Defamation Bill

Lord Scott of Foscote Excerpts

Monday 17th December 2012 Grand Committee

[Lord Mawhinney]

I think the truthful answer to my noble friend is that I cannot tell him that. However, my understanding from listening to hours of evidence is that pathways by which the Government can issue guidance already exist, and I assume that that would be covered by that arrangement. If this is not the case, I would encourage my noble friend, who knows more about these things than I do, to put down appropriate amendments on Report to clarify the issue that he has raised.

Therefore, it is question of new statute, not codification; of raising the bar; and of the judiciary making early judgments as to whether these cases before them should proceed. I stress that because—and I am not going to apologise to noble Lords—I fear I am going to return regularly through these sessions to one of the overwhelming judgments that we made. That was that the cost of defamation has risen to such an extent that it is driving way beyond the means of ordinary people their ability to seek the protection under the law to which they are entitled.

The committee occasionally, in trying to balance legal action against cost, came down on the side of cost. Legal niceties are good, important and proper but they are irrelevant if the ordinary man on the street cannot afford to go to law in the first place. Therefore cost is going to be a recurring theme. I encourage the Minister to take that point seriously so that he does not get irritated with me. He is presiding over a system that is out of the financial reach of most of our fellow citizens. This legislation ought, to some extent, to reverse that procedure—not wholly, we are all sensible and grown up and there is cost attached to these legal procedures. However, as many people as possible ought to be enabled to use the law to defend themselves and that is simply not the case at the moment.

What I have said indicates that I have sympathy with the first amendment tabled by the noble Lord, Lord Browne of Ladyton. “Publication” and “the extent of publication”, “serious” and “and substantial”, fall in the same ball park and I look forward to hearing the Minister’s reply. I have pleasure on behalf of my committee as well as personally in speaking to both of the amendments in my name.

[Lord Scott of Foscote]

My Lords, Amendments 1 and 2 seem thoroughly sensible and I support them without hesitation. However, I am troubled by Amendment 3. If it is established that the alleged defamatory publication has caused serious and substantial harm to the claimant, that is an issue of fact and it will have to be made good by evidence. The judge cannot possibly come to a conclusion on an issue of fact of that sort until he has heard both sides. He must hear the claimant’s evidence that asserts that he has or is likely to suffer serious and substantial harm. If that is disputed, as it may be—if it is accepted, of course that is that—then he must hear evidence from the other side.

I do not see how one can have the statute telling the court how to deal with disputed issues of fact. Ordinary procedure of the court should deal with that. The parties can be required to give particulars of the case they rely on before the proceedings begin so that the matter is ventilated as fully as it may be. They can be ordered to exchange copies of their witness evidence so that that can be compared. However, at the end of the day, the judge must decide which of two sets of disputing evidence he is to prefer.

[Lord Mawhinney]

I am grateful to the noble and learned Lord. I quite understand the argument. If the guidance issued were to say, for example, that evidence had to be produced within a given—probably short—timeframe, which would have cost benefits, would that fall foul of the arrangement?

[Lord Scott of Foscote]

I do not think that would fall foul of it at all. If the parties are given sufficient time to collect and produce their evidence and provide copies of it to the other side, that is fine. However, once that has happened, the judge must come to a conclusion of fact. Once he has come to that conclusion, although it is unlikely to be appealed if it is on an issue of fact and he has heard the evidence, it is theoretically appealable and is not necessarily the end of the case.

--- Later in debate ---

[Lord Browne of Ladyton]

I am enormously grateful to the noble Lord, Lord Lester, but perhaps my powers of advocacy have failed me with him once more. I thought I made it clear that I do not support the amendment for many of the reasons he rehearsed by reference to the document he read from—I am not sure what it was, perhaps it was the report of the Neill committee.

For all the reasons I have evinced, I think that it would be impossible to make this work, and I suspect that the noble Lord, Lord Hunt, also probably thinks that it would be incredibly difficult. I just want to repeat the point that we have some obligation not only to the Watson family but to many other people who have to live with the consequences of this sort of behaviour. We have to apply our minds to trying to find some way of giving them redress or at least a way of healing the damage that is done post mortem to the reputations of people who cannot defend themselves.

[Lord Scott of Foscote]

My Lords, perhaps I may add to what has been said. The inability to bring an action for defamation on behalf someone who is deceased does not prevent action being taken to prevent repetition of the untrue allegations that are being made if it can be shown that their repetition is likely to cause a breach of the peace. I came across such a case when I was a barrister and was once instructed to do something to stop lies, as I was told, being told about a deceased public figure. I said that defamation was not a runner but that one could get an injunction, not damages, to stop a repetition if there was a real likelihood of a breach of the peace. However, for that purpose, one had to get the consent of the Attorney-General. I applied to the Attorney-General, who refused to give his consent, and that was the end of the matter.

