Lord Browne of Ladyton
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Defamation Bill
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Lord Browne of Ladyton
My Lords, I beg to move Amendment 1, which is in my name and that of my noble friend Lady Hayter. If it is convenient to the Committee, I shall speak also to Amendment 2, which is also in our names, and Amendment 3, which is in the name of the noble Lord, Lord Mawhinney. First, it may be appropriate to set out the Opposition’s position in relation to this Bill. At Second Reading, I made it clear that we welcome this Bill but that we are a critical friend of the draft before your Lordships. It is appropriate to recognise the work, in particular, of the Joint Committee on the draft Bill, and everyone in working groups and campaign groups who have got us to this point.
We on these Benches support the modernisation of our defamation laws. As was said at Second Reading, there have been concerns that defamation laws are outdated, have fallen behind technological developments of restricted freedom of expression and have attracted libel tourism. The current system is also skewed by the high cost of defamation proceedings. All these issues will exercise our minds as we examine the provisions of the draft Bill.
The objective of the exercise is to amend and revise the law to leave us with laws that are clearer and more proportionate. 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. I am sure that noble Lords will express that objective in many different ways as we proceed. Essentially, that is what we are seeking.
I pay tribute to the Minister for the way in which he has engaged with my noble friends and me, and, I am sure, with other noble Lords. At Second Reading, he indicated that the Government were listening and that they would engage in debate and discussion about a number of aspects of this Bill. I suppose that it is slightly premature to say that the Bill has already been improved but I think that one can anticipate that some of the proposed government amendments will be accepted by your Lordships’ House. In that sense, I think that I am on safe ground to suggest that the Bill will be improved. It has been improved already through its passage in the House of Commons. Since Second Reading, because of engagement with the Government, we have high hopes that there will be a continuation of improvement.
There still are other issues that we wish to address and with which we wish to engage in debate. We hope that the attitude shown so far by the Ministers and their supporting officials will continue, that the Government will continue to listen to the argument, and that we will be able to further improve the Bill.
Amendment 1 seeks to expand Clause 1 by adding the words,
“and the extent of its publication”,
to the test of seriousness. This amendment will be recognised by some as being very similar to an amendment proposed in Committee in the House of Commons. However, the drafting of that amendment properly was interpreted by the Minister, Mr Djanogly, as being restrictive rather than expansive of seriousness. Thus, the Minister avoided engaging with the issue which it was intended to bring forward.
The purpose of the first two amendments is to elicit from the Minister a clarification of the meaning of “serious harm” for these reasons. I commend paragraph 27 of the report of the Joint Committee on Human Rights when scrutinising the draft Bill. It sets out clearly the existing threshold by referring to the threshold of seriousness that requires to be reached to establish that a statement is defamatory and that the courts have the power to throw out a claim where this is not met or where no “real and substantial” tort can be demonstrated. There is wide agreement that that threshold is too low and that the balance in the existing law is not being struck properly. Under the Bill, a statement is not defamatory unless its publication has caused, or is likely to cause, serious harm to the reputation of the claimant. We have been told through comments made by Ministers in the course of the debate thus far that the intention is to raise the bar from what is currently the law.
Overall, Labour supports the objective of raising the bar and reducing the number of trivial cases, but believes that the clause is not sufficiently clear. We have tabled the amendments now before us and those tabled in the Commons in order to clarify the meaning of “serious harm”. They sit neatly with the amendment tabled by the noble Lord, Lord Mawhinney, which would require the Secretary of State to issue guidance on which claims should be struck out by the court for not meeting the test of serious harm. I should record that when this issue was debated in Committee in the House of Commons, the Minister addressed it in an attractive and simple way by saying that the test would be set by Parliament and we should not seek to restrict how judges interpret it. I have some instinctive sympathy with that view. We make the law and the judges interpret it; it is not for Parliament or the Government to lay down exactly what the test means. However, we are trying to achieve a better balance between freedom of speech and expression on the one hand and protecting someone’s reputation on the other, and we are seeking to do that principally through this test. There is an onus on Parliament to understand what it is doing and to be convinced that the devices it uses meet the objective. Therefore, without an explanation of what the effect of this test will be, what the Government intend by it and how in practice they think it will meet the objective, it will be well nigh impossible for Parliament to be convinced that the objective of striking the proper balance has been met. These amendments seek to provide the Government with an opportunity to explain how the objective is met by the test.
