Assisted Dying Bill [HL]

Viscount Colville of Culross Excerpts

2nd reading
Friday 22nd October 2021 Lords Chamber

[Viscount Colville of Culross (CB)]

My Lords, I am humbled to follow the noble Lord, Lord Campbell-Savours, and to have heard what he had to say about his terrible lifetime of illness.

I recognise the efforts that my noble friend Lady Meacher has taken to ensure safeguards for patients who want assisted dying, but I cannot support this Bill. I have spoken to doctors in Oregon, the Netherlands and Belgium, in countries which already have assisted dying and euthanasia laws. I agree with the noble Baroness, Lady Smith of Newnham, that it is relevant to look at these countries because they presage a change of culture. All of these laws started out with assisted death as a rare event, for those patients who were enduring unbearable suffering and wanted to die, but your Lordships’ House has only to look at how these laws have changed and evolved in the intervening years to understand that what starts with the best intentions can be gradually and importantly eroded. Despite my noble friend Lady Meacher’s assurance, I fear that the Bill starts this country along the path towards assisted death becoming normalised.

I am particularly concerned about what happens to those in old age. In Oregon, the law was originally to assist patients with diagnoses of terminal illness with six months to live. However, last year the Oregon data report showed that some patients were granted assistance with dying because they were suffering from incurable but not terminal conditions that are prevalent in old age, such as arthritis or complications from a fall.

I am shocked by what, as many other noble Lords have mentioned, is happening across the channel in the Netherlands and Belgium. I know that their starting places were different from this Bill. Both countries have euthanasia laws and, originally, they too were to be used in rare instances but now, in some instances, it has become normalised, seen by many as the path to a good death. In the Netherlands, the Supreme Court has ruled that patients with dementia who, before they could

“no longer express their will” ,

left a written statement requesting euthanasia, can now have it carried out—once a doctor judges that the patient’s condition is one of unbearable suffering. In Belgium, it was ruled that the writer Hugo Claus was so perturbed by the diagnosis of dementia he faced and the unbearable suffering it gave him that he was allowed to have euthanasia, even before any symptoms were apparent.

My fear is that these assisted pathways to death put huge pressure on patients and medical staff alike, for them not to be a burden on either the health system or their own family. I know first-hand the desire for old people not to want to be a burden. A close relation of mine was diagnosed with Alzheimer’s 15 years ago. Her wish at the time was that, if possible, she should be given assisted death before she lost her memory because she did not want to a burden on her family. Fortunately, we do not have a law that permits this, and I hope that we never will. She now has very limited memory and suffers bouts of great confusion, but she is physically able. Despite her condition, she is able to enjoy huge pleasure in the moment, being with her grandchildren, gardening or going on walks. I know that dementia is excluded from the Bill, but I do not want this country to start down a path where assisted dying becomes normal and deprives many people of potential enjoyment and contribution to life, which they had never anticipated when their diagnoses were first given.

Assisted Dying Bill [HL]

Viscount Colville of Culross Excerpts

Friday 18th July 2014 Lords Chamber

[Viscount Colville of Culross (CB)]

I, like many noble Lords, have received a lot of letters. One of them in particular struck me. It was written by Professor Alan Thomas, who is a consultant in old age psychiatry at Newcastle University. He works with old people and vulnerable people with mental illness. He is an expert in assessing the capacity of people to make competent decisions about their healthcare. He wrote to me:

“My frequent experience is that many doctors do not know how properly to assess whether somebody is able to make decisions about their healthcare. The poor quality of such assessments is a daily frustration to me and to my colleagues”.

He added his concern about the Bill and said:

“My expert opinion is that large numbers of the vulnerable, especially those with mental illness and/or old people, are not competent but will be deemed to be competent, and killed”.

His comments go to the heart of the matter to me. If we are to give doctors the power to help kill us, we need to be absolutely sure that they and the patient know exactly what they are doing.

I agree with the concerns expressed by my noble and learned friend Lady Butler-Sloss that there are not enough safeguards in the Bill. Clause 3 specifies that the declaration has to be countersigned by two medical practitioners but it leaves who those practitioners are down to the codes of practice in Clause 8. Surely it should be in the Bill. The Mental Capacity Act, as mentioned in Clause 12, specifies that you have to prove that a person lacks mental capacity, the assumption being that everybody has a mental capacity unless proven otherwise. For a decision as serious as assisted dying, doctors need to be certain that the person has mental capacity—a much higher hurdle to jump. At the moment, if there is any doubt about whether a patient has mental capacity, a multidisciplinary team meeting is held which includes a doctor—usually somebody who knows them quite well—a relative and, possibly, a psychiatrist. I fear that even if the codes of practice mentioned in Clause 8 specify that these people should be involved in making the decision, it is going to be hard to get them involved. Many noble Lords have mentioned the concerns of the BMA and the RCP, which say that although they support a good death, they oppose assisted suicide.

