Defamation Bill [HL]

Lord Bach Excerpts

Friday 9th July 2010 Lords Chamber

[Lord Bach]

My Lords, I shall begin what I intend, and what I am sure the House fervently desires, will be a fairly short contribution with a number of congratulations. I congratulate, first, our two maiden speakers today, my noble friend Lady Hayter of Kentish Town and the noble Lord, Lord Willis of Knaresborough, who both come to this House with high reputations. After their contributions today, we can all see why. We look forward to hearing much from them in the future. I congratulate also all those who have spoken in this debate, whether lawyers or non-lawyers. The fact that both have been importantly involved in this debate proves perhaps the point, if it needed proving, that the law of defamation affects all of us in society. Above all, congratulations are due to the noble Lord, Lord Lester. While there is clearly a consensus for reform, he has taken matters a step further and produced a serious and compelling legislative proposal in the form of the Bill before us today. For that, he deserves much more merely than the thanks and congratulations of this House; he deserves the congratulations and thanks of the country.

I commiserate with the noble Lord on being so near yet so far from being the Earl of Leicester. What a wonderful thing it would be to be Earl of what to some of us is God’s own city, but, distinguished as he is, he has not quite yet reached that high point.

I hope that it comes as no surprise that we on this side in favour of reform in this area of the law—it was specifically referred to in our recent manifesto. Therefore, it follows that we warmly welcome this Bill and its crucial role, as we see it, as instigator of legislative change—it is not the final word; the noble Lord, Lord Lester, made that absolutely plain. It is quite clear that the impetus for change has been growing and, when in government, we responded. The libel working group convened by my right honourable friend the previous Lord Chancellor produced a report alongside other significant reports and consultations such as Defamation and the Internet, the consultation entitled Controlling costs in defamation proceedings—about which I shall say a little more later—and, earlier this year, the Select Committee report from another place. All those have all strengthened the case for reform.

Some much publicised and shocking cases—the Singh case here comes to mind—have also been instrumental in bringing this campaign to the wider public’s attention. I praise the organisations Index on Censorship, Sense About Science and English PEN for their campaigning and influence.

As to the contents of the Bill, it would be foolish at this stage for any political party to commit itself in detail to a precise view on each clause. That is for a later time but, I hope, not too much later. I can say that, as a whole, the Bill strikes us as being sensible and practical in establishing a better balance between the right to personal reputation, so well argued for in this House today by my noble friend Lord Triesman, the noble and learned Lord, Lord Hoffmann, and my noble friend Lady McIntosh among many others, and the right to free speech; in other words, the balance between Articles 8 and 10.

It is clear that the time has come for the scope of the defence of public interest, as ruled on in Reynolds and Jameel, to be set out in statute. The changes in both words and meaning to the defences of “fair comment” to “honest opinion” and “justification” to “truth” seem at first sight to be reasonable and workable. Similarly, the Clause 9 provision on responsibility for publication and the Clause 10 creation of a single publication rule with discretion for the court seem useful and important proposals. We will want to look closely at Clause 11 dealing with actions for defamation brought by corporate bodies, but the Australian experience and the noble Lord’s draft clause dealing with our own law looks more than interesting.

I listened with great care to what the noble and learned Lord, Lord Woolf, had to say about Clauses 14 and 15 and the issue of trial by jury in defamation cases. We believe that on balance it is right to reverse the presumption very much for the reasons set out by the noble and learned Lord and in paragraph 151 of the Explanatory Notes. It is interesting and encouraging that that excellent organisation, Justice, agrees in principle. Of course, the interests of justice caveat is absolutely essential to that proposition.

A possible addition to the Bill arises out of a concern referred to already on a number of occasions in speeches today, raised by the organisation Mumsnet. It is concerned that the Bill as presently drafted does not provide explicit cover for hosts of third-party comments. I invite the noble Lord to consider that point, not necessarily today but as the Bill progresses.

There will obviously be a great deal of further discussion and debate before the final shape of the reforms is agreed. I do not think that anyone can argue that this is not a huge step forward. However, the Bill does not deal with—and it is not intended to deal with—what in the modern cliché could be described as the elephant in the room. That is the question of costs in defamation actions. I make no criticism of that at all, as this Bill is concerned with the substantive law and the position on costs does not need primary legislation to be changed. The briefing from the Libel Reform Campaign makes the point, already referred to by my noble friend Lady McIntosh, that fighting a libel case can cost 140 times the European average and can routinely cost £1 million. But the maximum 100 per cent success fee allowed under conditional fee agreements is just too high. Alongside the high legal costs anyway, we believe that this has had a harmful effect on freedom of expression and think that the 100 per cent figure should be lowered—and should be lowered now. The reply of the present Government to that proposition is that we should wait, perhaps until the Government legislate on Sir Rupert Jackson’s review of civil litigation costs, which has come up today. Sir Rupert has trenchant views on success fees generally, I think it is fair to say.

The Jackson report is a massive piece of work covering the whole civil law field. Given its length, importance and complexity, it was produced in a remarkably short period of time, and praise has been given to Sir Rupert for his work. However, with the greatest of respect to how government works—and I have a little experience of that—I do not believe that legislation will emerge for some considerable time yet. I would love to be proved wrong, but I fear that I will not be. It is not like waiting for Godot, who of course never came; waiting for Jackson will be rewarded eventually, I am sure—but not soon, and certainly not in the near future, and it is in the near future that we need change to the success fee regime in this field. I know that the noble Lord, Lord Lester, and other noble Lords, agree with that proposition. So I urge the Government to bring forward the necessary secondary legislation, as we did—and, I hope, with more success—as an interim though not the final solution to what is, as many noble Lords have said, a major problem.

Meanwhile, the Bill will of course pass its Second Reading and will then be subject to detailed consideration and discussion. We very much hope that that will be so. We wish it well and pledge to do our part in taking it forward. We look forward to hearing what the Minister has to say.