Defamation Bill

Viscount Colville of Culross Excerpts

Tuesday 23rd April 2013 Lords Chamber

[Viscount Colville of Culross]

I would like to express my relief that the Defamation Bill has finally been unblocked and returned to your Lordships’ House. I thank the noble Lords on both Government and Opposition Front Benches for their tireless efforts to make sure that the Bill reappeared in this place.

I strongly support government Amendment 2B. During my career I was a journalist, and I spent some time on small regional newspapers. There were a number of occasions when I felt the mighty weight of companies bearing down on my reporting. I am ashamed to say that on some occasions, even when I had a powerful and well supported case revealing wrongdoings by a company, the legal letters from the company’s representatives threatening libel action, and the uncertainly of the outcome under the present libel laws, meant that those articles were not published. We live in an era when business PR regards anything but abject praise as an attack on a company. It seems to me that an amendment which demands a threshold of serious financial damage to a company before it can sue for libel will allow a much greater atmosphere of transparency and openness when questioning its activities.

I support the amendment put forward by the noble Baroness, Lady Hayter, and I listened with great respect to the noble Lord, Lord Lester, as I always do. Why, if Northern Ireland is having such problems with this, should the rest of the United Kingdom suffer? Why should it not be allowed to have the benefits of the Bill? It extends the Derbyshire principle into statute rather than waiting for it to work through common law, as suggested. This amendment attempts to incorporate the Human Rights Act 1998 which says that a private company performing public functions should be considered as an organ of the state. The ever increasing expansion of private companies being subcontracted to run public services makes it ever more urgent that the Derbyshire principle should now be established to cover those companies as well.

I have a short example. Last year, the Guardian received evidence from whistleblowers about the company, Serco. The allegations stated that the private health care provider, Serco, which runs the GP out-of-hours service on behalf of the NHS in Cornwall, had not employed enough skilled staff to meet patients’ needs and that the company was altering performance data to show a more positive outcome. Throughout May of last year the solicitors, Schillings, on behalf of Serco, sent a series of letters to the Guardian threatening it with libel action if it went ahead and published the evidence. The Guardian ignored these threats and published a series of articles by Felicity Lawrence. Then in July 2012, a report by the Care Quality Commission found that Serco had indeed not employed enough qualified staff to meet the patients’ needs, and a National Audit Office report this year found that there was evidence that the performance data had been altered to overstate the service’s performance.

The Guardian is big enough to resist these libel threats, but a smaller paper or website might well not have been able to do so. Had the service been run by the NHS it could not have issued those threats, but under the present law Serco was able to do so. Why should a company carrying out public functions be able to threaten critics with libel—possibly using public money—while a public body itself carrying out those functions would not be able to do so? In considering how to vote, I ask your Lordships whether we should not provide a level playing field in this matter.

[Lord McNally]

My Lords, I am very grateful for the contributions that have been made. This is not the Bill that my noble friend Lord Lester introduced into this House just over two years ago. It is not the Bill that the Government produced in draft for pre-legislative scrutiny. I am proud that it is a Bill that has gone through every process of political and parliamentary procedure, from a resolution at a Liberal Democrat conference to being an Act of Parliament, if we are successful today. However, this means that people around the House and campaigning groups around the country have not got everything they wanted from this Bill. One of my political heroes was the late George Woodcock, the general secretary of the TUC, who once said that good trade unionism was a series of squalid compromises. I do not suggest that the compromises that we have arrived at thus far are squalid. Nevertheless, when looking at a Bill such as this, it is necessary to remember the various pressures—some of which have been reflected in the useful debate that we have had—before making a judgment about challenging the other place once more.

The noble Baroness, Lady Hayter, raised the matter of cost still being in doubt. I would personally like to have had a clearer position, but we are working through on this. I have given enough assurances that we will make sure that the cost issue is clearly dealt with before this Bill comes into force. There are enough indications of the way that Parliament, Lord Justice Leveson and the CJC want to go that I am pretty confident that we can get a cost protection measure in parallel with the Bill which will satisfy the wishes of this House.

Perhaps I may also deal with an issue that has been raised in a number of interventions, including by the noble Viscount, Lord Colville. We have a dilemma that has happened under successive Governments. It is that what was once a clear line between the public and private sectors is increasingly becoming blurred, wavy, or even dotted. It is not as clear as it once was. I personally believe that at some stage we are going to have to deal with the anomalies created by the blurring of those distinctions and the fact that far more private sector companies carry out public service duties. However, I hope from what my noble friend Lord Lester said, and I said, that there is sufficient argument to say that for the moment we should rest on common law to deal with this matter. I fear that if we try to push too hard to implement this into statute now we will not convince the other place.

On the workings of the Civil Procedure Rule Committee, another matter that the noble Baroness, Lady Hayter, mentioned, it is not true that we will have to wait two years for case management. We are hoping to have guidance on case management in place, as with the costs, by the time that the Bill comes into force later in the year.

Before I move on, I am pleased to see the noble Lord, Lord Browne, in his place. I want to put on record that the noble Lord, Lord Browne and the noble Baroness, Lady Hayter, are a model of constructive opposition in the way they have handled this Bill. I hope that does not ruin his reputation. He will never recover from that.

The noble Lord, Lord May, referred to Committee stage as being a perverse pleasure. I think I know what he means, but it was a pleasure and an honour to have so distinguished a scientist contributing to our deliberations. It is an area which, along with the academic freedom that the noble Lord, Lord Bew, referred to, has been among the things that I have been most concerned that this legislation should try to protect.

The noble Lord, Lord May, referred to the question of Dr Wilmshurst. Another name that has often been referred to has been Simon Singh. They have been the cause célèbre about the deficiencies in our law. I have constantly said to my officials, “How will it be different after our Bill becomes an Act?” It will be different in both those cases. People pursuing them would have to satisfy the serious harm test. The defendants would have the new public interest defence contained within Clause 4 of the Bill. Alongside the Bill we are introducing cost protection measures to provide additional protection to those with limited means. More generally, to support the scientific and academic debate, the Bill also creates a new defence against libel for peer-reviewed material in scientific and academic journals and extends qualified privilege to reports of scientific and academic conferences.

Although I am not sure that we will ever be able to protect everyone from the speculative chilling solicitor’s letter, I hope that people receiving that chilling letter will realise that the law has changed. It has changed to protect them and build in protection for the Dr Wilmshursts and Simon Singhs of the future.