much for the better. However, they should not be seen in isolation. As I have already mentioned, one of the biggest areas of concern in relation to defamation proceedings centres on the costs involved. As the House will recall, earlier this year we had some debates about the costs and funding provisions on what is now the Legal Aid, Sentencing and Punishment of Offenders Act. Part 2 of that Act reforms no-win no-fee conditional fee agreements, or CFAs, to reduce costs and to make them fairer as between claimants and defendants. Those provisions come into effect in April next year, including for defamation and privacy cases. During those debates, particular concerns were raised by a number of noble Lords—the noble Lords, Lord Martin and Lord Prescott, and others—about the effect of our reforms on less well off parties. At that time, I acknowledged those concerns, and I gave a commitment to look at the rules on costs protection for defamation and privacy claims in preparation for when the defamation reforms come into effect.

I have asked the Civil Justice Council to help us on costs protection for defamation and privacy claims by looking at the case for it and options for reform. The council is an advisory body chaired by the Master of the Rolls. I have asked him to report by the end of March 2013. That will allow us to make, if appropriate, any rule changes in time for the Defamation Bill coming into effect.

In addition to the issues on costs, we are developing a new procedure to resolve key preliminary issues at as early a stage as possible, which was something that I know was of great interest to the Joint Committee. Currently, cases can drag on for too long before they reach full trial and that can lead to costs being built up unnecessarily. Getting early resolution of key issues often leads to early settlements. The Government are keen to encourage that. The Government are grateful to the Joint Committee for its recommendations, including those on the use of alternative dispute resolution in defamation cases. However, when looking at procedural reform, we need to be aware of the wider context, and recommendations that impact on this area may come out of Lord Justice Leveson’s report.

While I believe that it is important to wait for the outcome of the Leveson inquiry with respect to the procedural aspects of defamation reform, I am clear that we should not allow that process to impact on the content—or indeed the timescale—of our reforms to the substantive law contained in this Defamation Bill. Leveson is largely focused on issues other than defamation and should not be used as an excuse to delay this Bill. Opportunities to get this area of law right do not come along too often. There was a Defamation Act in 1952 and another in 1996. This is the first opportunity we have had to consider the law in Parliament since the explosion of the internet age and we might wait a long time for another chance. What is more—and with perhaps uncharacteristic modesty—the other place has left scope for this House to apply its expertise to this Bill. My approach has been to listen and apply the dictum of the late President Truman, “Spread a little of the credit and you will be surprised how far you can go”.

In another place, my ministerial colleagues at the Ministry of Justice made it clear that there is one area of the Bill in particular where we are reflecting in the light of the views we receive. This is in the area of the defence of responsible publication on a matter of public interest, contained within Clause 4 of the Bill. I am sure there will be more views forthcoming on that clause during the debate. I will be sure to take note of them and we look forward to further discussions on Clause 4 in Committee.

I believe that the package of measures contained in this Bill meets our aim of rebalancing the law in a fair and effective way, so that free speech is not unjustifiably impeded and so that debate on issues of public importance is able to thrive, while still providing appropriate remedies for those who have been defamed. It is a sound, reforming Bill and one that I hope can command cross-party support. I genuinely look forward to working with all parts of the House to bring forward a Bill of which we can be justly proud. In commencing our work, perhaps we should take on board the warning contained in the editorial in today’s Guardian, which says that,

“weighing free expression against protection of reputation is art as much as science”.

Fortunately, we have an abundant supply of both artists and scientists in this House. I commend the Bill to the House.

--- Later in debate ---

[Lord McNally]

My Lords, in opening the debate I said that I was looking for help in carrying the Bill forward. The tenor and content of the debate have lived up to my expectations. We also have the confidence of the other place, which knowingly passed us a good deal of work. Usually we complain that it does this without acknowledging it. At least this time it does and I hope that we can carry forward these discussions in Committee in a way that will produce the better Bill to which the noble Baroness, Lady Hayter, referred.

I acknowledge what the noble Baroness and others have said: that in many parts this is a consolidation Bill, aimed at clarifying the law and putting it into a place where people can clearly understand it. My intention has always been that, where necessary, we should take the law forward. In particular, as has been referred to, we are setting ourselves a pretty fierce challenge where the internet is concerned because of the speed of change. However, we should not duck away from it simply because we face rapidly changing technologies.

It is also good that there were voices in this debate that were not simply politically correct. It would have been very easy to say that we are all in favour of free speech and that it is very good, but the contributions of the noble Lords, Lord Sugar and Lord Triesman, and my noble friend Lord Phillips were important in saying that this Bill seeks a balance between the freedom of speech and the rights of journalists to pursue the truth and the rights of individuals to protect their reputation and in some circumstances their privacy. This debate had the necessary balance, which takes us forward to Committee.

On the question of defending the rights of business, the noble Baroness is right; this was raised in the Committee and I gave an opinion then. The Government’s considered view is that businesses have reputations that can be defamed and damaged and that they have a right to defend their reputations. There has been no great bullying by big business—the noble Baroness is getting into conspiracy theories. However, we can look at this in Committee. She also talks about the various organisations trying to hold business to account that can be bullied. Over the months that I have been working on this, I have heard enough hearsay evidence about the willingness to fire off lawyers’ letters and rack up costs or implied costs. I hope that some of the things that we are doing—the threshold and the reform of defence, particularly the public interest defence—address this.

