Lord McNally
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(11 years, 10 months ago)
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The Deputy Chairman of Committees (Lord Geddes)
My Lords, it is now 2 pm. I have to start the proceedings as usual by saying that in the event of a Division in the House, which is extremely unlikely, the Committee will adjourn for 10 minutes. Before we come to the first amendment, the noble Lord, Lord McNally, has a statement to make which is not debatable.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, at the beginning of the Committee’s discussions on Tuesday, the noble Lord, Lord Browne of Ladyton, raised an issue in relation to legal advice which had been given to Rutland County Council. It suggested that the general powers given to local authorities in Section 1 of the Localism Act 2011 had overturned the bar on them suing in defamation, which was established by the House of Lords in Derbyshire County Council v Times Newspapers.
My officials have explored the issue with officials at the Department for Communities and Local Government, which is responsible for the 2011 Act. The Government are in no doubt that if a case were brought, the courts would still find that local authorities cannot bring action in defamation. The decision in Derbyshire was reached on public policy grounds, which we considered remain compelling. The House of Lords found that it would be contrary to the public interest for organs of government to be able to sue in defamation, and that it would be an undesirable fetter on freedom of speech. It must be borne in mind that Derbyshire was decided before the enactment of the Human Rights Act 1998. Consideration of Article 10 would only bolster the reasoning of the House of Lords in Derbyshire.
In any event, I can reassure the Committee that even if the issue was brought before the court and found to the contrary, the situation could be remedied by way of a statutory instrument under Section 5(3) of the Localism Act 2011. The power allows the Secretary of State to prevent local authorities using Section 1 powers to do anything specific in the order. In this case, an order could be made preventing any action being brought in defamation. I have already indicated in earlier debates our view that it is preferable for the courts to have the flexibility to continue to develop the Derbyshire principle, rather than to attempt to prescribe rigid boundaries in statute. That remains our view. In the unlikely event of any difficulty arising as a result of the provisions in the Localism Act, prompt action can be taken to address that without any need for primary legislation.
Clause 7 : Reports etc protected by privilege
Amendment 39
Lord McNally
When a Front-Bencher stands up, that is usually a signal that it is the end of the debate.
Lord Phillips of Sudbury
It is only a short point. Will the Minister confirm that the amendment will not affect a situation where a constituent writes to a Member of Parliament a brazenly vicious and malicious letter designed to cast some other constituent in the most deplorable of lights? I think that I am right in saying that malice would destroy the qualified privilege. On that basis, it might be worth having on the record that we are not by this amendment upsetting the law in that kind of situation, because it should not go that far.
Lord McNally
My Lords, the noble Lord, Lord Phillips, is the most frustrating of colleagues, because, the moment that I am tetchy with him about his cavalier approach to procedure, he then intervenes to make a very helpful comment. The question that he has asked, as well as the one asked by the noble Baroness, Lady Hayter, are ones on which I would be interested to hear the view of the noble Lord, Lord Mawhinney, because my reply is going to be to preach caution to the Committee.
I know that the noble Lord, Lord Mawhinney, unusually for him, expressed a degree of cynicism about how long the path ahead was for us on this, but I think that we should proceed with caution at this stage. It is an issue of relevance in a wider context than just defamation proceedings.
As noble Lords will be aware—and this is partly an answer to the suggestion of the noble Lord, Lord Mawhinney, that the Government were somehow dragging their feet—the Government published a draft Bill and Green Paper on parliamentary privilege in April last year. This sought views on a range of issues, including, in the broad context which I have mentioned, those which form the subject of this amendment and those in subsequent groups. Consultation on the draft Bill and Green Paper closed at the end of September, and a Joint Committee of both Houses has recently been established to consider the issue further. Therefore, in these circumstances we consider that it is clearly preferable for the issues relating to parliamentary privilege to be left to the Joint Committee to consider and take forward rather than pre-empting its considerations by including the provision in the Bill. No doubt, the deliberations of the pre-legislative scrutiny committee to which the noble Lord, Lord Mawhinney, referred and, indeed, these contributions will inform the deliberations of the Joint Committee, but on that basis I hope the noble Lord will be prepared to withdraw the amendment and leave the matter in the hands of the Joint Committee that has been established.
