Marriage (Same Sex Couples) Bill

Debate between Lord Phillips of Sudbury and Lord Lester of Herne Hill

Monday 17th June 2013 Lords Chamber

[Lord Lester of Herne Hill]

I will do my best. As the noble Lord, Lord Elystan-Morgan, has said, concepts of marriage have not been static in England or elsewhere. During the past three centuries, Parliament has made changes to the status of marriage. What was once traditional and discriminatory is no longer enshrined in English marriage law. The Bill is a further step in removing unjustifiable discrimination, not against Catholics, Protestant dissenters or Jews, but against homosexuals.

I think my noble friend Lady Williams will concede that gay and lesbian couples are just as able as heterosexual couples to love each other in long, enduring relationships. They are just as able to bring up children in the way good parents do, in lifelong relationships. Some noble Lords will have personal experience of their children in gay and lesbian relationships doing precisely that.

Traditionally, the law governing the registration of marriages was piecemeal, restrictive and discriminatory, beginning with the Act of Uniformity 1662 and Lord Hardwicke’s Marriage Act 1753, which abolished common-law marriages. In the 19th century, Parliament created exceptions, one by one, to that discrimination. Most recently, exceptions were made under the Places of Worship Registration Act 1855, not only for Protestant and Jewish dissenters but for other denominations and bodies, theistic and non-theistic, including Buddhists, Jains and Muslims, whose premises are registered for religious worship and the solemnisation of marriages.

Under Scots law, as the noble and learned Lord, Lord Mackay, knows well, marriages by cohabitation and repute could be contracted in Scotland until as recently as 2006. They were still regarded as marriages, even though they were irregular. A traditional marriage could also include a marriage between first cousins, an arranged marriage or a strange thing called a levirate marriage.

Until the Civil Partnership Act 2004, loving gay and lesbian couples could not get legal recognition for their enduring relationship. Now, they may do so. The Act has worked very well, even though it was strongly opposed at the time. However, even though the Civil Partnership Act gives them equivalent rights and duties to those of married couples, it forbids them from marrying and the words “civil union” add nothing to the notion of civil partnership. That is why it is a lesser concept.

A year before the Civil Partnership Act became law, there was an important case—which many of your Lordships will have heard of—Goodridge v Department of Public Health, in which the chief justice of the Supreme Judicial Court of Massachusetts, Margaret Marshall, presided. That court upheld the right to gay and lesbian marriage, rejecting the argument that some of your Lordships have made today and elsewhere, that civil union or civil partnership was good enough. The chief justice explained why, on grounds of due process and equal protection, the state did not have a rational basis for denying same-sex couples marriage. A majority of that court agreed that same-sex couples must not be assigned second-class status, which is what I suggest would be accomplished if any of these amendments were accepted.

The other place has formed a similar view about the need for same-sex couples to marry, as have the Government. I know of no judgment of our courts or of the European Court of Justice that suggests the need for amendments of this character. They would suffer from the serious vice of encouraging a belief in a need for a second-class status for same-sex couples to be enshrined in English law. If the House divides now or hereafter, I will have to vote against any of them.

[Lord Phillips of Sudbury]

Perhaps my noble friend might refer back to what the noble and learned Baroness, Lady Butler-Sloss, asked him, which was whether he objects to Amendment 46, in the name of the noble Lord, Lord Armstrong of Ilminster, which would give the term “matrimony” to a marriage between a man and a woman but would allow marriage to same-sex couples.

[Lord Lester of Herne Hill]

I have already explained my position, which is the same as the judgment I just referred to: that when it comes to marriage, gay and lesbian couples are entitled to total equality to that of opposite-sex couples.