The amendments have also been tabled against the background of the history of this process. The draft Bill had a different test. The Joint Committee recommended yet another test. The tests are similar to each other, and the Government chose a third one. There is an argument that the process has confused rather than clarified the position. I refer to the first sitting of the Committee on 19 June 2012, where Karl Turner, the MP for Kingston-upon-Hull, rose to support an amendment similar to those before your Lordships today. He started off by setting out his agreement with the underlying principle behind the existing clause. He said he was,
“searching for clarity in the face of some possible confusion”,
and he set out broadly the argument that I have sought to set out. He said:
“Clause 1 aims to introduce a hurdle for pursuing claims through imposing a serious harm test, meaning that a published statement can be defamatory only if it has caused or is likely to cause serious harm”.
He said that he thought that that was sensible, and set it against the current situation. He went on to accept—and I accept—that the,
“decision to apply such a hurdle will allow judges to strike out trivial claims … early on, and reduce the expense and time taken by needless and vexatious litigants”.
He then explained why he supported the amendment and encouraged the Minister to engage with it. He said that,
“a clearer statement of what is meant by ‘serious harm’, specifically how it differs from harm”,
would be helpful. He added:
“There must be a clear indication of the intended meaning of serious harm, otherwise the clause is likely to fail in its principal aim, which is, as I have said already, to prevent vexatious claims. The explanatory notes outline that the clause raises the bar for bringing a claim, but the lack of understanding regarding the true meaning of ‘serious harm’ means that we do not know how high the bar is being raised. This is a concern not only for the lawyers and judges”—
we have enough lawyers in this Room to engage in this debate and keep us going for a long time—
“who will be required to interpret the law once it is passed, but also for the House, which has to scrutinise the legislation now”.
He continues by making the point that makes my point in the clearest way. He said:
“Unless we are clear about how high the bar has been set, we shall be unable to understand fully whether the Bill strikes the correct balance between freedom of expression and the protection of reputation, which I think we all agree is what the measure seeks to achieve. It would thus be helpful if the Minister could place on record some examples of what he considers ‘serious harm’”.—[Official Report, Commons, Defamation Bill Committee, 19/6/12; cols. 9-10.]
I could continue because my honourable friend supported his argument well thereafter.
The disappointment thereafter was, with respect to the Minister, Jonathan Djangoly, that he did not engage with this issue at all and suggested that just the history of the process—the consultation and the decision made by the Government to rest upon “serious harm”—was quite sufficient and that it was thereafter a question for the judiciary. I do not agree with that. We should continue to give the Government the opportunity to explain and answer these questions. I have repeated a slightly revised version of the original amendment for that purpose, and we have drawn on the work of the Joint Committee by proposing to add the words, “and substantial” to this clause, which was the committee’s recommendation, and give the Government the opportunity to give the explanation that they have thus far avoided giving.
Finally, before I sit down, I say that this test is crucial to what the Government are seeking to do and what we, and most of those who will contribute to this debate, are seeking to support. We will continue to return to this test because it is at the heart of the argument. If we can get clarity about this at the beginning, many of the other proposed amendments to the legislation can be seen off by reference to the effectiveness of a proper test. If there is no clarity, amendment after amendment will be tabled—and many have already been put down—seeking to draw further explanation in order that noble Lords can be satisfied that the objective will be met.
I support the amendments in the name of the noble Lord, Lord Mawhinney, who served with great distinction in his chairmanship of the Joint Committee and has done us great service on this Bill, in order to give the Government and the Minister the opportunity to set us off on our discussions with some certainty and clarity, and provide an explanation that will serve us well during the rest of our debates.
Lord McNally
First, I have already pointed out that my noble friend’s concerns about costs are being addressed in parallel with the Bill. Secondly, as we go through the Bill, we need to look at it as a cohesive whole. There are other factors and proposals that deal with some of the problems he is concerned about. It may help the Committee, and the way that I want the Committee to work—we are in the Moses Room and so we will not divide at the end of these debates—if I say that I will listen very carefully to the contributions made by Members, look at the legal advice, whether unanimous or conflicting, and take the advice of my advisers. I see that as the best and most fruitful way of using this Committee. At this stage, I am trying to give the Committee an idea of the Government’s thinking thus far and what the background is to any particular proposal. That is not the final word on these matters, although it should not be taken as an encouragement that there is a concession in the offing. As an old hand, I hope that the noble Lord, Lord Browne, approves of the balance and that it will encourage my noble friend Lord Mawhinney, although not too much. We will see how these debates unfold.
The courts already have the power under Rule 3.4 of the Civil Procedure Rules which permits them to strike out all or part of a claim where there is no reasonable ground for bringing it or they consider it to be an abuse of process. The courts are very familiar with that power, and we have no doubt that they will use it more when this is in place.