Baroness Hayter of Kentish Town
My Lords, the amendment in my name and that of my noble friend Lord Browne of Ladyton would extend the privilege set down in Clause 7(4) to local government. This is probably the existing intention of the clause; we can see no reason why it would not be. It is really simply for the avoidance of doubt that the suggested wording would give comfort to those local journalists who play rather an important role in propagating the work of local councils.
It would also be useful to seek some clarification from the Minister, to whom we gave some notice, about whether this clause covers the Welsh and Northern Ireland Assemblies—although the Bill does not cover Northern Ireland, reports of that Assembly could well appear in our newspapers and affect people here—and the Greater London Authority. I am fairly sure that it covers all of those and is about government in its broadest sense, but we want the wording to make that clear. I beg to move.
Lord McNally
My Lords, as an afterthought on my noble friend Lord Mawhinney’s approach to amendments, I can confirm that officials do wonderful work. However, his approach also reminds me of a story that the noble Lord, Lord Healey, told. When he was Minister of Defence, a man came to him with a solution to the Russian submarine menace: you boil the North Sea, and when the water has evaporated you can see where the submarines are on the seabed. Denis said to the man, “That’s fine, but how do I boil the North Sea?”. The man said, “Look, Mr Healey, I’ve had a good idea. Surely you and your officials should work out the practicalities”. That is just a passing thought.
I understand why the amendment has been tabled. I hope that my reply will clarify matters; I am not sure, given the presence of some very informed noble and learned friends. What I say at this Dispatch Box is of assistance to judges and courts when they make such decisions. I think so anyway, as a non-lawyer. Is it called Pepper v Hart? You see, I am learning on the job here.
Clause 7(4) extends the provision in paragraphs 9 and 10 of Schedule 1 to the Defamation Act 1996 on qualified privilege attaching to information published by legislatures, Governments and authorities exercising government functions. The changes ensure that the provisions also cover fair and accurate summaries of material and that the scope of the defence is extended to the relevant publications no matter where in the world they occur.
Amendment 39A amends the definition of governmental functions used in subsection (4) and in the 1996 Act to include a reference to local authorities as well as to police functions. We do not believe that this is necessary. We consider that local authorities are already covered by the reference to,
“any authority performing governmental functions”.
The Defamation Act 1952 covered information published,
“by or on behalf of any government department, officer of state, local authority, or chief officer of police”.
The 1996 Act was intended to extend this coverage. We are in no doubt that the reference to,
“any authority performing governmental functions”,
should be read as embracing the specific bodies referred to in the 1952 Act.
There is no indication that the absence of a specific reference to local authorities has caused any difficulty in practice. However, to take the specific point, we also believe that the devolved administrations would fall within the term “legislature”, which is used in the amendment to the 1996 Act made by subsection (4) of Clause 7 and elsewhere in relation to qualified privilege.
The Deputy Chairman of Committees
It is unusual to speak after the Minister, but there is nothing to prevent any noble Lord speaking.
Baroness Hayter of Kentish Town
There is no answer to that. On the first point, on the face of it, it appears to be not a bad idea. I think that some of us feel that half the problem is that auditors are not sacked often enough. On the Financial Services Bill, we went through many of the things that they somehow failed to notice. I cannot resist saying that the people who would be most likely to sue are, of course, auditors. Auditors are firms. If we were to get our way about resisting non-natural persons having the same rights as natural persons, perhaps we could get around it that way. That is partly because I cannot resist reminding the Minister of that.
On conferences, my fellow members of the Joint Committee said that we felt that the peer-reviewed nature of the documentation or the speech is important. However, in many of the cases of scientific conferences where action has been taken, it has been taken by a corporation. That is not wholly so, but very frequently, so there may be more than one way to skin this cat. We would support the rightful emphasis on peer-review.