Even if you put a psychiatrist into the Bill or into the codes of practice, it could be hard to actually get them involved with the decision. The Oregon Death with Dignity Act 1994 has a clause that refers a patient to a psychiatrist if concern exists that the patient has a psychiatric disorder, including depression, that might impair their judgment. However, according to the Oregon state health department, whereas in 1999 10 patients out of 27 who were given PAS had psychiatric evaluation, in 2013 only two out of 71 were assessed by psychiatrists.

Psychiatrists can be central in coming to a correct decision about a person’s mental capacity. A terminally ill person’s mental health can be altered by the drugs that they are taking, a stay in hospital and, crucially, the onset of depression, as other noble Lords have mentioned. Depression can leave a person with an unchanged mental capacity but, as we all know, it can also radically change a person’s mental state.

In a 2008 article in the BMJ, the authors reported that in Oregon, of the patients who were terminally ill and requested aid in dying, more than 50% met the criteria for depression or met the criteria for anxiety that they were depressed. In an article for the Journal of Clinical Oncology, authors discovered that the risk of requesting euthanasia for patients with a depressed mood was 4.1 times higher than that for patients without a depressed mood.

Patients can also be deceitful about their state of mind so psychiatrists will often need to make another assessment, maybe a month later. I quite see that this sort of period can make the delay too long for many terminally ill patients, but when people are making the most important decision of their life, everyone involved must know exactly what they are doing. I disagree with the Bill and I do not support it, and I am not satisfied that that is what is going to happen.

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.

Defamation Bill

Viscount Colville of Culross Excerpts

Tuesday 5th February 2013 Lords Chamber

[Lord Lester of Herne Hill]

My Lords, the Government are to be commended for having dropped the checklist in Clause 4 and for introducing instead the generic test, which I think was very much the test that Sir Brian Neill, as an adviser, recommended. There are three separate issues here. I am not sympathetic to widening the reasonable test to one which “could be” rather than “is”. I think that the objective test of reasonableness is right. I am sympathetic to substituting the word “decided” for “believed”. It is about whether what was decided was reasonable and, therefore, it seems to me that decided is a better word. It is not just I who say that: as has been said, it also has been said by leading libel counsel with experience.

I very much hope to persuade the Government to drop altogether Clause 4(2) on rapportage. Rapportage was introduced in my Private Member’s Bill originally—then, with good reason. But now that we have a good public interest test in Clause 4(1), I do not understand why we need the complexity of subsection (2), which I regard as difficult to understand or apply and unnecessary. Reading Clause 4(2) and asking oneself as a lawyer or a human being what it means makes my point. Clause 4(2) states:

“If the statement complained of was, or formed part of, an accurate and impartial account of a dispute to which the claimant was a party, the court must in determining whether it was reasonable for the defendant to believe that publishing the statement was in the public interest disregard any omission of the defendant to take steps to verify the truth of the imputation conveyed by it”.

I think that I understand what is being said but I do not understand why it any longer needs to be in the Bill.

Rapportage, or reportage, covers cases in which the very fact that certain allegations are being made, or that a certain controversy exists, will constitute a matter of public interest. It is in the public interest to report what is being said, irrespective of whether it is true. In such cases, the defendant may be relieved of the normal obligation to seek appropriate verification of allegations before publishing them because the newspaper is a mere reporter. It is not adopting a defamatory position. In light of the amended Clause 4, there is no longer any need to make specific provision for rapportage because the elements of this subset of Reynolds privilege is covered by the general test of whether the statement published was on or part of a statement on a matter of public interest and the defendant reasonably believed that the publication was in the public interest.

Clause 4(2) as drafted is confusing and opaque. It has the potential to cause further confusion in the light of the redrafting of the rest of the clause. Clause 4(2) states that the court must,

“disregard any omission of the defendant to take steps to verify the truth of the imputation”.

The reference to taking “steps to verify” is there because in the checklist in the previous version, one factor was,

“whether the defendant took any other steps to verify the truth of the imputation”.

However, as Clause 4(2)(g) has now gone from the Bill, there is no need to provide that the court should disregard it. To refer to taking “steps to verify” in subsection (2) is confusing.

I very much hope that we can get rid of this altogether. We do not need it. The general standard in Clause 4(1) is good enough to cover rapportage as well. I do not expect the Minister to give me other than a bleak and wintry reply this evening but I would like to think that by the time we come to Third Reading, the shoots of spring may shoot out of the earth.

[Viscount Colville of Culross]

My Lords, I support Amendment 7. I welcome the Government’s amendment to Clause 4. However, if the change from “believed” to “decided” guarantees that the checklist does not return and that authors will not be exposed to long and expensive cases in libel courts, I as a journalist think that that must be a good thing and I support it.

[Lord Phillips of Sudbury]

I wish to make a short point. I wholly agree with what my noble friend Lord Lester said about the confusing drafting of Clause 4(2). It is a most barbaric concoction and, coming in an age when we are all trying to make legislation as accessible as possible to other than legal experts, it really will not do. One particular aspect adds to its inadequacy; namely, reference to,

“an accurate and impartial account of a dispute to which the claimant was a party”.