Something that has also come up time and again in debates, which we will look at, is the cost issue and case management. I shall go back to the Ministry of Justice to find out how speedily we can respond, but I understand that when the House goes into Committee it will want information about some of the issues that we have said, quite rightly, that we want to manage by secondary legislation or by consultations with the judiciary. However, I also take the point that we need to give the House as early as possible the thinking and direction of travel in which we want to go in these areas. I take on board what the noble Lord, Lord Browne, asked me at the beginning: whether we would be able to publish some kind of timetable for bringing forward this further information. I will do my best.

When so much is to be discussed in Committee, I hope that colleagues will understand that summing up like this and dealing with the detail of some of the questions would probably run for about an hour. Here are the notes that my officials in the Box sent me to answer detailed questions. I also made 25 separate notes myself. I can try doing so if noble Lords want, but what I have taken out of this is that we have certainly got a number of things right, which people have welcomed. I notice the point that the noble Viscount, Lord Colville, made: that the Reynolds defence is too restrictive. That is partly why we have invited more comment. It is admitted that the clause that we have put forward will need further work. That is what I look to do in Committee, and I hope that this work will avoid the kind of back-street bullies that he described. We will also look at Clause 4, certainly in the light of the Flood judgment but also after a number of other comments made during the course of this debate.

There was interest during the debate—we shall probably discuss this further—about where to get satisfaction in these cases. A number of speakers referred to the wisdom of making sure that judges can order suitable corrections. Others warned us against putting judges in the editor’s seat. It is part of the nature of this debate that we have those differences. I was grateful for the kind comments of the noble Lord, Lord Mawhinney. I did not know that “serious and substantial” was the contribution of the noble and learned Lord, Lord Mackay. I always take very seriously anything suggested by the noble and learned Lord. A number of other people have given warnings. When we come to Clause 4 we shall look at this difference between those who want some guidance for those looking at the law and those who want to avoid a tick box. Again we can explore the best that we can get between ticking boxes and giving guidance.

A variety of people have commented on costs. I take them all on board. It was interesting that a number of speakers—the noble Lord, Lord Mawhinney, among them—referred to the case for putting arbitration and mediation into the process. This is a great desire, but how we do it, I am not quite sure. On some of this we may have to wait to hear what Lord Leveson is going to say. However, this Bill is not just newspaper-specific, of course, and I was very interested in the comments on the way in which arbitration is being offered on the internet. I take the point made by the noble Lord, Lord Lester, that we should not get blown off course by Leveson. We can deal with defamation without that being a cause for delay.

I am extremely grateful to the noble Baroness, Lady O’Neill, and indeed to all the scientists who contributed. One of my driving motivations has been to try to get something that would deal with the undoubted problems that scientists, academics and others face. The noble Baroness, Lady O’Neill, was realistic enough to realise that these are complex issues. As she said, this is the central piece in the jigsaw of legislation. I was pleased by the favourable comments of the noble Lord, Lord Bew. We are trying to provide legislation that gives genuine protection to the scientific community, and I look forward to working in Committee. If there are improvements that give that protection, we will certainly look at them.

The noble and learned Lord, Lord Morris, gave us the wise guidance again that, while protecting freedom of speech, we have to give adequate protection for reputation. He advised me to bring forward the promised regulations as soon as possible. I was interested as well that the general opinion was that we had got it right as far as jury trial was concerned. That is extremely welcome. The noble and learned Lord, Lord Morris, asked me whether there was any insidious read-across to criminal trials. Unless they are not telling me something, and unless he gets an urgent letter from me tomorrow morning, the noble and learned Lord can take this as an assurance from the Dispatch Box that there is no read-across to intentions about jury trials. The noble and learned Lord, Lord Morris, himself made the point that, with the internet, we must put flexibility into this legislation. I remember that when we debated the Communications Data Bill we kept on talking about “future-proofing”—much good that it did us. Future-proofing may be impossible in the modern technological age, but we can build in flexibility.

I much appreciated the contribution from the noble Lord, Lord Black, about the serious-harm test being good, and his comments that the Clause 8 single-publication rule is much needed but perhaps should be clarified.

I should perhaps say to the noble and learned Lord, Lord Lloyd, that I have conflicting advice on his point about Lord Ackner’s judgment. My officials have sent me a note saying that we will look at this and write to him, but the noble Lord, Lord Lester, passed me a note saying that of course we got it right. One of my great feelings of loss about this House is that Lord Ackner is not here, ready to tear whichever Minister happened to be at the Dispatch Box to small pieces with his analysis of the legislation. My view is that the noble Lord, Lord Lester, is probably right and that Lord Ackner got it right. We hope that we have got it right in this legislation.

The spirit of the debate, from the response of the noble Lord, Lord Browne, to the closing speech of the noble Baroness, Lady Hayter, reflects that we have been given a serious task to do and that this House will now set about that task. Once every so often—this time after 16 years—the House gets a chance to look at this very important area of law and we intend to do our job responsibly, seriously and with due pace.

I was not sure whether this had been agreed by the usual channels, but I think that the Bill has been moved to Grand Committee, which will be very useful for doing the work that we have set ourselves.

Bill read a second time and committed to a Grand Committee.