Lord McNally
In relation to Amendment 40, the Defamation Act 1996 gives a defence of qualified privilege to fair and accurate reports of proceedings at a general meeting of a UK public company and to copies of and extracts from various documents circulated to members of such a company.
Clause 7(7) extends this protection more widely to cover reports in relation to companies listed on recognised stock exchanges worldwide and to summaries of such material. This includes material circulated to members of a listed company which relates to the appointment, resignation, retirement or dismissal of directors of the company. The debate has reflected this. In drawing up this Bill, we have constantly challenged about where we are drawing the line and whether it is the right place to draw the line.
Amendment 40 would in addition extend qualified privilege to material relating to the appointment, resignation, retirement or dismissal of the company’s auditors. We do not consider that this would be appropriate. Extending privilege in this way would give protection to reports on contractual material between companies and their auditors such as issues of appointment and dismissal. We consider that this would be an inappropriate intrusion into how companies conduct their business affairs which could impact on business efficiency, and that it is preferable for the focus of Schedule 1 to continue to be on protecting fair and accurate reports of material which is publicly available.
Amendments 41 and 42 would alter the way in which the Bill extends qualified privilege—
Lord Browne of Ladyton
I am grateful to the Minister for giving away and apologise to Members of the Committee since I did not take part in the debate on this amendment. It occurred to me as he was speaking, and I draw his attention to the provisions of his own Bill, that the place where he seeks to draw the line and the restriction that he seeks to maintain may well already be overtaken by the provisions of new sub-paragraph (2)(a) which subsection (7) seeks to add to the schedule. I cannot think of any circumstances where the kind of document that the Minister is talking about in such a meeting would not be circulated to the members of the company with the authority of the board of directors of the company. That information will already be privileged as far as I can see. I may be wrong, but it seems to me that the Minister’s concern about revealing private commercial business of this nature is already overtaken by the provisions which he seeks to put in the Bill.
Lord McNally
I doubt that. We are moving the extra line to where a company has made a decision to change its auditors, which will be reported to the members of the company. There may be a number of reasons for that, but the report will be suitable for the annual general meeting, and other issues, personal or related to performance, may be covered by it. As I have said, in a number of these areas, we are drawing lines. Where there is a relationship between a company and its auditors, I just wonder whether it would be entirely conducive to good working relations between them if a reason for dismissal which was extremely damaging to the auditors was privileged in this way.
Lord Lester of Herne Hill
My Lords, I am sorry to say that I cannot understand that. We are dealing with a public listed company; we are dealing with the resignation or removal of directors, which is a very serious step; we are dealing with qualified privilege, quite rightly, to give a fair and accurate report of that. The auditors are officers of the company performing a vital role. If they are mixed up with some wrongdoing that needs to be reported, we are dealing not with some private, contractual, sensitive matter, but with what is in the report to the shareholders about the public listed company. That is already there. I cannot therefore see any good reason for not including the auditors in that. It is nothing to do with an ordinary, private commercial relationship, so I agree with the noble Lord, Lord Browne.
Lord Browne of Ladyton
In the interests of clarity, I am not very pleased with how I put the argument earlier. I can put it much more simply. With respect to the noble Lord, Lord Phillips of Sudbury, I think that his amendment is unnecessary. The circumstances that he envisages in this sort of environment are already covered by the provisions of the government amendment that we all support. I cannot imagine that what he seeks to allow to be reported and to attract privilege would be circulated other than with the authority of the directors to the members of the company. I think that it is unnecessary but it may be an issue that needs to be thought about. I am concerned that perhaps in telling the Committee the line that has been adopted and to hold the line at a particular point, the Minister may already have crossed that line in any event by these provisions.
Lord McNally
I will reflect on that but I am also very concerned and do not want to enter a field regarding the professional relationship between auditors—or, perhaps I may respectfully suggest, lawyers—and companies, where there is a barn door left open. I understand, as indicated by the noble Lord, Lord Browne, that the intention of the proposal is to give protection. I am willing to reflect on whether where we have drawn the line is exactly right, and I will listen to expert opinion in this Committee. As a layman, I also feel a slight tingle between the shoulder blades about where we are going in terms of the relationship of professions such as auditors and lawyers with their clients. I, too, would like advice on these matters.