Defamation Bill

Debate between Lord Phillips of Sudbury and Lord Lester of Herne Hill

Tuesday 5th February 2013 Lords Chamber

[Lord Allan of Hallam]

The right way is to keep Clause 5 as it is currently drafted. The Government have done a good job in drafting the scope of this defence as an additional measure to those currently available under the e-commerce directive. It makes sense to have this additional defence. My concern is that Amendment 11 would be an additional burden and further restrict the defence only to websites that have the ability to post a notice in this way. I imagine that a significant number of websites which could avail themselves of the defence in Clause 5 would not be able to do so if there were a requirement to post a notice. I can also imagine instances when such a requirement would be abused. It makes sense to leave it to the website operator, once they have received a complaint, to deal with it under Clause 5 as it is. I also think that it would be sufficient to encourage website operators to post notices when things are contested and they believe that a notice would fit with their environment and be helpful. There are instances when you need to mandate something and instances when you want to encourage it as a model of good practice. In the context of notices, the mandated option is wrong and the good practice option is correct.

[Lord Lester of Herne Hill]

Having spent about three and a half years attempting to reform the law of defamation, and in the light of what happened on the first amendment today, my overriding objective is to get the Bill through. I want to make it clear that I shall not be moving any of the amendments in my name this evening. I say that now in case anyone else, in their sad lives, wishes to do so. Having thought about it, I take the view that the regime as it stands, with regulations, will be perfectly capable of accommodating some of these issues properly and that we are now being overcareful and overprescriptive. I know that it is very unusual for a member of the Bar to indicate that he is under a decree of self-imposed silence, but that is my position.

[Lord Phillips of Sudbury]

My Lords, I listened carefully to what my noble friend Lord Allan of Hallam said. He will forgive me if I say that, coupled with what he said in Committee, there seems to be a leitmotif in his objections to amendments that really the industry is too big to control. That has echoes of the banks being too big to fail. The truth is that they are enormous organisations and with that enormity comes enormous power and the ability to inflict enormous damage on occasion.

I like the purport of Amendment 11. It seems right that, while the operator is considering what to do in the longer term, a notice of complaint should be there so that anybody reading the original defamation will see the complaint alongside it. I also understand some of the points made by my noble friend Lord Allan of Hallam. Perhaps in responding the Minister will tell us whether under Clause 5(5) it will be possible through regulations to introduce a regime for posting complaints and so on that would be practical in the variety of circumstances to which my noble friend Lord Allan of Hallam alluded. That would seem to be the obvious way to go: to take the time to work out a provision that works for all the different types of platform, and at the same time plays fair both by the operator and the complainant.

Defamation Bill

Debate between Lord Phillips of Sudbury and Lord Lester of Herne Hill

Thursday 17th January 2013 Grand Committee

[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 Phillips of Sudbury]

Before this mini debate concludes, I would just say that I agree with my noble friend Lord Lester about the particularity of the post of auditor. It is not like the lawyers of the company. They are not officials of the company; they have a unique role, and I simply put it to the Committee that they should be on the same footing vis-à-vis defamation as the directors. They are not as it stands because of the point to which the noble Lord, Lord Browne, referred. Clause 7 refers only to privilege extending to documents circulated by the auditors of the company, but proposed new sub-paragraph (3), where the amendment would bite, refers to documents circulated by the company to the members of the company. At the moment, it gives qualified privilege to those documents vis-à-vis appointments, and so on, of directors but not of auditors. I am saying that it should be there, but it can be reflected on.

--- Later in debate ---

[Lord Lester of Herne Hill]

I am not certain.

[Lord Phillips of Sudbury]

My Lords, I, too, am extremely unhappy with the amendment. To take a literal point, why only a senior figure in public life? Why not a senior figure in the private sector, for example, where the consequences of the substance of a libel trial may be at least as important as for a senior figure in public life?

Above all, this provision—although I perfectly understand that my noble friend Lord Mawhinney did not advance it in any spirit adverse to the principles of our legal system—as my noble friend Lord Lester just said, would create a privileged class of person. It is not compliant with equality before the law. What is more, it trenches on the discretion of the judge, which I believe is the only reasonable way of limiting the right of privilege of trial by jury, given that that judge will be able to take into account all factors that seem to him or her relevant in that particular case. I am also bound to say that I cannot think of another provision in English law that discriminates in this way. I hope very much, although this was persuasively argued by my noble friend, that it will not be given credence by the Government.