I do not quite see why this clause should apply only to a dispute to which a claimant was a party. Why would it not apply to a matter in which the claimant had an interest? There may be no dispute there but it could be to do with a campaign where again there is no dispute. Apart from the generality, that is a bit of a drawback.

Defamation Bill

Viscount Colville of Culross Excerpts

Tuesday 5th February 2013 Lords Chamber

[Viscount Colville of Culross]

My Lords, I thank the Minister for his forbearance in the various attempts I have made to persuade him to adopt this procedure.

I raised the issue of the declaration procedure in Grand Committee. However, this amendment widens out the wording of the amendment that I proposed then. Proposed new paragraph (b) would allow either a website operator or the author of a statement to apply to query the contents of a notice of complaint.

I emphasise that this procedure will be voluntary and should not be available to decide whether or not a statement is true, or any other issue that needs a contested hearing. It is simply a quick process to decide whether the claimant has demonstrated a prima facie case. It would not necessarily lengthen the notice of complaint process as it should be issued at the same time as the notice of complaint is sent to the poster. It would run in tandem with the Clause 5 procedure.

There are concerns that this amendment might allow the website operator almost routinely to choke off the notice of complaint process by turning instantly to the declaration procedure. However, for website operators to use the procedure routinely would be to shoot themselves in the foot. The claimant could get a positive declaration, which would not only reinforce his case but give him an official document to send to other website operators showing that he met the basic requirements, which could be used in dealing with repeat postings of the statement on other websites.

As for concerns about the expense, I have suggested that the declaration procedure goes before the masters or a procedural judge. I am assured that despite the concerns expressed by the noble Lord, Lord Marks, in Grand Committee, who was worried that it would be very expensive, that a web-based procedure could be developed for as little as £25.

I ask the Minister to consider once again whether such a procedure could be included in the Bill.

[Lord Ahmad of Wimbledon]

My Lords, Amendment 16 would allow the regulations governing the Clause 5 process to provide for a procedure for a complainant, website operator or person who posted the statement complained of to seek a court declaration as to whether the complaint meets the basic requirements of a libel claim.

This amendment seems to envisage the creation of a system whereby, alongside the Clause 5 process, any party can seek a court declaration on a prima facie basis. It is difficult to see what incentive there would be for a complainant to do this. Such a declaration would not be determinative of the merits of the case or affect the availability of the Clause 5 defence, and so it would potentially just be an additional—and costly—step before registering a notice of complaint. Instead, the proposal appears primarily to be aimed at helping website operators to make informed decisions as to the strength of complaints so that they can be more confident in removing material or leaving it online depending on whether or not a declaration is granted.

We have serious practical concerns about this proposal. It has been suggested that the process could operate through consideration by a High Court master, on the papers, at very short notice and on payment of a nominal court fee. That seems unrealistic. We consider that it does not adequately take account of the time the process would take, given the significant additional burden on the courts, the extent of the evidence that could be needed to reach a decision and the consequent costs to the parties involved. There is also the possibility of rulings being appealed, which could add to the time and costs involved. Bearing in mind that the prima facie declaration would not be determinative of the merits of a case, it is difficult to see how that is warranted.

In any event, we do not consider that this additional process is needed. Clause 5 is intended to operate in such a way as to avoid website operators having to make decisions about the merits of defamatory complaints. The representations we received from many website operators during consultation on the draft Bill indicated that they did not have sufficient knowledge to make these judgments and that it was not appropriate for them to be doing so.

In response, we have sought to create a simple, quick, cheap and effective means for the complainant to request the removal of defamatory material and for the poster to engage with this request and stand by his posting if he wishes to do so. We think it is right to remove the website operator from the process as far as possible, so that if they follow the process as will be set out in regulations they will have a defence against a defamation action.

Of course, if for business reasons a website operator wishes to protect their users because doing so helps them financially, there is nothing in Clause 5 that will stop them from doing so. However, we do not think that an amendment to support them in doing so is appropriate.

I say again that the Government believe that the Clause 5 process, which, as I explained, focuses on creating a system under which website operators do not have to reach judgments on the validity of complaints, is a preferable approach which will be fair to all parties involved and will deliver additional certainty and protection for website operators. We believe that it is simpler and will not involve the cost and delay of the system envisaged under Amendment 16. With the explanation that I have given, I hope that the noble Lord will withdraw his amendment.

Defamation Bill

Viscount Colville of Culross Excerpts

Tuesday 15th January 2013 Grand Committee

[The Deputy Chairman of Committees (Viscount Simon)]

Before I propose Amendment 26, perhaps I may ask noble Lords to curtail their enthusiasm in asking questions before the amendment has been proposed.