Lord Lester of Herne Hill
We are not supporting the amendment. We are urging the Government to accept that the amendment is not necessary because the matter is well within its scope.
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 Phillips of Sudbury
I am grateful for what the Minister said and for the contributions to the debate on this amendment which have prised out a matter not hitherto appreciated. However, rather than prolong this debate, I suggest that there be a conversation with the Minister hereafter and perhaps a return on Report.
Lord McNally
It might be an indication of how confused the Minister gets that it was subsequently clarified to me that the noble Lords, Lord Lester and Lord Browne, were both supporting me—something that I was not aware of when I heard their speeches.
Lord Phillips of Sudbury
That does not change my reply. I beg leave to withdraw the amendment.
Lord McNally
My Lords, just to give some sense of momentum on this, I can tell your Lordships that the Joint Committee that has been established on parliamentary privilege is asked to report by 25 April 2013.
I listened carefully to what my noble friend said. As always, he made an extremely well informed and well researched contribution, but can I just put to the Committee a political reality? We are dealing with probably one of the most sensitive areas of the functioning of our parliamentary democracy; that is, parliamentary privilege. There is not a snowball’s chance in hell of the Houses of Parliament in an area, which is so sensitive and so important, allowing this Committee and this Bill to make decisions which go ahead of what the Joint Committee is going to do.
As the Government’s Green Paper pointed out, the point of parliamentary privilege is not defamation or what is published in the newspapers; it is the right of Members of Parliament to conduct their business in Parliament. That is why parliamentarians are so careful and so jealous about how we should handle this.
Therefore, I am sorry to say that I can give my noble friend no other response than the one that I gave to the noble Lord, Lord Mawhinney: that the Joint Committee is now in being. Certainly, my noble friend’s contribution today will be well worth reading by that committee, but it is a matter for that committee and I urge my noble friend to withdraw his amendment.
Lord Lester of Herne Hill
I am grateful. I learnt this appalling word from Europe, comitology, which is the study of committees, and I have gone too much into the past committees. Although I am not surprised by the Minister’s reply, I am deeply disappointed by it, because what my amendments seek to do is extraordinarily important but modest. The first would clarify the 1840 Act on a completely non-controversial issue so far as that Act, which is all about reporting proceedings in Parliament, is concerned. The second amendment would remove what everyone has always agreed was a gross anomaly. We apparently will have to wait for yet another committee to look at this, but I am liable to return to it on Report, because I am not satisfied by the stonewalling. On that basis, I beg leave to withdraw the amendment.
Lord Phillips of Sudbury
My Lords, I briefly comment on what the noble Lord, Lord Singh of Wimbledon, said. I have to stick to my earlier analysis, but after hearing what he said, if his amendment had incorporated the purport of that I would have been very sympathetic to it—notwithstanding what my noble friend Lord Lester said, because his clause would address a different issue. The only question I have is whether the security for costs arrangements that can be invoked here might not come to the aid of the person to whom he refers.
Lord McNally
My Lords, this has been an extremely useful debate. From the beginning there has been a question of whether libel tourism exists, and there are varying views on this. Indeed, without breaking too many confidences, when I explained to a very senior member of the Government that we were trying to curb this so-called libel tourism, he said, “Are you sure? Should it not be the more the merrier?”. He had the idea that if foreigners wanted to come and use our excellent legal and judicial services they should be welcomed. In another respect, of course, we make a great play of the excellent facilities at the Rolls building for doing just that. However, there was a problem not only with the numbers but in the use of threats to stifle publication or opinion—the so-called chilling effect—and it is right that we have had this debate.
Amendment 48 would mean that the effect of the provisions on libel tourism reflected in Clause 9 would be narrowed as cases where the claimant is domiciled in England or Wales would no longer be caught even if the main impact of the alleged libel was outside England and Wales. The Government do not consider that narrowing the scope of Clause 9 is appropriate. It would mean, for example, that a Russian oligarch domiciled in England and Wales could sue a person outside the UK/EU in the English courts in circumstances where the alleged main harm to his reputation has occurred in, say, Uzbekistan.