[Lord McNally]

My Lords, again we are indebted to my learned friends for enlightening this debate. Dealing with the reputation of the dead is a difficult matter. I recently had to answer a Question in the Lords about a pardon for Dr Alan Turing, and I answered by referring to the strict letter of the law as it now stands. I then found that someone had added a line to my entry in Wikipedia that stated that I was strongly opposed to giving a pardon to Alan Turing.

The issue is very difficult. As my noble friend Lord Hunt said, I saw Mr and Mrs Watson, and anyone who meets them cannot but be moved by the grief that they continue to feel. When I saw them in October 2010, the draft Bill was already starting its slow process down the slipway, and I suggested that they give evidence to the public consultation, which subsequently involved the pre-legislative scrutiny committee. Mr and Mrs Watson gave evidence and argued that the Government should allow proceedings to be brought in respect of defamed homicide victims. However, they were the only respondents who raised this issue, and neither the specific issue of defamation of homicide victims nor defamation of the dead more generally arose in evidence to the Joint Committee.

However, as has been said, the Watsons, who live in Glasgow, have raised this issue in Scotland, where it is a devolved matter subject to Scottish Law. The Scottish Government published in January 2011 a consultation paper, Death of a Good Name—Defamation and the Deceased. Analysis of that response has been published by the Scottish Government, but they have yet to indicate whether they are minded to propose any change to their law in this area.

I say again, as I said to Mr and Mrs Watson, that they should also cling to the judgment of the judge. That is the most sound and tested opinion of their daughter’s reputation, and it was clear and unequivocal in a way that I had hoped would have given them some of the comfort that they sought. However, I can imagine—and it does not apply just to famous people—that when things are said about loved ones after their death it must be extremely hurtful to those who have been close to them. Perhaps I should gently lob the ball back to my noble friend Lord Hunt in the hope that the handiwork he is undertaking in terms of a media response to Lord Justice Leveson and a regulatory body with teeth that bite might be an area where the teeth might bite if the media behave in the way that the Watson family suggested.

However, this amendment seeks to change the law in relation to the rights of representatives of deceased persons to bring defamation actions. It is not a provision for the avoidance of doubt. It is a long-established principle of common law that a deceased person cannot be defamed because reputation is personal. A defamatory statement about a deceased person accordingly does not give rise to a civil action for defamation on behalf of his or her estate. Relatives of the deceased also have no right of action unless the words used reflect on their own reputation. That reflects the central principle in civil proceedings generally that a claim for damages can be brought only by the person who has suffered the injury, loss or, in this case, damage to his or her reputation as a result of an act of omission of another person.

The Government believe that there will be significant difficulties with attempting to allow representatives to bring defamation actions on behalf of deceased persons. For example, in the event of defamation proceedings being brought by a representative of the deceased person, it would not be possible to bar that defendant from using the defences that exist to a defamation action. That would result in arguments over the truth of negative allegations about the deceased’s character, which inevitably would be distressing for their family and which could not be put to proof by questioning of the deceased.

Also significantly, this amendment does not propose to put any time limit on the period after death during which such an action would be brought. That potentially creates huge difficulties for historians wishing to engage in historical analysis and debate, especially given that there is no definition of representatives, which means that it would not necessarily need to be a close family member who brought the action on behalf of the deceased person. That could lead to a situation where a historian published a biography of a significant historical figure many years after that person’s death. He could be sued by a law firm or an individual with no close tie to the deceased person who was the subject of the potentially defamatory statement.

In the second subsection of the amendment, it is not clear to which individual the serious harm would have to be caused nor is it immediately apparent how a defamatory statement could cause a breach of the peace. However, it is because of the very serious legal and practical difficulties that I have already highlighted that the Government cannot support this amendment. For all those reasons, I hope that the noble Lord will withdraw it.

Perhaps I may say to the noble Baroness, Lady Bakewell, that the BBC and the police are investigating the Savile matters, and I think that I should leave it there for the moment.

On the point made by the noble Lord, Lord Browne, I have said before that I am amazed how often when I ask about a certain thing in the Ministry of Justice, they say, “Well, they do this better in Scotland”. I do not know whether that is a tribute to the quality of Scottish law, but it will be interesting when it is faced with the very real dilemma of where you draw the line. The noble Lord suggested a year or so, but wherever the line is drawn, there will be those who are just on the other side of it. It is a difficult dilemma, and you cannot but feel sorrow for the grief of those who are affected by it. I think that the Government are right to hold the line where it is but, as ever, we will keep an eye on other examples.