Other lawyers have said to me that this will all be tested in the courts. Indeed it will but, to answer a point made earlier by the noble Lord, Lord Mawhinney, we are trying to lift the hurdle but are consciously trying to keep the balance right in what we are doing. I hope that noble Lords will be prepared to withdraw the amendment in accordance with the procedure for Committees in this Room. To take the point made by the noble Lord, Lord Browne, once people have had a chance to look at Hansard and at our thinking on any particular area, if they want further clarification, I would be very happy to talk to them. I hope that the noble Lord will be prepared to withdraw his amendment.
Lord Browne of Ladyton
My Lords, with all respect—a phrase that lawyers use when they have no respect—to all noble Lords and noble and learned Lords and to the Minister who boasts that he is not a lawyer rather than disclaims that he is, the most important contribution to our short debate, for which I am very grateful, was by the noble Lord, Lord May of Oxford. He reminded us that we are changing the law and that will significantly affect the way in which lawyers, be they judges, barristers or solicitors, work in advising. We have set ourselves the task of trying to make the law in this area clear to affect the way in which people behave. Most of those people are not lawyers, and nor should they have to be lawyers in order to understand the limits of behaviour that will put them at risk.
With respect to the noble Lord, Lord Lester of Herne Hill, who knows that I have an enormous degree of admiration for him, his response to the intervention by the noble Lord, Lord May of Oxford, was—I hate using this phrase—technically correct, but it missed the point. The point I am trying to make in this part of the debate is that we have an opportunity to give an explanation of what we think we are achieving here. We have a perfect example in this short debate because of the very concise and helpful interventions by a number of lawyers about just how that could be confused. I am extremely grateful for that. In a simple sentence, the noble and learned Lord, Lord Scott, supported my amendments and then made well made point that was not in any way undermined by the amendment tabled by the noble Lord, Lord Mawhinney, because neither he nor I—and I support his amendment for the purpose that I explained—think that judges are incapable of doing this. We know that judges are capable of looking at this test and applying it to the facts, having listened to the legal argument. We know because—although I have never practised in England, I have had to bone up on the procedure—there is a process whereby the issues in dispute become apparent by the process of pleading and the exchange of arguments and facts. I do not think that any of us have any doubt that judges will be able to do that.
Actually, if that is the point at which decisions are made in relation to the tests that we set, we will have failed because we want these decisions to be made much earlier in the activity. We do not want people to have to go to the court at all, if that can be avoided. We do not want people to have to run off to very expensive lawyers who are capable of doing what we lawyers have just done in this debate, which is taking the advice of a former Lord Chancellor, the noble and learned Lord, Lord Mackay of Clashfern, who we all admire, which is that there is a distinction between “substantial” and “serious”. However, we had a very clear, lucid and believable explanation of why “serious” includes “substantial” from the noble Lord, Lord Faulks, using his experience and practice in the law. He was supported by the noble Lord, Lord Lester of Herne Hill, who said that this simpler, one-word test is the most appropriate way to move forward because the justice system can cope with it much better.
Lord Browne of Ladyton
If the noble Lord will excuse me, I will give way to his noble friend the solicitor first; then I will get to the barrister.
Lord Phillips of Sudbury
I must confess to being confused by the noble Lord’s argument. He started with a passionate point about making the law more accessible and understandable to the ordinary bloke, which is what the noble Lord, Lord Mawhinney, was concerned about. But how can it serve that purpose to have two words instead of one in circumstances where we already have had very experienced lawyers disagreeing as to the meanings of those two words? I note that the noble Lord has not advanced any view on the difference between “substantial” and “significant”. It seems to me that his recipe would confuse the layman.
Lord Browne of Ladyton
I am grateful to the noble Lord for his intervention but I am perfectly happy to adopt the distinction that the noble and learned Lord, Lord Mackay of Clashfern, offered the Joint Committee and that the chair of the Joint Committee has reported to us. I will live with that. I am happy to accept that. But that is not my point. Although I am speaking to amendments in my name and that of my noble friend, I am using them as a device to try to get some clarity of the Government’s thinking so that our Parliament can say, “We support that thinking. Therefore, people outside can have some understanding of what at least we think we are doing with the law”.
If anyone goes away and reads this, here we have an interesting debate in which a number of differing opinions have been expressed, all supported by eminent lawyers. If that leads to clarity, I am happy to go along with it. It may not be possible to provide the clarity that people crave. But my argument is that in our debates we should at least give some clear indication to people outside—they should not need a law degree for this—about where we are setting this bar and what it means. There are a number of ways in which one can do that, including reference to examples.
