Defamation Bill

Lord Browne of Ladyton Excerpts

Tuesday 9th October 2012 Lords Chamber

[Lord Browne of Ladyton]

My Lords, I thank the Minister for his welcome. I had not expected to deal with this legislation and I have spent quite a substantial part of the Recess reading up. For a moment, I thought that I had missed something else. I knew that there was a failure of communication over the content of the reshuffle in certain places and I wondered if the noble Lord, Lord McNally, maybe knew something about a phone call that I should have got during the reshuffle that did not materialise. I also take this opportunity to welcome the noble Lord, Lord Ahmad of Wimbledon, to his post in the department. I look forward to working with him closely on the Bill and to his educating me on the detail, to the extent that I have been unable to master it so far.

We support the Bill to the extent that it seeks to reform our outdated libel laws. We also support it because—as the noble Lord, Lord McNally, made plain—it has its roots in what the previous Government did and because all three main political parties committed themselves to reforming defamation law in their election manifestos. However, as the Minister reminded us in his letter yesterday, that commitment to reform was translated in the coalition agreement to a commitment to review the law of libel to protect free speech. The word “reform” somehow fell off the agreement when the two parties went into discussion on a commitment to reform.

The first question for the Minister is whether the Bill, which in its present form largely codifies, and reforms little, is a reflection of the commitment of the coalition Government or is the aggregate position of two reforming parties on defamation law. The Minister, or the noble Lord, Lord Ahmad, may have an opportunity to enlighten me about that at some stage during the course of this debate.

We support the Bill, but are critical friends of it and hope to see it amended significantly during its passage through your Lordships’ House. I thank the Minister both for his speech of introduction and for the helpful letter that he circulated yesterday, I believe to all Members of the House. I am told by informed sources that he is the department’s principal promoter of the Bill and is the Minister who was responsible for piloting it through the Committee stage in the House of Commons. Apparently the Commons did not share his passion for reform of this area of law; accordingly we have high hopes of him.

Before I turn to specific clauses of the Bill, I want to associate myself with the words of the Minister to the extent that he has recorded thanks and appreciation to those who have played a role in getting the Bill to this stage. I associate myself with the recognition of the noble Lord, Lord McNally, of the role played by the Libel Reform Campaign and others too numerous to mention. If the Minister will excuse me, I will not go through the exhaustive list of all those who have been lobbying us—our inboxes are all full of their briefings on this. I am sure your Lordships will want to pay tribute to my right honourable friend Jack Straw and the working group that he established when he was Secretary of State, and of course to the Joint Committee of both Houses, under the able leadership of the noble Lord, Lord Mawhinney, which scrutinised the draft Bill. It is also appropriate to recognise the sustained contribution of the noble Lord, Lord Lester, particularly in relation to his original Private Member’s Bill and beyond. I suspect that both the Joint Committee report and the Private Member’s Bill will prove to be sources of inspiration when we come to Committee.

It is important that in any review and reform of defamation laws we get the right balance between freedom of speech and expression on the one hand and protecting reputations on the other. There have been justified concerns that our defamation laws are outdated, have fallen behind technological developments, have restricted freedom of expression and have attracted libel tourism. I say “our” defamation laws despite standing here as a Scottish lawyer and never having practised in English law, if noble Lords will excuse that poetic licence for the purpose of making my points.

The current system is also skewed by the high cost of defamation proceedings. The Defamation Bill should leave us with laws that are clearer and, much more importantly, more proportionate. As I have already made clear, we welcome a number of elements of this Bill. However, we are disappointed with the way in which the Government have approached it in the other place and feel an opportunity has been wasted, thus far, to reform and improve our defamation laws. What we have here, subject to one or two minor changes, is not reform but codification. As we know, a Joint Committee of both Houses scrutinised the draft Bill and came forward with a number of suggestions for how the final Bill could be improved. Many of these were ignored by the Government. In the House of Commons, we were concerned that the Bill as originally published did not address a number of problems and we sought to amend the Bill to improve it. The Government refused to take on board suggested amendments, although they turned up on Report with two of those amendments, redrafted, which were accepted. We will revisit many of these in Committee but this is not the time to go through the detail of the Committee stage.