Although I am sure the hearts of my colleagues behind me will sink, I have listened to the debate and I will study again the remarks made and the example given by the noble Lord, Lord Marks.
Lord Marks of Henley-on-Thames
Perhaps I may correct something that I have said. My example, which was off the cuff, of Italy was wrong: it ought to be the United States or somewhere outside the Brussels and Lugano conventions.
Lord McNally
I was just thinking that myself, but I did not want to raise it.
Broadly, at the moment we consider it is right that these cases should be caught by the test and therefore not automatically take place in our courts. Where a claimant in a case where the defendant is domiciled outside the UK, EU or Lugano convention states is unable to satisfy a court that, of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place to bring the action in respect of the statement, then he or she should be refused access to our courts and should be required to seek redress abroad. Such cases are not likely to arise with any frequency but, when they do, they give rise to legitimate concerns about libel tourism which uses up the time and resources of our courts.
We do not believe that the requirement to show that England and Wales is clearly the most appropriate place to bring the claim will cause undue inconvenience to claimants domiciled here who legitimately wish to bring an action in this jurisdiction to protect their reputation. It is likely that in most cases where a claimant is domiciled in England and Wales the Clause 9 test will be satisfied as the main harm to reputation will have been caused here and, in those circumstances, a claimant will readily be able to show that this is the most appropriate place to bring the claim. However, claimants should not be able to use our courts to pursue libel actions which are more appropriately heard elsewhere, even if they are domiciled here.
Amendment 49 would make a small amendment to Clause 9, but would have an undesirable impact on its effectiveness. Clause 9 provides that a court does not have jurisdiction to hear and determine an action to which the clause applies unless it is satisfied that, of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement.
Amendment 49 would remove “clearly”. We do not believe that this would be appropriate. Great concern has been expressed in Parliament and elsewhere about libel tourism. The amendment would reduce the strength of the test to be applied by the courts and could have the effect of leading to their allowing more claims to proceed in this jurisdiction in instances where the question of whether this is the most appropriate place to bring the claim is more marginal. We believe that most people who have commented on these issues would agree with us that it is important to give a signal to the courts that Clause 9 should be applied robustly, and that claims should be allowed to proceed only where this is clearly the most appropriate jurisdiction.
Turning to Amendment 50, I understand the point made by the noble Lord, Lord Singh, about drafting. Perhaps I may say in passing that as soon as he starts speaking my mind comes to mornings when I feel tetchy, down-at-heart and at war with the world, and his mellifluous voice comes on “Thought for the Day”, and, at the end of it, I always feel a little bit better about the world. The amendment would require an organisation or individual bringing an action against a person domiciled in the United Kingdom to provide evidence that it or he has funds in the UK to meet any costs that might arise were the action to be unsuccessful. As the amendment is drafted, this would apply where both parties are domiciled in the UK as well as where only the defendant is domiciled here. This would put potential claimants with limited resources at a serious disadvantage, as has been said by a number of those who have spoken in this debate. For example, it would mean that if an individual wished to bring an action against a national newspaper based in the UK, he or she would have to show that he or she had sufficient means to pay the newspaper’s costs, which could be substantial, in the event that the action was unsuccessful. This would considerably restrict access to justice.
However, the point that the noble Lord, Lord Singh, raised and the specific examples that he gave should give us pause for thought. As with the other points made about the way in which our laws are being used, the ability of those from abroad with resources to intimidate those making legitimate criticism of their behaviour should give us pause. The noble Lord, Lord Lester, gave assurances on that matter. As always with advice from the noble Lord, I wish to take it away and consider it, and ask my advisers whether the assurances that he gave are sufficient to protect against the abuses. How we protect against the kind of threat and intimidation that comes short of reaching court, I do not know, but perhaps one of the defences is that, when the Bill becomes an Act, people will be more aware of the protections in our law against such intimidation.
