Defamation Bill

Debate between Lord Phillips of Sudbury and Lord Sentamu

Tuesday 5th February 2013 Lords Chamber

[Lord Phillips of Sudbury]

At Second Reading, I devoted most of what I said to the issue of access to justice. I take my hat off to the noble Lord, Lord Puttnam, and his supporters, as well as the noble Baronesses, Lady O’Neill of Bengarve and Lady Hollins, for concentrating on the huge lacuna in this Bill and in the law of defamation generally. Let no one be under any misapprehension as to how unjust our law of defamation is. I speak as one solicitor—long in the tooth, it must be said—who has dealt over the years with defamation, from time to time. It is a scandal how much it is a plaything of the rich, completely beyond access by people of even ordinary means. So I am wholly emotionally in favour of what is intended by this set of amendments and the schedules.

I have listened to the noble Lord, Lord Lester, who never speaks with less than authority. At first hearing, I am not sure how all the points that he made would impact, but I accept at large what he has said. One has to hope that my noble friend Lord Fowler is correct, and that if we pass this set of amendments today the defects in them can be rectified either at Third Reading in this place or in the House of Commons or when it comes back to us. I am convinced that to leave this for another day would not be responsible of us—as the last speaker said. We must take the chance that we now have, defective though the amendment may be.

I add only one detailed point. My noble friend Lord Lester said that he was wholly opposed to the notion of exemplary damages pretty well willy-nilly. At least subsection (8) of Amendment 1 talks about exemplary damages for,

“a flagrant breach of … rights”,

of the claimant. Given the sensitivity of the relationship between the press and the citizenry, it might be an acceptable use of what is generally not desirable—exemplary damages, or the concept of it—in respect of a “flagrant breach”. Incidentally, subsection (8) of the amendment has in it a serious misprint. It talks about breach of a defendant’s rights when it should refer to a claimant’s right. That is but one of several matters that could and, I hope, will be improved in the course of this Bill through the two Houses. On that basis, I am in favour of the amendments going through.

[The Archbishop of York]

My Lords, first, I apologise that I was not in Grand Committee when the Bill was going through. The noble Lord, Lord Lester of Herne Hill, always speaks with great authority on human rights and the conventions, but I would have thought that this was not the Third Reading of the Bill. If it were, we would be coming to the end of the game. This is Report, so the noble Lord, Lord Lester, might put right the defects in the amendments so that when the Bill comes back at Third Reading it will be amended. So that argument does not hold water.

In the end, it is to do with trust. If trust is absent, what do you do? We all want to trust our newspapers, but what happens when there is no trust? The amendment proposes an:

“Arbitration Service for defamation and related civil claims against members of Independent Regulatory Board”.

Because it is to do, first of all, with a question of arbitration, I am attracted to it. I am attracted to it because the preacher from Galilee said that, if you have a dispute with your neighbour, it is better to try to settle it before you go to court, because when you go to court you may find yourself being given such a stiff sentence that you end up losing doubly. Therefore, I am attracted by the whole question of arbitration. The courts, of course, can look at whether the parties were willing or unwilling to engage in arbitration. If a person has been wronged and another person does not think that is the case, arbitration obliges them to have a conversation. It seems to me that we should accept Amendment 1 at this stage. Then the Government can perhaps suggest alterations to it. Certainly, the noble Lord, Lord Lester, is always very assiduous in correcting things that are not well put. Perhaps he can suggest alterations to the amendment.

I am not persuaded by the part of the amendment in the names of the noble Baronesses, Lady O’Neill and Lady Hollins, which seeks to delete subsections (5) to (7) of the proposed new clause in Amendment 1, although I may be persuaded by other parts of their amendment. Those subsections are very important. They set out what needs to happen. Therefore, I urge your Lordships’ House to pause and consider whether we really think that only the rich ought to have recourse to a remedy in defamation cases. The ordinary citizen could find redress very easily and quickly through arbitration. The press ought to welcome arbitration because it would cost far less than an elaborate court case, which may collapse in the end after a lot of costs have been incurred. When there is no trust, what do you do? You want to be in a position to rectify your situation. For those reasons, I support Amendment 1 and resist deleting proposed new subsections (5) to (7) from it.