[Viscount Colville of Culross]

Clause 5 is very welcome as it recognises the huge problems facing both complainants and defendants in libel cases with the introduction of the internet and its increasingly important position, as we have all discussed, in the arena for the dissemination of information. I want this amendment to build on the amendment put forward by the noble Lord, Lord Lester. I hope that Amendment 27, in the names of myself and the noble Lord, Lord Allan, will expand the discussion and set out the criteria for the definition of “unlawful”.

I am acutely aware of the ability of the internet to cause great damage to an individual’s reputation, as we have seen with the dreadful case of libel committed against Lord McAlpine, who has sued against many people who defamed him on Twitter. It is easy to focus on the high profile and serious cases such as that of Lord McAlpine and not on the many thousands of other libel complaints about online material where the distinctions between fact and opinion are more difficult to ascertain. We do not hear about these cases because, when in doubt, the website operators’ practice has been, in far too many cases, simply to remove the materials.

Smaller websites, such as Mumsnet and news and business blogs supported by WebPress, both of which support this amendment—indeed, they are not Goliaths, as the noble Lord, Lord Mawhinney, suggested—do not have the knowledge and capability to give their complaints proper scrutiny; nor do they have the legal resources to fight libel action and risk liability. The safest thing for them and many other internet intermediaries is just to take down the postings, which I believe would be damaging to free speech. It is therefore very important that Clause 5 strikes the correct balance between the right to protect the reputation of the individual and the freedom of expression on the internet. I want the notice of complaint procedure to be a cheap and easy means of striking this balance.

In Committee on the Defamation Bill in the other place, the Government rejected an amendment rather along the lines that I am putting forward today on the basis that it would be too onerous on claimants to have to consider the potential defences to defamation. The Joint Committee on Human Rights acknowledges this argument but considers the risk of website operators simply removing the material, rather than engaging in a proper analysis on the merits, as being too great.

The Government are correct to worry about whether claimants can be expected to understand the subtleties of libel defences, honest opinion and qualified privilege, and should not be forced to take legal advice in order to put forward the initial notice of complaint. However, complainants should at least be able to address the factual matters relevant to the complaint, including stating why any comments are unsupportable and why the claimant is likely to suffer serious harm. I want all the conditions to reach the threshold for the notice of complaint to be on the face of the Bill. Surely, if claimants are required first to check the Bill and then the regulations to find out what to put in the notice of complaint, as Clause 5(6)(d) suggests, it will only complicate matters.

I hope that the sub-paragraphs in my amendment will allow claimants to state basic factual information within their knowledge in relation to their complaint without having the need for lawyers. Paragraph (e)(i) under Amendment 27 asks the complainant why the allegations against them are defamatory. This already exists under Clause 5. Factor (ii) asks the complainant to state why the statement complained about is “inaccurate or untrue”. This addresses the possible defence of truth.

Factor (iii) asks the complainant to state why “any opinion” in the words complained of is “unsupportable”. It also might play in favour of the complainant because it asks them to provide any evidence to show that the comments in the posting are unsupportable. That would enable website operators to have some regard to the available defences of truth and honest opinion. This simply requires that the complainant provides factual evidence and so not have to get into a legal debate about whether the words complained of are statements of fact or comment.

Factor (iv) seems to be in line with the spirit of the Bill outlined in Clause 1, which ensures claimants should show that “serious harm” has been done to their reputation. It also fits with the interim guidelines put forward by the DPP on 19 December, which suggest that prosecutors should proceed against authors on social media only if the communication is more than offensive, shocking, disturbing, or satirical, or is more than the expression of unpopular or unfashionable opinion about serious or trivial matters, or banter or humour, even if distasteful to some or painful to those subjected to it.

The noble Baroness, Lady Hayter, suggested that Amendment 4 was a better way of dealing with this issue of seriousness. My concern is that that amendment is about commercial bodies, and not all comments on a site such as Mumsnet will be against commercial bodies; they might be against authors or experts in a field. It seems wise to have a seriousness threshold included in the notice of complaint.

In December last year I expressed my concerns to the Minister about the criteria for the notices of complaint. They are addressed in paragraphs 8 and 9 of the Ministry of Justice consultation sent out last week. I am grateful to the Minister for having included three of these factors from my amendment in subsection 9. However, I am concerned, as the noble Lord, Lord Lester, suggested, that the two paragraphs might add to the confusion over the difference between the words defamatory and unlawful. Paragraph 8 sets out what are called the core elements to be included in the notice of complaint, which are the same as those stated in Clause 5(6) of the Bill, which will raise them to a defamatory standard. Paragraph 9 goes on to state that the regulations have the option of looking at other factors, including the three that I have suggested, which would make them unlawful. Surely this would only compound the confusion between UK and EU standards, which I have already expressed.

I move on to factor (f) of my Amendment 27. I gather that there is a technical problem, and that it should in fact be in subsection (7), so it is perhaps more of a probing amendment. I will, in any case, put it forward for the Committee to consider. It will make provision for a procedure whereby a complainant, a website operator or an author who wants to dispute whether the contents of a notice of complaint under subsection 3(b) have met the requirements of subsection (6). This is meant to deal not with serious allegations of libel, which will have to end up in court, but with grey areas of more trivial cases.