We recognise the concerns that exist about the costs of defamation proceedings for both claimants and defendants, and are firmly committed to reducing them. As I have mentioned in debating earlier amendments, the provisions on costs protection which we have asked the Civil Justice Council to consider, together with changes to the Civil Procedure Rules to support early resolution of key issues, will help claimants and defendants of limited means to bring and defend claims.
I have given noble Lords an assurance that I will look at this debate and see whether we have got the balance right. I am not sure that I can give any idea that we are going to give up “clearly”; I am going to defend that to the very last. I can see us at some future date on Report voting at 11.20 pm on whether “clearly” should stay in the Bill, with the noble Lord, Lord Browne, seeing an opportune moment to defeat the Government. Until that moment, I ask noble Lords not to press their amendments.
Lord Lester of Herne Hill
I shall explain in case I was not clear. I was trying to say that all the defences—the requirement of serious harm, the public interest defence, qualified privilege—will be able to be used as a shield against an unscrupulous claimant, and the double actionability rule would require that too.
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.
Baroness Hayter of Kentish Town
My Lords, when coming back to this it is helpful to have been a member of the Joint Committee and heard the evidence. Before I address the amendment, given that it is the only one on the clause, it is worth saying how important the clause is; the removal of the presumption in favour of a jury is one of the most important parts of the whole Bill. I thought that we ought to get that on the record. While juries are very rarely used, the fact that they can be used at all is what has added to cost with regard to the extension of time in this. They drag out action, mostly because they deny the ability of the judge to take early views on issues that, quite properly, they feel must wait in case there is a jury trial, so they have not been able to take an early view until the doors of the court swing open. It was our view on the Joint Committee not only that this was important for the reduction of costs but that we hoped that judges would seize the opportunity for some really good case management, and tried to pull this stuff back as much as possible to get the time and therefore the money reduced. I do not think that we will ever go quite as far as the American system of case management, but I think that we were mentioning an urge to be as early and robust as possible.
The Joint Committee did not go as far as saying that there should be no jury trials, although some people suggested that. As the noble Lord, Lord Mawhinney, has said, it seemed that there were cases, such as a judge, where, for reasons of public confidence, a jury would need to be there to ensure that it was not one judging their own, if you like. Again, as much for public confidence as for anything else, that could also mean people who were involved in appointing judges, or people who were very senior in Government. In such cases an independent jury is there as much to give the public confidence in the hearing as for any great insight that the jury may bring.
The feeling of the Joint Committee, which I support, is that such cases should be few and far between. Most importantly, the Bill, and I think that this is the purpose of the amendment, should signify that we are talking about a very few cases in exceptional circumstances. This does not really relate to a TV star or a celebrity, in the word of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, or an athlete or the head of a business. We were looking more at those people who are involved in the broadest sense in the judicial and legislative process who, to the outside world, perhaps seem a bit cosy. Those are the sorts of cases that would be the exception.
We were looking for some indication to be given, because otherwise the fact that there could be a jury will have exactly the effect that has been suggested—possibly more cases, and people arguing that they should have a jury. We therefore want to try to shut that off as early as possible. A final decision still has to be made by a judge. Whether it is easier or harder for the judge to do that, it is important that they are given some guidance. Those in our Lordships’ House who have been judges know better than I whether it is easier or harder to do that without guidance. In a sense, guidance needs to be given to those who might be either claimants or defendants about whether they have a small or a large chance of getting a jury trial. They need to know that the circumstances are very limited.
We were partly searching for some indication to be given that we are talking about a very small number of cases. Cases where public confidence would almost demand that they were heard not simply by a jury should be few and far between. We look forward to the Minister’s response on this.