Defamation Bill

Debate between Lord Phillips of Sudbury and Lord Lester of Herne Hill

Tuesday 15th January 2013 Grand Committee

[Lord Lester of Herne Hill]

My Lords, that may be so, in which case I made a false point on that. However, my main point is that it is not enough—and the regulations seem to accept this, in draft—to simply say that it is defamatory. It must in some way indicate that it is unlawful. That is probably common ground in the way in which I read the draft regulations. If that is so, and that is what we are told in our reply, it may well be that my amendment will not be necessary.

In my attempt to be brief, I appear to be arousing too much interest. I give way to my noble friend.

[Lord Phillips of Sudbury]

I think I know what my noble friend means in the distinction between what is defamatory and what is unlawful. However, it would be helpful to be clear with the Committee what distinction he sees between “defamatory” on the one hand and “unlawful” on the other.

[Lord Lester of Herne Hill]

I am sure my noble friend Lord Phillips understands that I am speaking clothed in the majesty of the Joint Committee on Human Rights as well as my personal view. That committee and its advisers came to the view that simply saying “defamatory” was not good enough. All that “defamatory” means is that there is a false statement which is seriously harmful to the reputation of the claimant, whereas “unlawful” means that one also looks at what the Bill defines as unlawful and what the defences are. We are attempting to make that as clear as possible. Therefore, the complainant, in order to invoke this whole procedure, ought to do something more. It seems as through the draft regulations are aimed in that direction. I beg to move.

--- Later in debate ---

[Lord Lester of Herne Hill]

The Libel Reform Campaign is strongly opposed to this amendment but I shall not elaborate on what it says about it. I want to draw attention to one thing that may not have occurred to some Members of the Committee, which is how this debate will be regarded in Beijing. In Beijing, they have precisely this kind of amendment in their extraordinary firewall regulations because what they most want to do is identify political dissidents of one kind or another and then go after them for violating their internet regulations. This is exactly what they have and want to maintain, and if we give it any currency at all, they will use the fact that the United Kingdom has done so, even though our context is entirely different and we are not doing it to persecute dissidents and so on. I suggest that we should be very careful, in the lawmaking that we are indulging in now, to think about the transnational implications.

[Lord Phillips of Sudbury]

My Lords, I hear what my noble friend Lord Lester of Herne Hill has just said, and it is a very strong point. None the less, we have to legislate for our own circumstances. I come back to the point that we cannot leave the Bill in a state where individuals can be grotesquely, viciously and intentionally defamed, where huge platforms—website operators—can grow rich in allowing that to happen with total impunity and with no possible remedy for the individuals concerned. That cannot be right. I am reminded slightly of some of the arguments about the banking sector and the banks that are “too big to fail”. We cannot get into a mentality where website operators are too big to pay. We have never had a satisfactory answer for why website operators could not take out comprehensive insurance so that, if they were sued by individuals because of the defamations of those who post on their platforms, they could pay up in the normal way.

I have great sympathy for the way in which the noble Lord, Lord Mawhinney, put his case for Amendment 30, not least because we are all grappling with fiendish and unprecedented problems with no easy answer. Generally, I come down on the side of saying that nobody should have the right to defame others—in a way, incidentally, that will travel further and faster than any other system of publication in the history of the world—and be able to say, “Ooh, no, you can’t reveal my name; that’s a breach of my human rights”. There is another breach of human rights involved in defamation—indeed, it is worse because the defamer is doing it intentionally. I am, of course, taking the worst case. If you have to place in juxtaposition the vicious defamer on the one hand and on the other the possibility that that defamer’s particulars may have to be revealed by the website operator in the process of complying with our new legislation, I am afraid that I have to come down on the side of the person who has been defamed.