I turn now to the Minister’s response. I am grateful to him for the way in which he engages in the debate on these issues. Perhaps the noble Lord, Lord Lester, will allow me to make this point, then I shall take his intervention. I am grateful to the Minister for the way in which he engages in the debate and I know that he will listen carefully to any further points that I or anyone else want to make. I will go away and look carefully at what he has said.
While the Minister was speaking, I was looking carefully at what Jonathan Djanogly said in the equivalent debate in the House of Commons. He will be pleased to know that there was a lot of similarity. But there was some difference and it is that difference for which I am grateful.
Lord Lester of Herne Hill
The noble Lord said that I was technically correct. That is fine. If I am technically correct, that is good enough for me. I hope he will accept what I am about to say in a light-hearted spirit. We have now spent slightly more than an hour and the way in which the noble Lord, Lord Browne, has dealt with the matter is exactly the way we should not deal with the matter when interpreting Clause 1. If the kind of point that he makes were to be made before judges, we would undo the very purpose of Clause 1. The purpose of Clause 1 and the word “serious”— I do not agree with the noble and learned Lord, Lord Mackay of Clashfern, that we need the word “substantial”—is to make this a short, simple, preliminary procedure in which the judge, without having to go into evidence, is able to rule on the basis of what he has before him as to whether the case should proceed. That is the intention.
The more that the noble Lord, Lord Browne, refers to differences of interpretation by this person and that person, the more I despair. If those kind of points are made by advocates in interpreting Clause 1—whether with “serious” or “serious and substantial”, and in my view “serious” includes “substantial” and it clearly also includes the extent of publication—the more complicated it is made and the more it will defeat the purpose. We do not want to bar claimants with important claims, nor do we want trivial claims to be brought forward. That is what Clause 1 does; it strikes a balance. I beg him not to add to the complexity. As a great advocate he is very good at raising all these points, but it will defeat the whole object of Clause 1.
Lord Browne of Ladyton
I accept what the noble Lord has said and I respect it enormously. I do not treat it light-heartedly. I think he makes a serious point. I feel I may have lost my powers of advocacy actually because I was not seeking to argue to change the words. I was seeking simpler clarification of the words and was using the only device that is open to me in these circumstances. I may not have served that purpose and may have opened up the opportunity for debate, but I do not think that I have done anything other than give some people who are not lawyers a window into the world that we will be living in when lawyers get hold of what we produce.
Lord May of Oxford
I do bear in mind that we want to move on. I may well have missed some of the points, but I think part of the missing of points is cultural sliding past each other. I completely agree with what the noble Lord has just said. One ideally wants a simple procedure where a good judge hears what it is all about from well-chosen people. However, I reel back in dismay when I hear other people who said that he examines the material that has been assembled. The noble Lord clearly does not mean that and if it is going to be like that then I am with him.
My one experience of this kind comes out of the Meadow case. Noble Lords may remember this incompetent statistician who created a quite serious set of problems. In the wake of it, some of the medical statisticians at the Royal Society said, “Why don’t we make a report on it?”. I said, “No, why don’t I talk to Hayden Phillips and we will get together with some legal people to ask how we can be more helpful?”. Indeed, we got together with Igor Judge, the noble and learned Lord, Lord Judge, this was before he was Lord Chief Justice, and had a very interesting conversation but it was slightly strange.
I do not apologise for boring noble Lords with this because I think it is illustrative. When I was in school, we had a rather good debating team which consistently beat the debating team led by Murray Gleeson. The captain of our team is now a High Court judge in New South Wales. They have a new way of handling expert witnesses, which is along the lines that the noble Lord just advocated. Instead of getting a credentialed expert witness such as Meadow or somebody else from a company that gives credentialed expert witnesses who are often not very expert, the judge asks appropriate people who would be a good person to bring in. Then he holds a mini tutorial in which the two sides are able to ask questions, but one seeks understanding. The whole Meadow thing would never have happened had that been done.
However, after we had presented this idea and a willingness to help do it, it was explained to us that we simply did not understand. We were missing the point of the legal system. What would be really appreciated would be if the Royal Society would set up a committee to formally accredit expert witnesses, which did not seem to us what the debate was about. I am worried that what is being described and what is in your Lordships’ minds are not easily going to be translated into anything that is not almost as expensive as what is currently being used as a weapon. In the situation involving Nature and Simon Singh, the people who were being criticised did stand to lose by the criticism, but the expert opinion was that the criticism was valid. It could have been settled by a judge in half an hour, but the defence cost Nature £1.5 million.