After all, the notice of complaint will only contain the information provided by the complainant. The website operator or author could have reasons to question these contents; for instance, where there is a dispute about whether the original posting is defended by fair comment or is a statement of fact.

The Ministry of Justice, in its consultation paragraphs 23 and 24, explains what will happen if the author refuses to give full contact details to the operator. In that case, the website operator will be required to take the posting down, if it is to rely on this Clause 5 defence. This will leave them in much the same position as they are now—needing to remove large amounts of potentially non-defamatory material in order to avoid liability.

Paragraph 24 suggests—and the noble Lord, Lord Phillips, picked up on this—that if the complainant wishes to take further action, he will need to seek a Norwich Pharmacal Order for the website operator to release the identity and contact details that it has in relation to the author. My concern, and that expressed by the noble Lord, Lord Phillips, is that this order can cost at least £3,000 in legal fees and may not deliver the identity of the author in the end. The complainant could end up with an IP address through the broadband provider, but that will not guarantee that the identity can be uncovered. It might in fact be necessary to get another Norwich Pharmacal order to trace the IP address through a further website, which may turn out to be an internet café, the email of which may be [e-mail]. The complainant would then be out of pocket and still unable to contact the author.

Commercial sites such as TripAdvisor, as well as non-commercial websites such as Mumsnet, support this suggested procedure, as do commercial platforms like WordPress, which host small blogging sites, covering a wide range of subjects, some of which I hope your Lordships would regard as being in the public interest, such as news from Nigeria, advice on spare car parts and even which baby lotion to use. Many of these small websites and blogs cannot afford lawyers to defend a libel action, but would like to have a legal view on a disputed notice of complaint from a legal authority.

This procedure would also benefit the complainant, who would then be able to use the declaration by the master or a procedural judge, if it is in their favour, to deal with the problem of anonymous internet users repeatedly reposting the same material on other websites once the original website operator has decided to take it down. However, the noble Lord, Lord McNally, in his letter to me last month, and the noble Baroness, Lady Hayter, in her speech of 19 December, expressed concerns that the procedure would allow any author to hide behind anonymity by claiming that they were whistleblowers, while placing an extra burden on the complainant to fund the procedure. I want to emphasise that the procedure would be a means for dispute resolution about the contents of the notice of complaint, and one which could be initiated by the claimant, the author or the website operator. I hope that this goes some way to mitigating their concerns.

I am not a lawyer, I am just a journalist, but I am advised that the new procedure could simply latch on to the present master’s application procedure on the Queen’s Bench Division of the High Court. There could be a new section to the Queen’s Bench Division website with simple, procedural guidelines and copies of the standard form application and draft declaration for the claimant. The claimant could fill out the form, provide a copy of his notice of complaint and explain why it needs the Clause 5 criteria. That could be put before a master, who would decide whether to grant the declaration that the Clause 5 criteria have been met. Claimants would not need to lodge hard copy documents with the courts, as under the existing application procedure.

The master could ensure not just that the claimant had complied with the requirements of Clause 5 but that the claim met the basic requirements of a libel claim: that the words are defamatory, likely to cause serious harm and have no obvious defence. I ask noble Lords to consider my amendment favourably.

[Lord Morris of Aberavon]

My Lords, I make a brief intervention. I listened very carefully to what the noble Lord, Lord Lester, said, in moving his amendment, but I need a little further assistance. I am not quite clear about his purpose. I do not think that he specified—I was listening as best I can—the distinction that he makes between a statement which is defamatory and a statement which, additionally, might be unlawful. The danger I see, if they have the same meaning, is that the courts will look at the provisions very carefully and regard them as otiose. What purpose is intended? Does it create an additional burden on the complainant? When he makes his representations under the clause, will the complainant have to define in what way the statement is unlawful? Perhaps we could have assistance on that score.

--- Later in debate ---

[Viscount Colville of Culross]

I emphasise that this must be a voluntary process. I said that this was a probing suggestion for people to talk about. It should be voluntary and the ability to use the procedure should be open to all parties.

[Lord Phillips of Sudbury]

I simply wrap up my point by saying that I am anxious about having this paragraph in the amendment, because I think that it could give the wrong idea to those who have to interpret it in future. I would be wholly against a way of lodging a complaint that involved a formal legal process, even of a stripped-down kind, if I can call it that, because it would, I suggest, make remedy more or less impossible for the vast majority of people.

Defamation Bill

Viscount Colville of Culross Excerpts

Wednesday 19th December 2012 Grand Committee

[Lord Lester of Herne Hill]

I am sorry, but if the Libel Reform Campaign has been briefing in that way, it is completely wrong, and it is time that it realised that it is completely wrong. As I have said before, the whole purpose of this defence is to protect NGOs, consumers and individuals, not only the media. So far as I am aware, the Libel Reform Campaign has not come up with anything better than the amendments to Clause 4, and I have been waiting for it to do so. Since I began to prepare my Bill, for a year I made quite sure that all the NGOs met me every month or so in order to reach a high common factor of agreement. The Libel Reform Campaign did a great job of publicising the need for reform but, with respect, it is not good enough for the campaign to make a root and branch statement of that kind without giving proper credit to all the ways in which this Bill dramatically and importantly reforms the law and creates a better balance between free speech and reputation. I have to say all of this because sometimes even NGOs need to be accountable.