Finally, the Government so far have failed to publish much of the detail of the Bill in the form of regulations and guidance. I listened carefully to the Minister’s assurances about what we can expect in the future. They have repeatedly been asked to publish more information on regulations and other parts of the infrastructure that are important to understand the effects of this Bill but so far have refused to do so. It is undoubtedly the case that for this and other reasons, although this will be in Committee relatively soon, it will be difficult properly to scrutinise and discuss many aspects of the proposals in the Bill in the absence of that information. We will not be able to work out what this will mean on the ground unless we have some sense of the infrastructure in which it is to sit.

I listened carefully to the warning from the noble Lord, Lord McNally, in relation to what I am about to do. The conclusion of the passage of the Bill will come shortly before the anticipated report by Lord Justice Leveson. It comes in the context of a continuing but as yet unshaped review of the law of privilege, and with the failure of the Government to show their hand on the rules on cost protection for defamation in privacy claims. All the regulations that we have been promised will be required for significant parts of the Bill.

The Bill consequently sits in a much broader, potentially confused and changing landscape. This may not be able to be fully clarified by the Government during their deliberations. However the maximum amount of clarity must be given to ensure that this set of reforms or changes will be sustainable beyond those that we can expect from the Government and the response to Lord Justice Leveson, or in relation to the changes in the rules for the court or the rules on costs.

This is a relatively small Bill, now with 17 clauses. I will deal with these clauses relatively quickly, concentrating on where we see the need for further scrutiny, or have criticisms or proposals for amendment in mind. Clause 1 seeks to impose a higher threshold for bringing a claim, a requirement that a statement must have caused “serious harm” to be defamatory. We support this higher hurdle for the reasons set out but believe that there needs to be greater clarity as to what “serious harm” would mean in practice. We will probe the Government to get that clarity in Committee. Clauses 2 to 7 set out the defences that will be available for a claim of defamation. Some replace or codify common-law defences; others create new defences. We will probe the Government’s thinking in relation to Clauses 2 and 3, but we broadly support them and see them as an improvement in the law.

We will test whether, as drafted, Clause 4’s intention to address responsible publication of matters of public interest makes the law clearer and more readily applicable outside mainstream journalism as claimed. The Government’s assertion that it does is not supported by the evidence of the Libel Reform Campaign. Simply replacing an existing defence that does not work and is not accessible with the statutory codification of it does not solve the problem. More importantly, there is a growing and persuasive argument that there is a place for a whole new approach to this issue, either through a new and effective public interest defence in addition to what is in the Bill, or by sweeping away what is presently in the Bill and recasting it.

On Report in the other place, the Under-Secretary of State, Mrs Helen Grant, indicated that the new ministerial team had an open mind about that proposal. This is what I believe the rather enigmatic Clause 7, mentioned on page 2 of yesterday’s letter from the noble Lord, Lord McNally, refers to. He expanded on that today and has told us that is exactly what he has an open mind about. It would be helpful if we heard discussions across those interested parties and across the House to see whether we can come to agreement on a reform or recasting of this part of the Bill to make sure that it passes the test that he set in his letter to us yesterday.

We think that Clause 5 is ill thought-out and incomplete. It creates a new defence for the operators of websites where a defamation action is brought against them in respect of a statement posted on their website. Importantly, the detail of the defence—we are told—will be provided in draft regulations which we have not yet seen and the shape of which we do not know. We have requested that the regulations be approved through affirmative rather than negative resolution procedure because they are so significantly important to this process, but so far that change has not been accepted. It may be that this new listening department will be prepared to reconsider that. This is a key area. Technological developments have advanced much quicker than our laws, and we need well thought-out and potentially sustainable reform because this area of our life moves much quicker than any other. We will need to try to anticipate how those who wish to defeat any regulation we put in place will move in order to defeat that regulation. We will be seeking more clarity on this clause, and seeking to amend it in Committee.

We welcome Clauses 6 and 7 and are pleased that the Government followed the committee’s recommendations and, particularly, that Clause 6 introduces a new defence of qualified privilege relating to peer-reviewed material in scientific and academic journals. Clause 8 introduces a single publication rule to prevent an action being brought in relation to publication of the same material by the same publisher after a one-year limitation period. We support this clause.

