Defamation Bill

Debate between Lord Phillips of Sudbury and Lord Marks of Henley-on-Thames

Thursday 17th January 2013 Grand Committee

[Lord Phillips of Sudbury]

Oh, elegant. Well, they are certainly not elegant and certainly not eloquent. Nevertheless, they are designed to make life a little easier for whoever hereafter will read this Act of Parliament. They are very modest drafting amendments, putting the definition right up where it first appears in two places, dispensing with the need for subsection (2) and saving words—which is never a bad thing in legislation. It is as simple as that.

As to the much more substantial amendment moved by the noble Lord, Lord Browne of Ladyton, and supported by the noble Baroness, Lady Hayter of Kentish Town, I await what the Minister has to say with more than usual intensity. I can quite see that there are many issues of some subtlety around this that need, as always, to be weighed. I am inclined to support them but I am waiting to hear from him.

[Lord Marks of Henley-on-Thames]

My Lords, I support the principle of Amendment 44A moved by the noble Lord, Lord Browne of Ladyton. The single publication rule in this Bill is an important reform for avoiding multiplicity of actions and is thoroughly welcome, but its impact is markedly diminished by restricting its application to republication by the same publisher. I can see no justification in principle for restricting a claimant suing on a second publication by the original publisher but permitting him to sue on a publication at a later date by a second publisher.

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[Lord Marks of Henley-on-Thames]

My Lords, I rise briefly to support the amendment proposed by the noble Lord, Lord Mawhinney. Again, this was a recommendation of the Joint Committee. We took the view, I suggest rightly, that it is entirely correct that cases against those who are not domiciled here or in a convention country should be restricted if they are brought by claimants who are themselves domiciled outside the jurisdiction. But I do not think it right for a local potential claimant within the jurisdiction to be debarred from suing a foreign defendant for a libel that has caused the local claimant serious harm here, even if there may be other countries that are at least as appropriate. For example, an Italian newspaper could publish a libel in Italy and England that would cause a local English claimant damage in both jurisdictions. There may be reasons for the defendant to argue that Italy would clearly be the most appropriate forum for the resolution of the dispute but, as it stands, this section would debar the English claimant from suing in England.

The clause is intended to restrict libel tourism so far as is consistent with the Brussels and Lugano conventions. It does that, but it should not also restrict local claimants from suing foreign defendants here when their reputations have been damaged here, even if there may be other jurisdictions in which they might equally well or better sue.

The amendment achieves what should be the aim of the clause. I am not sure that the proviso relating to harm is necessary, because I would be content to rely on Clause 1 for the serious harm test. But subject to tidying it up, I suggest that the amendment proposed by the noble Lord, Lord Mawhinney, is entirely justified.

[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.

Defamation Bill

Debate between Lord Phillips of Sudbury and Lord Marks of Henley-on-Thames

Wednesday 19th December 2012 Grand Committee

[Lord Marks of Henley-on-Thames]

My Lords, I found the question of whether we should or should not have a list of factors in Clause 4 a very difficult one. In the Joint Committee I was certainly of the view—a view I expressed at Second Reading—that a list of factors would be helpful, primarily because it would enable members of the public to look at the statute on the internet to see what kind of factors might or might not be important in determining whether a publisher would be held to have acted responsibly.

I remember the arguments around this issue in Joint Committee, and my noble friend Lord Mawhinney may like to think back to them. However, I have now been persuaded that the list of factors arising out of the Reynolds case has been treated as a checklist and used by claimants and defendants alike, and by their solicitors, to put their opponents to very costly proof at the pre-action stage in a way that has tended to be oppressive and increase costs. There is a serious risk that a codified list of factors as set out in the unamended Bill would have the same effect. I now accept that a statement of general principle is the right approach, but I have reached that conclusion with some difficulty.

It is important to note that the way the test is now expressed in government Amendment 14 combines an element of subjectivity with an element of objectivity. That is really the answer to the question put by my noble friend Lord Phillips of Sudbury to my noble friend Lord McNally when he decided not to move his amendment. I am bound to say that I thought that my noble friend Lord McNally did himself an injustice in declining to answer the question because he had in fact already answered it in his opening remarks on his own amendment. The element of subjectivity is that the court will have to look at what the defendant believed, and that is a subjective test. It will then have to look at whether that belief was reasonable, and that is an objective test. That combination will enable the court to develop the law on the basis that it is an issue of fact which will necessarily take into account all the circumstances of the case. My concern is allayed by that because it seems unlikely that the case-by-case development—the cottage industry development to which the noble and learned Lord, Lord Morris, referred—will not create too much difficulty. However, it is a danger, and I hope that it is one that the courts will be careful to consider.

Amendment 15, tabled by my noble friend Lord Phillips—

[Lord Phillips of Sudbury]

I entirely take what my noble friend has said and agree with it. However, would it not be advisable, if only to help the general public and the lawyers? Under Amendment 14, in the name of the noble Lord, Lord McNally, the double test—the subjective and objective tests—which he outlined, could be more clearly enunciated.