[Viscount Colville of Culross]

I declare an interest as a journalist, producer and director at the BBC. I support Amendments 14, 16 and 21. In my Second Reading speech, I expressed concern about the chilling effects on free speech through the use of all 10 factors in the Reynolds defence as a checklist by lawyers trying to affect investigations both prior to publication and in destroying the public interest defence statement once something has been published.

In the letter sent to all Peers on 10 December, the Minister said that he was honouring his commitment given at the conclusion of Second Reading to look again at Clause 4. In the intervening period he has worked with the noble Lord, Lord Lester, and other distinguished libel lawyers to formulate a new wording for the clause. The wording they came up with to amend Clause 4 is very satisfactory and addresses my concerns.

Any amendment must not be a charter for reckless statements that hide behind the shield of a public interest defence. Amendment 14 contains the crucial words, “the defendant reasonably believed”, which replace, “acted responsibly”. Amendment 16 would drop the list of factors altogether. Some supporters of free speech fear that the words “reasonably believed” will allow the courts to work up yet another list of factors that can be used as criteria for what is reasonable. However, the amendment will allow serious journalists, NGOs and scientists who are reporting on matters that they consider to be in the public interest to use their own checklist of what is reasonable. I talked to my colleagues at the BBC who were preparing Monday’s “Panorama” programme on the Barclay brothers’ tax affairs, which had been months in preparation. They had dealt with multiple firms to get the programme on air. This would have been extremely helpful to them by bringing a very important public interest defence to a debate about tax avoidance by people who are extremely important in the affairs of our country. I am very grateful that the amendment has been brought forward.

As a journalist I do everything I can to check the veracity of claims that I intend to publish; to question at length the witnesses; to check out by any other means the truth of witnesses’ evidence; to find other supporting witnesses where possible; and to ask an individual, or an authoritative representative of an organisation being investigated, to reply. But sometimes, despite one’s best efforts, it is not possible to get a satisfactory reply from a person or an organisation being investigated. Very often that means one cannot publish. However, I am convinced that with this amendment I would be safeguarded by the Clause 4 defence when publishing a statement that would be in the public interest. I am very reassured by that.

I welcome Amendment 21, which further strengthens the hand of the author by making allowance for editorial judgment. It includes the words, “considers appropriate”, to ensure that the amendment is never used just for reckless statements. Not only will the amendment comply with the Flood decision that editorial judgment should be taken into account, but the many people who are worried by the quality of editorial judgments revealed in the report of Lord Justice Leveson will be reassured that the courts will have the final say on the nature of editorial judgments exercised in the publication of an article or statement. For far too long, responsible authors who want to publish in the public interest have been cowed by our libel laws. The people of this country have a right to be presented with matters of public interest so that they can have at least an informed choice in a debate on the subject. The amendments to Clause 4 tabled by the Government will boost democracy and accountability in this country. They are a great step forward.

[Baroness Bakewell]

My Lords, I had not intended to speak but I am one of the campaigners, and one of the signatories to many appeals, for the reform of the libel laws. I am a journalist and I am at risk. I am at risk every day I write or report for the BBC or anyone else. I regard myself as the focus of Clause 4 and how it might affect my livelihood, my reputation and the cases which I report when I make a programme. I know that the noble Lord, Lord Phillips, will not press his amendment, but I was alarmed when he spoke about the defendant acting,

“fairly as to the manner, balance and content,

of the statement that they make. Each of those words is a millstone around the neck of a journalist, who of course will seek to please his employer but also to be fair to the public. Each one of those words can be interpreted in so many ways that I foresee—following what we heard—conversations going on for months in the “Panorama” office about each of them.

That is why I appreciate and commend the Bill and Amendment 14, which leaves things clear and lets us know where we stand. Amendment 21 provides for responsibility and allows for the discussion covered by Amendment 23, which states:

“In determining whether it was reasonable for the defendant to believe that publishing the statement complained of was in the public interest, the court must have regard to all the circumstances of the case”.

Those are going to be innumerable and may move in many directions, but they are what journalists want to see because it makes them both responsible and true professionals. I support the amendment.

Defamation Bill

Viscount Colville of Culross Excerpts

Tuesday 9th October 2012 Lords Chamber

[Viscount Colville of Culross]

I declare an interest as a producer/director still working at the BBC and as a vice-chairman of the All-Party Parliamentary Libel Reform Group. I very much welcome the Bill. I have read the lengthy evidence given to the Joint Committee and its incisive conclusions and pay tribute to its work. I also thank the Libel Reform Campaign for its help, and of course the noble Lord, Lord Lester of Herne Hill, for his extraordinary campaigning work over many years to reform our libel laws. I am in awe of the very hard work and thought that has gone into the drafting of this Defamation Bill.