Defamation Bill

Debate between Lord Phillips of Sudbury and Lord Lester of Herne Hill

Wednesday 19th December 2012 Grand Committee

[Lord Phillips of Sudbury]

My Lords, I am grateful to my noble friend and sympathise with his predicament. In the light of what he has said, and as we have an opportunity to discuss this at a further stage, I will not move Amendment 15 at this time.

[Lord Lester of Herne Hill]

I am sorry—I am always very bad on procedure.

Clause 4 is at the heart of the Bill. The Government have done an extremely good thing. Originally, like my Bill, and like the judgment in Reynolds of the noble and learned Lord, Lord Nicholls of Birkenhead, there was a checklist of factors. In practice, the checklist proved unworkable. It was a list of factors that could not be weighed one against another. As the noble Lord, Lord McNally, said, there was great opposition to it. The Joint Committee on Human Rights, on which I serve, expressed the conclusion in paragraph 15 that the checklist was inappropriate and that we needed instead a generic test. The Constitution Committee expressed the same conclusion in paper 86.

The inventor of Clause 3 was Heather Rogers QC. The inventor of Clause 4—as it is proposed that it should be amended—is neither me nor the Government but Sir Brian Neill. He is in hospital at the moment, otherwise he would be here, but he will be delighted to know what is happening today. It was he who asked why on earth judges would need a checklist of factors when one could produce a proper, objective test coupled with a reasonable belief. One can then leave it to judges to decide on a case by case basis whether there has been responsible publication. Whether there has been such publication requires the answer to two simple questions. At least, the questions are simply stated; they are not always simply answered.

The first is whether, objectively, the publication is about something of public interest. The second is whether there has been responsible publication—I do not say responsible journalism because this applies to everybody, not just the press—in that in newsgathering, editorial judgment and the rest of it there has been compliance with the professional standards appropriate to a newspaper or to other circumstances. That means that this is not a charter for irresponsible publication. For example, if a newspaper publishes something that is defamatory and untrue, it cannot be covered by Clause 2. If it is not just a matter of opinion, it cannot be covered by Clause 3. If it is not covered by statutory or common-law qualified privilege, it cannot be covered by that. It can be covered only by Clause 4—and it has to earn it because this is a privilege that is being given in the public interest. It is not a privilege because the newspaper or whatever should have a special right. It is a privilege because the public, through the eyes and ears on the media, are entitled to have information provided to them on matters of public interest.

This is a far better solution than the one I tried to persuade the Law Lords of when I did Reynolds, which was the New York Times v Sullivan approach in the United States. What came out of Reynolds was a compromise on the American position. The reason why the American position does not make much sense—with respect to the great court that decided New York Times v Sullivan—is that it focuses on the identity of the publisher and not the content of the publication. It asks: is the publisher a public figure? That is the wrong question. It does not matter whether the publisher is a public figure. What matters is whether it is in the public interest to publish what is in the publication. In the United States—I say this as someone who greatly admires the American legal system—not just, for example, a servant of the state but a basketball coach or a restaurant owner is defined as a public figure because they want to find a way to say rude things about restaurant owners. The beauty of Clause 4 is that we have now got rid of the checklists, we leave it to the courts which are well capable of considering matters on a case-by-case basis, and there is a generic formula. I pay great tribute to my noble friend Lord McNally, under whose leadership all this has become possible. We have had great arguments about this in the past few months and he has listened. What has been produced, thanks to Sir Brian Neill, does not need any further amendment. It is fine as it stands.

Defamation Bill

Debate between Lord Phillips of Sudbury and Lord Lester of Herne Hill

Monday 17th December 2012 Grand Committee

[Lord Phillips of Sudbury]

My Lords—

[Lord Lester of Herne Hill]

My Lords—

[Lord Browne of Ladyton]

If the noble Lord will excuse me, I will give way to his noble friend the solicitor first; then I will get to the barrister.