Clause 9 addresses libel tourism. Concerns have been expressed that defamation law in England and Wales is more protective of reputation than elsewhere in the world and that London has become the preferred location for defamation actions involving parties with only a tenuous link to the jurisdiction. Although the extent of this issue is subject to debate, while we agree with the need to reduce the potential for trivial claims and address libel tourism—whatever its extent—we think that the necessary changes should be made to the Civil Procedure Rules before the Bill comes into force, so that we are able to discuss the practical implications of this change.

We support the objective of Clause 10—to limit the circumstances under which an action can be brought against someone who is not the primary publisher of the statement—but do not think it affords sufficient protection. We tabled a number of amendments in the other place and we will revisit almost all of these.

We support Clause 11 but would like to see detailed guidance relating to the criteria for the judge to consider when deciding whether a jury trial should be ordered. I digress from my notes here to remind noble Lords that I am a Scottish lawyer. I practised all of my life in a jurisdiction where we did not have the deference to jury trials that the English jurisdiction has. I did it also during a period when we shared a Parliament—when both Houses of this Parliament regularly legislated for the administration of justice both in civil and criminal jurisdiction in a non-jury environment without any demur or question as to whether or not it was doing injustice.

Since I have become a parliamentarian, I have listened to hours of English men and women saying that the only way to deliver justice is through a jury trial, and that any other way of doing it is an injustice. I am always mildly amused by that, as your Lordships can imagine. Although now that we have our own Parliament things are different, there are hundreds of years of this Parliament legislating for a country in which the prosecutor decided whether you got a jury trial. It did that without any concern at all. I say finally, to summarise and get myself out of this kind of cul-de-sac that I have got myself into, that I could paper the wall with the names of miscarriages of justice that I have witnessed in courts, many of which have been perpetrated by juries. Anyway, we support Clause 11—but would like to see the detailed guidance relating to how the judge will apply it—and we welcome Clauses 12, 13 and 14.

The Bill does not make any specific provision for costs or striking out claims. Instead, we are asked to accept the assurance of the Minister and his ministerial colleagues that these issues will be dealt with elsewhere. I remind the noble Lord, Lord McNally, that during the progress of the Legal Aid, Sentencing and Punishment of Offenders Bill to which he referred earlier, he gave my noble friend Lord Prescott an assurance that the problem which my noble friend identified about costs in defamation actions would, and I quote narrowly here, have to,

“be dealt with fully in that Defamation Bill”.—[Official Report, 27/3/12; col. 1332.]

Now, that is not dealt with in this Bill but now the noble Lord gives another set of assurances that we have to accept as to how it will be dealt with. We are concerned about access to justice under the Bill and would like to see the issue of costs addressed in it. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 has abolished the recoverability of success fees and after-the-event insurance premiums. Claimants in defamation actions will no longer be able to insure themselves against costs—and even if they are successful, they may have to pay some of their damages in lawyers’ fees. There are a number of possible ways to address defamation costs, one of which the noble Lord, Lord McNally, explained to us, but we intend to explore all of them in Committee in the hope that we can find something that will allow the noble Lord to make good on his commitment to my noble friend Lord Prescott.

We would like a provision for striking out claims included in the Bill and hope to discuss in Committee the possibility of including a provision to that effect in Clause 1. We intend to table again the suggestion from the committee that corporations should be able to instigate proceedings but that the threshold should be higher for them: that is, where the corporation can prove substantial financial loss. We are concerned that the continued inequality of arms between parties will continue to limit access to justice for many less wealthy claimants.

In my short experience of your Lordships’ House, it is not uncommon for speeches here to be peppered with comments that legislation has left the House of Commons incomplete and barely scrutinised, leaving much work for this House to do. What is less common is that a Bill is sent on its way from the House of Commons with almost every speaker there saying that the degree of scrutiny and revision necessary will have to be carried out by this House because it has not been carried out by their House. However, that is exactly what was said repeatedly by Members of all parties, including Ministers, when the Bill was read for a third time in the House of Commons on 12 September.

In his contribution to Third Reading, the Secretary of State for Justice paid tribute to my right honourable friends in the Commons for the measured, constructive and thorough way in which the Bill proceedings had been conducted. We intend to continue that approach and expect in return that the Government’s promise of an open-minded approach, made repeatedly during Report and Third Reading in the Commons and repeated by the Minister in his letter yesterday, will be lived up to.