The Bill centres, quite rightly, on the careful balance that has to be drawn between the right of an individual to a reputation and the preservation of free speech and expression. Britain’s record of free speech has been one of the great sources of inspiration to the world since the Glorious Revolution in the late 17th century stopped the censorship of newspapers and pamphlets in this country. I have just made a history documentary that attempts to find out why the Industrial Revolution took place in Britain rather than in other scientifically advanced European countries. One of the programme’s conclusions was that 18th century Britain boasted a liberty of speech and intellectual discourse that allowed the free exchange of ideas between scientists, technicians and industrialists. The industrial enlightenment, as it is called, allowed the creation of inventions and industrial progress that transformed this country into one of the most powerful and prosperous in the world, and much of its success rested on the power of free speech.

This freedom has been counterbalanced in statute since the passing of the first civil libel laws in 1843, and they have developed through subsequent Acts and changes in common law to protect the reputation of the individual. However, I fear that in recent years those very libel laws and the threat of their use against a wide range of authors from journalists to scientists and NGOs is having an increasingly oppressive effect on free speech. Our present libel laws seem to have tipped the balance too far in favour of the claimant.

I have worked as a journalist on regional newspapers and for our major television networks for most of my career. I have first-hand experience of the threat of libel action limiting my ability to publish all the information that I had gathered in the course of an investigation, but my experiences are limited and on a small scale. In the course of preparing for this speech, I have spoken to journalists and media lawyers in some of our most respected broadcast and newspaper companies. They have told me of many instances when, during the course of investigations into powerful individuals or companies, they have been confronted by an ever-increasing torrent of letters and threats from libel lawyers, often multiple firms of libel lawyers.

At a time when there have been revelations of misconduct—and in some cases criminal misconduct—by journalists, one or two media organisations have been singled out for being well regulated and responsible. One of those is the organisation for which I work, the BBC. It is at the forefront of responsible investigative reporting. Indeed, the work of “Panorama” has brought us important and revealing programmes that hold to account powerful commercial and religious organisations and even a Member of your Lordships’ House. This exercise of free speech seems to be a crucial pillar of our democracy.

However, even at the BBC the chilling effect of our present libel laws is being felt. The corporation’s head of current affairs, Clive Edwards, a long-term colleague of mine, said in a recent speech:

“In my 25 years working in investigative journalism I have to say the current climate is the worst I can remember and it’s getting to the point where I have serious concerns about the future of investigative reporting”.

This is the man who is ultimately responsible for “Panorama” and other investigative programmes.

What is ironic is that one of the defences for responsible journalism built up by the common law is now being used as a stick with which to beat journalists in an attempt to prevent publication: the so-called Reynolds defence. This defence lays down 10 non-exhaustive factors, the use of some but not all of which should be enough to protect fair and responsible journalism, even if the absolute truth of the statement cannot be proved. At the moment, however, prior to publication or broadcast, lawyers representing companies and individuals under investigation are increasingly demanding that journalists, scientists and NGOs should abide by all 10 factors in order to prove that they have acted fairly and responsibly.

During the course of one recent “Panorama” investigation of a controversial organisation, the programme makers received upwards of 1,000 pages of legal letters, at a going rate of £400 a page, to try to influence the content and prevent the programme’s transmission. Every letter required a response by the BBC lawyer that had to be checked by the programme makers and executives. The present libel laws are costing respectable media organisations a fortune in their own lawyers’ fees and are exhausting journalistic talent in refuting these claims. This must be having a detrimental effect on the number of investigations that can be undertaken. It cannot be right that the rich and powerful are using our libel laws to attempt to suppress reporting and are using their lawyers to act like back-street bullies to suppress investigation.

This Bill goes a long way towards improving the situation and redressing the balance towards the protection of free speech. Clause 1, on serious harm, requires a claimant for the first time to prove that there has been serious damage to their reputation or financial situation. I am sure that this obstacle will stop trivial and vexatious cases coming to court. Clauses 2 and 3 create statutory defences for truth and honest opinion, which will help to protect free speech. Clause 6 is a tremendous step forward in protecting scientists and NGOs who want to express their concerns without fear of litigation. It is long overdue and I know is very much welcomed by those communities.

However, there are one or two areas of the Bill that cause me a little concern, and I hope that they will be tested during the passage of this Bill through your Lordships’ House. Clause 4 gives a welcome defence of responsible publication on matters of public interest against libel. Subsection (2)(a) to (i) contains the list of 10 factors that can be used in the defence of responsible journalism. The Explanatory Notes say that these are,

“a non-exhaustive list of matters to which the court may have regard in determining whether a defendant acted responsibly in publishing a statement”.

However, in the light of the way in which libel lawyers are using the present 10 factors of the Reynolds defence as 10 hurdles for journalists to cross, I am not sure that their codification will improve the situation.