[Lord Marks of Henley-on-Thames]

I am bound to say that I am worried about the way in which the amendment in the name of my noble friend Lord Phillips makes that suggestion. I appreciate that he does not intend to move it. It seems to me that one can do no better than require the court to look at all the circumstances of the case. As a matter of drafting, I am not entirely sure that the amendment in the names of the noble Lord, Lord Browne, and the noble Baroness, Lady Hayter, is necessary. It seems to me implicit that,

“all the circumstances of the case”,

have to be taken into account. That phrase is usually used in statute to say that all the circumstances of the case “included but not limited to”, and then it goes on to a checklist. We are not having the checklist so I am not sure that that requirement is necessary to be expressed.

My worry about the way in which my noble friend Lord Phillips—

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[Lord Phillips of Sudbury]

If it will assist the House, I will withdraw it post haste.

[Lord Marks of Henley-on-Thames]

I would rather that my noble friend Lord Phillips did not withdraw it. I was about to address it in terms that agree precisely with the interruption helpfully made by my noble friend Lord Lester but at a little more length. It seems to me that the amendment in the name of my noble friend Lord Phillips invites the judge to enter into a critique of the position of the defendant and, in using the words “manner, balance and content”, one is requiring the court to decide on whether the defendant should have written what he has written. That seems to me to be inimical to freedom of speech and to go very much against what this defence is trying to do. The importance of the defence is that it is a liberalising defence. It seems to me that that would narrow it in an unacceptable way.

Finally, I turn to Amendment 22, which, rather unfairly, I will comment on before the noble Lord, Lord May, has spoken to it. The question is whether the words used should be “editorial” judgment or “the publisher’s” judgment. It may be that one could argue for the use of both phrases but it seems to me that we need these concepts to go wider than simply editorial judgment. We live in a world where many of the statements to which this defence will be referable will never go anywhere near an editor: they will be published on the internet by individuals and will not bring editorial judgment to bear. It seems to me that the beauty of the amendment in the name of the noble Lord, Lord May, or something very like it, is that it allows for a publication with a much wider ambit than the government amendment. However, by and large, I support the government amendment wholeheartedly.

Crime and Courts Bill [HL]

Debate between Lord Phillips of Sudbury and Lord Marks of Henley-on-Thames

Tuesday 13th November 2012 Lords Chamber

[Lord Marks of Henley-on-Thames]

My Lords, I shall speak also to Amendments 35, 45, 46 and 47. These amendments would broadly remove the restriction of deferred prosecution agreements—DPAs—to corporate bodies, partnerships and unincorporated associations by permitting DPAs to be entered into with individuals and would instead restrict DPAs to cases where a sentence of imprisonment would not be likely on a guilty plea. The later amendments in my name, along with the amendment in the name of the noble and learned Lord, Lord Goldsmith, would widen the offences for which DPAs might in future be permitted beyond the range of financial or economic crimes.

To put these amendments in context, I welcome the innovation represented by the introduction of DPAs into this country by this Bill for two principal reasons. First, they are an effective device to ensure that criminal behaviour—sometimes very complex criminal behaviour—is met by a sanction. The compulsory imposition of a financial penalty, which is the subject of an amendment in my name in the next group, would ensure that that was the case. They bring about a saving of trials which in this country are, and have been, notoriously uncertain of outcome, as well as extremely expensive, so that they have used up a very large part of the criminal justice system’s overall budget. Secondly, they offer an opportunity for prosecutors to agree a programme of compliance requirements with offenders, and thus offer a chance to change behaviour, so they are part of the toolkit of the rehabilitation revolution, about which we have heard so much in the context of the Bill.

DPAs are for use only in suitable cases. It is important to avoid the worst excesses of such arrangements in the United States where it has been said that they have been used as the rich man’s route to plea bargaining. I suggest that they can and should be used to achieve voluntary compliance in the future with the requirements of the law across a range of fields. The limit on that is that it should not be acceptable for DPAs to be agreed where otherwise a sentence of imprisonment would be appropriate.

It follows that Amendment 23 removes the requirement that a DPA may not be agreed with an individual. In support of that amendment, I ask rhetorically the question, why the distinction? Why should it be that a criminal offence by a corporation, a partnership or an unincorporated association should be treatable by a DPA, but not an offence by an individual? As I suggested in the Second Reading debate we had in Committee, the question is not whether an offender is an organisation or an individual but whether the nature of the offence is suitable for a DPA. The distinction has been drawn that an individual can be imprisoned and an organisation cannot. But I suggest that that distinction is artificial because it is of course possible to provide that DPAs will be entered into only in cases where imprisonment would be unlikely in the case of an individual.

At Second Reading, my noble friend Lord Phillips of Sudbury suggested to me that nothing in the Bill explicitly stated that DPAs were not appropriate for an offence warranting imprisonment. The answer is that in the Bill as it stands such a provision would be unnecessary because it applies only to corporations, partnerships and unincorporated associations. But if it were extended to individuals, I suggest that it would be necessary to make it clear that it was not to be seen as an alternative to imprisonment.