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 Phillips of Sudbury
My Lords, I cannot clearly say whether I do or do not support these two amendments as they have all sorts of ramifications and implications. What is common ground between the noble Lord, Lord Browne, and the noble Baroness, Lady Hayter, is that the position of not only the impecunious would-be litigant, but that of the not-well-off would-be litigant in relation to defamation, whether as plaintiff or defendant, is astonishingly unsatisfactory. It makes this branch of law, more than any other, one in which equality before the law is frankly mythical, unless one finds an extraordinarily public-spirited solicitor who will in effect act for nothing if his client’s case collapses. Even then, there would be costs possibilities for the poor litigant, whether as defendant or plaintiff, in that he or she may end up having to pay the other side’s costs. All I am doing is sympathising with my noble friend Lord McNally in having to answer these two issues. At the moment, there is no ready answer, although the idea of changing the recently passed LASPO legislation for defamation has its own problems if one believes, as I do, that the methods of paying lawyers under the conditional or contingency fee system have led to great problems of public interest. That is a rather ineffectual contribution to the debate on these two amendments.
Lord McNally
My Lords, I will not, at this hour, reopen the debate on LASPO except to say that what we were addressing, following the advice of Mr Justice Jackson, was the inflationary effect of the no win, no fee regime that we have replaced. How it will work out in terms where any success fees will be paid from damages we will have to see. But let us not be in any doubt that there was a problem that was generally agreed had an extremely inflationary effect on the cost of justice in this country.
Lord McNally
My Lords, it has taken me till the fourth day of this Committee to rumble the noble Lord, Lord Browne. Beneath his metropolitan, urbane and sophisticated exterior, there is a canny Scot. My absolute copper-bottomed assurances on dealing with costs are met with a clear assurance that that will not be delivered without him battering us on to deliver. Now he notices a bandwagon on county courts that was rightfully set rolling by the Committee and he immediately claims it as his own. I can see him now, ticking off in his memoirs the influences that he has had on the Bill. I hope that when he gets home tonight he will read to his wife the passage about “metropolitan, urbane and sophisticated”.
Let me be clear that defamation cases can be started in a county court at the moment, although both parties must agree to this in writing. That is the position under Practice Direction 7A to the Civil Procedure Rules, but I freely acknowledge that it may be that we should revisit those procedure rules. We will give the issues involved very careful attention, and I sincerely welcome this very useful debate and the suggestions that have been made. The Lord Chancellor already has broad powers to allocate business between the High Court and the county courts. When the noble Lord, Lord Faulks, raised the matter earlier in our proceedings, I think I mentioned that the Lord Chancellor has expressed his interest in this idea. The Lord Chancellor’s broad powers are under Section 1 of the Courts and Legal Services Act 1990. The provisions in the Crime and Courts Bill to establish a single county court, which the House has approved, will preserve this power.
I therefore assure noble Lords that we are very interested in this idea, but it does not need primary legislation to carry it forward. If we consider the use of county courts to be appropriate, the necessary procedural changes to enable that to happen can be put in place. I hope that that is a firm enough indication of direction of travel. I tore up my notes and changed them to that very positive response because of the persuasive case that the noble Lord, Lord Browne, made in opening this debate. In the mean time, I hope that he will withdraw his amendment.
Lord Browne of Ladyton
My Lords, I am grateful for the support of the noble Lords, Lord Marks of Henley-on-Thames and Lord Mawhinney, but I am not surprised by it because the amendment draws support already from the report of the Joint Committee. I am grateful also for the overt support of the noble Lord, Lord Phillips of Sudbury.
I have to thank the Minister for his flattering if somewhat inaccurate and probably libellous description of me. It is unworthy of him to suggest that I am a bandwagon-jumper in any sense. I will privately produce evidence to him that this is an issue which I have been discussing with members of the legal profession in England in various guises for some months now, because it is not entirely what he and the noble Lord, Lord Faulks, described and discussed. This very specific provision is presented in this fashion, taking advantage of the specialist Patents Court, to make another criticism that I think the Minister will have to face should he seek our shared ambition of moving these cases to the county court—that is, there are already specialist judges who do these cases, but they are in the High Court. There will be, I predict, resistance on the part of the judiciary, among others, who will say that this difficult, complicated work, which requires High Court judges, has to be kept there.
The reason why I presented the amendment in this fashion, having thought about it for some time—since long before the exchange between the noble Lord, Lord Faulks, and the Minister took place—is that I cannot think of a more complicated area of law and fact than patent law. If a specialist court at county court level, with specialist judges, works for that area of the law, then I believe it can work for defamation.
