Defamation Bill

Lord Bew Excerpts

Thursday 17th January 2013 Grand Committee

[Lord Mawhinney]

My Lords, my Amendments 41 and 42 have been bracketed with this amendment, and I would like to speak to them at this point. I have great sympathy with what the noble Lord, Lord Phillips, has just said about auditors, and I hope attention will be paid to that.

In Clause 7(9) the Bill has:

“After paragraph 14 insert … a fair and accurate … report of proceedings of a scientific or academic conference”.

The Joint Committee spent a lot of time talking about this. It felt strongly that peer-reviewed articles were certainly right to be covered—and I would like to pay particular thanks to the noble Lord, Lord Bew, for his considerable help in helping the committee understand the issues on this particular matter—but it was much more nervous about the inclusion of conferences. I should add that from 1968 to 1984 I was an assistant professor, a lecturer and a senior lecturer in universities in the United States, and in this country and in those capacities I attended many academic conferences, as has the noble Lord, Lord Bew, and other noble Lords.

“Conference” is a very widely drawn word. Having attended the world conference on radiation biology and radiation physics, I would have no difficulty in saying that it qualified for special consideration in the context of the Bill. On the other hand, and I speak carefully, conferences are called by a variety of people for a variety of reasons, not all of which deserve the sort of protection that we are envisaging in this legislation.

The Joint Committee came fairly firmly to the view that there ought to be protection. The wording “scientific or academic” included medicine. There were queries as to why medicine was not specifically mentioned but we thought “scientific or academic” was sufficient to cover all the academic disciplines.

We were very strongly of the view that there ought to be protection. We were equally strongly of the view that conferences ought not to be included unless my noble friend intends on Report to define, delineate and describe what the Government mean by an academic conference, or unless he wishes to add regulations about the reviewing of contents of conferences to bring them into line with peer-reviewed papers.

Amendment 42 adds to peer-reviewed papers coverage for material in archives that is of academic importance and subject to the ground rules specified in the particular amendment. The effect of the two amendments together is strongly to endorse peer-reviewed scientific and academic papers, to remove the Government’s intention to include conferences and to add authentic archive material.

[Lord Bew]

My Lords, I rise to support the amendment moved by the noble Lord, Lord Mawhinney, and to say that he has accurately recalled the discussion and the feeling of the Joint Committee. My sense is that we actually did get differing evidence. For example, I seem to recall that the Master of the Rolls was sceptical about extending privilege to academic conferences for the reasons that the noble Lord, Lord Mawhinney, has given us. On the other hand, we had a former Lord Chancellor, for example, who took the view that it was right to extend privilege. So there was a genuine difference of evidence from significant people. We were certainly much keener to protect peer-reviewed journals than we were to offer a new measure of protection for conferences for the simple reason that all of us who are academics have attended conferences that we are not sure would deserve this privilege. The Government may well have things to say to expand their thinking to produce a more enthusiastic response—on my part, at any rate. However, it is worth saying that they were somewhat cagey on this matter.

Perhaps I may say very briefly, referring to the privilege matters discussed and to what is about to come, as the one person who was a member of the Joint Committee on Parliamentary Privilege and of the Joint Committee on the Defamation Bill, that I am finding the discussion so far extremely helpful, I expect to find further discussions even more helpful, and I am learning a lot.

[Lord Phillips of Sudbury]

Given the noble Lord’s deep involvement in this issue, I understand what he is saying about the amendment proposed. However, is he not very concerned, along the same lines, by the provisions of Clause 7(5), which would allow,

“a press conference held anywhere in the world for the discussion of a matter of public interest”,

to have qualified privilege? It seems to me that you would be in the bizarre position of having a conference to which qualified privilege did not apply, but the press conference after the conference would be the subject of qualified privilege.

[Lord Bew]

The noble Lord makes a very good point, one that I was actually aware of. While I fully understand the ambiguity to which he referred, the reason why I am more open to the provision as it stands for press conferences is that in recent time we have had, to my knowledge, at least one celebrated case where a particular government department gave a press conference and people subsequently wrote perfectly legitimate articles on the basis of what was said by that department but none the less, the case went to court and substantial payments were made.

I cannot bring myself to say that it is reasonable that if a department of government holds a press conference and people actively report or elucidate on what is said there, there should subsequently be libel actions, which there have been in recent times. That is the reason why at the moment I am living with the press conference issue.

I am open to persuasion on this question of conferences, but those of us on the Select Committee want to know that the Government have thought enough about the fact that some academic conferences are not very well run and are somewhat chaotic, and that they have some way of thinking that responds to that. A fundamental thinking of our committee was that the deepest problem is that academics, in the sciences or in the humanities, can be driven by their research to certain conclusions, and at this point there is a chill point that means they would discover it was difficult to find an academic outlet because a journal might say, “Our budget is so small that if there is a libel action here, even though your research looks very interesting to us, we can’t possibly publish it”. We know that this is currently going on, and that seems to be the greatest single evil in this field that needs to be addressed. I feel less concerned in principle about defending the rights of someone who may be spouting off a little at a conference.

[Lord Lester of Herne Hill]

My Lords, I had not expected to need to reply about press conferences but, in the light of my noble friend Lord Phillips’s intervention, I better had. This question was dealt with by the House of Lords in a case that I was involved in called McCartan Turkington Breen v Times Newspapers, 2001 2 Appeal Cases, 277; the noble Lord, Lord Bew, may remember it.

[Lord Bew]

I do indeed.

[Lord Lester of Herne Hill]

What happened was that a soldier was found guilty of murder for, I think, killing a woman at a roadblock in Northern Ireland and sentenced to imprisonment. He was represented by a firm of solicitors in Northern Ireland. A group of senior military men had a meeting in a castle in, I think, Yorkshire in order to accuse the solicitors of negligence in the way that they had gone about defending the soldier. The meeting in the castle was open to the public, but very few members of the public were in fact able to get in. The law firm sued for libel and the defence was that it was a public meeting and therefore covered by statutory qualified privilege. The argument was that it was not really a public meeting but a press conference; they gave out a press statement and it was in a castle.

Lord Bingham gave the lead judgment, making it clear on free-speech grounds that the press are the eyes and ears of the public, and that where the public cannot get in easily on an occasion like that and the press can, the press must be free to make a fair and accurate report—it must be fair and accurate—of what is alleged at the press conference, which is to be treated as a public meeting.

On Article 10 grounds, the House of Lords clarified the meaning of “public meeting” to include press conferences. In fact my memory, although I may be wrong, is that the Faulks committee in 1975 had recommended that press conferences should be included. So I have no difficulty at all with the express words in the Bill making clear that it covers press conferences anywhere in the world, for the reasons given by the House of Lords, per Lord Bingham, in that case. My difficulty is with what is to be done with the amendment tabled by the noble Lord, Lord Mawhinney. I was looking at the Joint Committee report about it. Paragraph 48 states:

“The draft Bill goes some way towards tackling this problem by extending qualified privilege to include fair and accurate reports of what is said at a ‘scientific or academic conference’. We welcome this development, provided the conference is reputable”.

The report goes on to deal with peer-reviewed articles and recommends extending it to peer-reviewed articles in scientific or academic journals. Then, as the noble Lords, Lord Bew, and Lord Mawhinney, have done, it explains the definitional problems, and towards the end it recommends,

“that the Government prepares guidance on the scope of this new type of statutory qualified privilege in consultation with the judiciary and other interested parties”.

As I read this, the Joint Committee are saying that it is a good idea, but there are definitional problems, so include it, but with proper guidance.