I quite take the point made by the noble and learned Lord, Lord Goldsmith, at Second Reading, that, because of the behaviour-changing arrangements that can be made in DPAs, they might in some circumstances be suitable for drugs offences and the like which would otherwise warrant a sentence of imprisonment. At this stage at any rate, with this very new procedure, I would be wary of introducing a system that could be seen as allowing offenders effectively to buy their way out of a sentence of imprisonment.

Hence, under Amendment 35, we confine DPAs to offences not warranting such a sentence even if the limit to individuals were to be lifted. That would happen at the preliminary hearing where, on the application by a prosecutor for a declaration that a DPA might be appropriate, that would not be able to be granted were a sentence for imprisonment to be appropriate.

Amendments 45, 46 and 47 in my name and Amendment 44 in the name of the noble and learned Lord, Lord Goldsmith, concern the types of offences that might be made the subject of DPAs. The noble and learned Lord’s amendment would effectively allow the addition of any offence by removing the restriction to economic and financial crime. I should make it clear that my amendments are sample amendments only. They are not intended at all to be exhaustive and I have not attempted to conduct a trawl through the statute book to look for appropriate offences. They are intended to be probing and to give examples only of the way in which categories of offences might be usefully made broader.

Amendment 45 suggests that,

“a breach of regulations which is not punishable by imprisonment”,

taken at its broadest, might be an appropriate amendment. Amendment 46 deals with environmental offences under the Protection of the Environment Act. Some of those are punishable by imprisonment as well as by fines but, were the restriction to be only to those offences which would not be likely to warrant a sentence of imprisonment, that would be appropriate.

Similarly, health and safety offences seem to me—as indeed they seemed to be to the noble and learned Lord, Lord Goldsmith, at Second Reading—to be an appropriate area for such broadening of the offences. I have some experience from practice of the way in which the Environment Agency operates in respect of cases of environmental pollution. In fact, it has been operating for some time on the basis that it will agree not to prosecute offenders in circumstances where the offenders agree to pay compensation to clean up pollution and to put in place with the Environment Agency programmes of compliance with legal requirements for the future. That system works well and I suggest that it could be extended on a formal basis, as is suggested in the schedule, far more widely.

I ask noble Lords to support these amendments, and for the Minister to consider taking them back and doing something with them.

[Lord Phillips of Sudbury]

I am not getting at my noble friend because he referred to my intervention last time, but I hope that he will forgive me if I am misunderstanding this. Perhaps other noble Lords are also unsure as to the impact of the removal of the words, in paragraph 4 on page 261, line 32,

“but may not be an individual”.

Does that not mean that the only persons who may enter into a DPA with a prosecutor are the ones mentioned, namely,

“a body corporate, a partnership or an unincorporated association”,

so the removal of the words in his amendment will not actually make any change?

I see that my noble friend has tabled Amendment 24, which does refer to individuals. However, I wonder whether that is not, so to speak, negatived by the removal of those words; but, as I said, I may well have got this wrong.

[Lord Marks of Henley-on-Thames]

My Lords, my noble friend is, as always, entirely on the ball. My amendment is wrong in exactly the way that he mentioned. It should be “or an individual” rather than,

“but may not be an individual”.

So the words that ought to go are, “but may not be”, to be replaced by the word, “or”. For that, I apologise, and I hope that I will be allowed to alter my amendment accordingly. I am not proposing to press it in any event, but we can bring it back on Report if necessary, in a better form.

Crime and Courts Bill [HL]

Debate between Lord Phillips of Sudbury and Lord Marks of Henley-on-Thames

Tuesday 30th October 2012 Lords Chamber

[Lord Phillips of Sudbury]

I am most grateful to my noble friend. Can he tell the Committee where that provision is to be found in the proposed schedule?

[Lord Marks of Henley-on-Thames]

It can be inferred from the fact that there is a proposal that the prosecuting authority has to go to a judge at the preliminary hearing to persuade the judge that the case is suitable for a DPA. If a prison sentence ought to be imposed on the person “P”, that agreement would not be forthcoming. That, I suggest, would be the effect of the proposal, although it may be necessary to make it clear by amendment; I appreciate that.

My second point is that the offences covered in Part 2 are economic and financial, and only financial and economic offences may be added to the list by delegated legislation. I wonder whether the restriction, not as to the legislation but as to the offences, is entirely justified. Environmental offences, for instance, seem appropriate. There are other random examples of offences contrary to regulation that might be suitable, such as offences against fishing regulations regarding net mesh sizes and permitted catches. Those may be examples, and there are many more. There are other regulatory provisions where DPAs might be appropriate. Perhaps it may be as well to let us see how DPAs work with the offences listed in the schedule at this point and then look to amend the legislation in the future. Certainly as a member of your Lordships’ Select Committee on Delegated Powers and Regulatory Reform, I see the difficulty of adding large numbers of offences to the list by delegated legislation, as the noble Lord, Lord Beecham, pointed out. However, I suspect that our early suspicions of DPAs will wane in practice and that they may become tools of wider use and greater utility than is now envisaged.