I would also ask whether this clause accounts for the changes in the common law that have taken place as a result of the Supreme Court decision in the case of Flood v Times Newspapers Ltd. This now allows for the reasonable belief of the editor or publisher to be taken into account as part of the defence. This clause as it stands seems to be a step backwards. I ask the Minister if he can think of a different way of wording this clause that would both bring it up to date with the Flood judgment and deal with the problems of the 10 factors in the Reynolds defence.

Clause 5 is of utmost importance in that it recognises the overwhelming importance of the internet as an arena for free speech in the 21st century. If this Bill is to be future-proofed, it needs to get this clause right. Social media such as Facebook, Twitter and blogs are an ever more powerful method of disseminating information. Many of the operators and much of the comment take place outside our jurisdiction. Nevertheless, we must try to achieve a balance for claimants, website operators and authors based in this country.

Clause 5 goes a long way towards creating this balance between a defence for website operators against allegations of defamation while also giving claimants redress for defamation. However, I ask the Minister to be aware that the clause could be used by people who want to unmask the identity of an anonymous individual, maybe a whistleblower or someone like that, by using a spurious defamation claim to force a website operator to do so. There needs to be some burden of proof when making the claim that a remark is defamatory before it should be removed.

I also welcome Clause 9 on jurisdiction, which goes a long way to diminishing the threat of libel tourism in the London courts. Although there have been only a limited number of actual cases from abroad in the English courts, these laws have certainly been used as a chilling effect on free speech internationally. As this clause is drafted, it will not help British defendants who are being sued by overseas claimants living outside the EU, and that is a source of concern for me.

On Clause 12, I am anxious that the demand for a summary statement of the judgment will duplicate the jobs of regulatory bodies such as the PCC, the BBC Trust and Ofcom, and I am sure that this issue will also be considered in whatever forum Lord Justice Leveson comes up with for considering complaints against the media. To allow a judge to force a paper or a broadcast to put up an apology on the front page or at the top of the television news seems to me to put the judge in the editor’s seat. I ask the Minister whether that is in the interests of free speech and responsible journalism in this country.

This Bill goes a very long way in addressing the concerns that many of us have for guarding free speech in this country. Any changes that I have suggested must not become a charter for irresponsible journalism or comment. There have been some wonderful and important debates on the Bill in the other place, but I am sure that its passage through your Lordships’ House will bring about the crucial amendments that will ensure that it becomes the once-in-a-lifetime chance to rebalance the freedom of speech and the reputation of the individual in an era of extraordinary change and upheaval in our media.

Freedom of Information Act 2000

Viscount Colville of Culross Excerpts

Tuesday 17th January 2012 Lords Chamber

[Viscount Colville of Culross]

I thank my noble friend Lord Hennessy for having secured this debate on such an important issue. I declare an interest, having been a journalist, both on newspapers and in television, for most of my career. Since the introduction of the Freedom of Information Act, I have seen at first hand the beneficial effect of its principal aim, that of improving the openness of public bodies to wider scrutiny.

The Ministry of Justice will consult 200 bodies carrying out public functions and receiving public funds which are not covered by the Act. I should like to focus your Lordships’ attention on several of these bodies.

There will be consultation with two examination boards, AQA and Edexcel. Edexcel is a private company which is the UK’s largest award-giving body; AQA is an education charity providing GCSE and A-levels to English and Welsh schools. I remind the Minister of the concern felt across the educational establishment about the aggressive manner in which these examination bodies compete for GSCE and A-level business. An investigation last year by the Daily Telegraph exposed how privileged information was being given by these bodies to teachers at feedback seminars. Ofqual is now looking into the matter. There is concern also about the uneven quality of marking by these boards. A survey last year by the National Association for the Teaching of English expressed great anxiety about the qualityof the marking of English at A-level. These processes and these boards need to be made open and public.

The Local Government Association and the NHS Confederation are also being consulted on the extension of the Act. The LGA has campaigned against the vexatious and expensive effect of FOI requests on its local authority members, citing a fourfold increase during the past six years. I would argue that this figure is evidence of the success of the Act. Certainly, it has revealed stories such as the 6,000 council houses lying empty in London last year and the £31 million in fines paid by utility companies for overrunning roadworks. In fact, the Constitution Unit found that 95 per cent of local authority FOI officers felt that the Act had brought increased openness to local government. If the LGA's members have so benefited, I suggest that their representative body would garner similar advantages.

The NHS Confederation is also up for consideration. In autumn last year, its trustees agreed a new transparency and accountability policy which would ensure that it was open and transparent to the public. However, the voluntary nature of this agreement means that there is no right of appeal to the Information Commissioner. An extension of the Act would rectify this omission.

I urge the Minister to bring the Justice Ministry’s consultation on these bodies to a speedy conclusion. The last exercise to extend the FOI Act was launched on 25 October 2007, but was not implemented until four years later. I hope that this new consultation will be carried out in a fraction of the time.