I am also told that it is in the nature of the legal profession that our very senior judges tend to have been in the profession for a period of time and retire. I am not entirely sure what further lifespan on the Bench—that is the wrong phrase—what further time on the Bench the judges in the High Court who are specialists on defamation have. Although I do not know this, the suggestion was made to me that there is a probability that they will retire, or at least that a significant number of them may, within a comparatively short time. I am not sure whether that is right but they will have to be replaced sometime, and it should not be beyond the ability of the legal profession to produce judges at county court level who have this specialism.
I am not entirely sure whether the Minister is right that the creation of a specialist court or courts, such as the patent courts, does not require primary legislation. If it does not then I am interested to know why the patent courts were created by primary legislation if we can create specialist county courts without it, but maybe the law has been changed since they were created.
Lord Browne of Ladyton
I am grateful for that intervention from the noble Lord, Lord Phillips. The best that I can say is that I am sure the Minister has heard that suggestion, and when he is deliberating further on this potential development I am sure that he will take into account.
I am reassured that this is sufficiently high among the Government’s priorities to be a possibility—that is the best that we can expect at this stage. We will continue to keep an eye on this issue while the Bill is before the House.
Lord McNally
The noble Lord asked a specific question on the powers to create a court in this area. The amendment is clearly based on the provision for the Patents Court in the Copyright, Designs and Patents Act 1988, which is being repealed as part of the provisions of the Crime and Courts Bill for establishing a single county court. It is superfluous because powers already exist to allocate jurisdiction as between county courts or, in future, in the single county court and the High Court under Section 1 of the Courts and Legal Services Act 1990.
This also gives me the opportunity to withdraw my scandalous assertion; I was just getting a bit demob happy in asserting that the noble Lord jumps on bandwagons. I stick by “metropolitan, urbane and sophisticated”, though, because I know how much trouble that will give him back home in Scotland.
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 Phillips of Sudbury
I associate myself and these Benches with the most recent remarks of the noble Baroness, Lady Hayter.
Lord McNally
A few weeks ago in the House I tried to make a Churchillian quote and got it completely messed up. I shall have another go.
“This is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning”.
I have got it right this time.
The only doubt I have had is about how vigorously the Committee have taken up my invitation for discussion. I will not make that mistake again. Next time, I will be utterly Stalinist in ramming the Bill through.
Our considerations of the Bill have been extremely useful. The constructive way in which the Opposition have approached the Bill and brought their experience to it, and the fact that the noble Lord, Lord Mawhinney, has seen his duty as chairman of his committee not ending with the delivery of the report but has helped and guided us on the thinking behind so many of the recommendations, have been extremely helpful. My colleagues on these Benches have been extremely helpful and it has been great to have the help of some distinguished judges.
We now move on to Report and it is rather sad that I cannot accept the final amendment tabled by the noble Lord, Lord Mawhinney, as it stands. He was an experienced Minister and will know that the two things that I have been told to avoid, even in my brief ministerial career, are annual reports to Parliament and sunset clauses, which are usually the stuff of Opposition amendments. I cannot accept an annual report because, as the noble Lord will know, arrangements already exist for post-legislative scrutiny. The Ministry of Justice is committed to fulfilling the requirements of post-legislative scrutiny in relation to this legislation.
However, taking up the point which was partly implicit in what the noble Lord, Lord Mawhinney, said and in the final remarks of the noble Baroness, Lady Hayter, I cannot make commitments on spending money in the Ministry of Justice because we have not got any. The noble Baroness is absolutely right that once this legislation is passed, a simple guide for laymen and laywomen on what we have done, how we have done it and how it will be applied, both on our website and in printed form, would be extremely useful. In that spirit I will take away the amendment and hope that the noble Lord will withdraw it.
Lord Phillips of Sudbury
Would it not be possible to think of what was done in the Charities Act 2006? This is landmark legislation in defamation. Could there not be a review within four or five years, which would not impose, obviously, the obligation of an annual review but would ensure that this did not go by the board because there was another Government with other priorities?
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.