Defamation Bill

Debate between Lord Scott of Foscote and Lord Browne of Ladyton

Wednesday 19th December 2012 Grand Committee

[Lord Browne of Ladyton]

My Lords, the Committee will be pleased to hear that—broadly for the reasons articulated so well by the noble Lord, Lord Lester of Herne Hill, about the purpose of the clause—I do not intend to speak for very long on Clause 3. Our Benches support the clause, although we recognise that in doing so we are not saying that it cannot be improved. If any of the amendments in this group can improve or assist the purpose of this clause, we will be happy to support them.

I regret to tell the noble Lord, Lord Lucas, that while his proposed amendments raise an interesting aspect in the discussion about the difference between facts and opinions, I have to say that I am inclined to agree with the view of the noble Lord, Lord Lester of Herne Hill, which is that the only fact that must be established in the example of a restaurant review is that you can prove that you have eaten in the place. I cannot support his amendments, although I will be interested to hear what the Minister has to say about the degree of certainty that one can have now when operating in the area of opinion, so that one can avail oneself of the defence offered by this clause in the future, as opposed to in the area of fact. However, I suspect that one would not want to raise that issue in a room full of lawyers because the position is unlikely to be clearer at the end of the discussion than it was at the beginning. It may be better just to leave it to ordinary people to decide whether or not they are dealing with opinion. It is the sort of thing that one knows when one sees it.

On the amendments spoken to by the noble Lord, Lord Phillips, I anticipate to a degree that the response will be that they are unnecessary. I hope that the Minister will be convincing in his explanation that they are, but the noble Lord has raised important issues around the adequacy of information that would allow people to take a view as to whether the opinions being expressed are supported by facts. If they are the reporting of other people’s opinions or statements, there has to be some information available to allow people, outwith court proceedings, to come to a view as to whether the opinions are justifiable in the circumstances of the facts that have informed them. The noble Lord has done the Committee a service by identifying this issue. I am not entirely sure that his amendments would improve the clause, but I shall leave it to the Minister to defend the drafting.

I turn to the very specific amendment tabled by the noble and learned Lord, Lord Lloyd of Berwick. We cannot say that we have not had notice that this amendment was likely to be brought forward because the noble and learned Lord raised this issue in a short contribution made on Second Reading, when he asked a series of very specific questions. My recollection is that he got a positive response from the Minister, who indicated that he agreed with his view. I thought that the noble and learned Lord explained the point compellingly in terms of the House of Lords’ decision in Telnikoff v Matusevitch, saying that it is not good law. However, I suspect that the noble and learned Lords who considered that decision did not think that it would be further appealed in the House of Lords some 20 years later. The question, of course, is whether the issue needs to be addressed. I think that the mood of the Committee suggests that this is not good law, but there is a question of whether it needs to be dealt with in the Bill or by the sort of device suggested by the noble Lord, Lord Lester of Herne Hill.

Members on these Benches will listen carefully to the Minister’s response and we will test that against how the noble and learned Lord, Lord Lloyd of Berwick, in turn responds to it. If we need to come back to this issue again, I think that the noble and learned Lord can rely on our continued support. This stain on the law of England should be removed at some stage by other processes.

[Lord Scott of Foscote]

My Lords, I rise simply to say that for the reasons given by my noble and learned friend Lord Lloyd of Berwick, to which I cannot usefully add, I entirely support his amendment.

Defamation Bill

Debate between Lord Scott of Foscote and Lord Browne of Ladyton

Monday 17th December 2012 Grand Committee

[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.