Lord Browne of Ladyton
I am again grateful to the noble Lord, Lord May, whom I think I misnamed earlier. However, I have no intention of going any further with this, having made the point I want to make at this stage. I am grateful to the Minister for his response. He has added to my understanding of what the Government are seeking to achieve, and I broadly support that. If it achieves the objective, I will go away and think long and hard about what is now on the public record. If that is sufficient, I will abandon my search for any further clarity in this area. If it is not, I may of course return to this issue at some later stage in the Bill, but for the moment I beg leave to withdraw the amendment.
Lord Faulks
My Lords, not out of loyalty to my late uncle, I think there was a considerable amount in the majority view of his committee. The amendment here restricts a remedy to circumstances in which the defamatory statement,
“is so gross as to cause serious harm to individuals or a breach of the peace”,
which is a very significant hurdle indeed.
There is something, I suggest, that is rather crude about the fact that a defamatory statement or statements can be published and the potential claimant can read about them, can begin action in respect of them, but the moment he or she dies that is the end of the matter although the harm remains unremedied and the anxiety and loss may well have ramifications for his or her family. That is a crude cut-off point.
I know that the Minister he has already given anxious thought to this matter, but I ask him to consider, if there may not be a claim for damages, that there might at least be a remedy by way of an injunction or apology, so that those in the position of the Watsons, referred to by my noble friend Lord Hunt of Wirral, would at least have the satisfaction of knowing that their daughter’s honour had been thoroughly vindicated and could rest a little more easy in the wake of such an appalling tragedy.
Lord Browne of Ladyton
My Lords, in the House of Commons, Helen Goodman sought to amend this Bill to allow certain categories of close relatives to bring defamation actions in respect of statements made about a deceased person up to a year after that person’s death. That amendment is in the same area—in principle if not in effect—as that of the amendment moved by the noble Lord, Lord Hunt, today. She drew substantially on the Watson case and gave a compelling argument that this set of circumstances was crying out for redress. I do not intend to add to what the noble Lord, Lord Hunt, has said today, but the Watson case was one of three examples she used, and it is a particularly shocking case.
The family suffered greatly, losing two children as the result of a series of incidents, and then on the day of the funeral of their son, who undoubtedly killed himself because of the way in which his sister’s reputation was trashed, the allegations were repeated in an attempt to try to justify them. We sought to divide the Committee in the House of Commons on this issue—not, as my honourable friend Rob Flello explained, because we thought that the Government’s position in resisting the amendment could be criticised, but because of these shocking circumstances and other cases like it. Unfortunately there are far too many cases that are crying out for resolution and some remedy in the form of a response by government and politicians which recognises that there is a need at least to try to protect the reputation of a family and their daughter in these dreadful circumstances.
Lord Lester of Herne Hill
Leaving aside smoking for the moment, how does the noble Lord respond to these various committees all pointing out the impossibility of there being a fair trial when one of the parties in a personal tort like this is dead? It is impossible to conduct a trial after death. This is a matter that one has to respond to if one is going to advocate a change in the law.
Lord Browne of Ladyton
I am enormously grateful to the noble Lord, Lord Lester, but perhaps my powers of advocacy have failed me with him once more. I thought I made it clear that I do not support the amendment for many of the reasons he rehearsed by reference to the document he read from—I am not sure what it was, perhaps it was the report of the Neill committee.
For all the reasons I have evinced, I think that it would be impossible to make this work, and I suspect that the noble Lord, Lord Hunt, also probably thinks that it would be incredibly difficult. I just want to repeat the point that we have some obligation not only to the Watson family but to many other people who have to live with the consequences of this sort of behaviour. We have to apply our minds to trying to find some way of giving them redress or at least a way of healing the damage that is done post mortem to the reputations of people who cannot defend themselves.
Lord Scott of Foscote
My Lords, perhaps I may add to what has been said. The inability to bring an action for defamation on behalf someone who is deceased does not prevent action being taken to prevent repetition of the untrue allegations that are being made if it can be shown that their repetition is likely to cause a breach of the peace. I came across such a case when I was a barrister and was once instructed to do something to stop lies, as I was told, being told about a deceased public figure. I said that defamation was not a runner but that one could get an injunction, not damages, to stop a repetition if there was a real likelihood of a breach of the peace. However, for that purpose, one had to get the consent of the Attorney-General. I applied to the Attorney-General, who refused to give his consent, and that was the end of the matter.
Lord Lester of Herne Hill
My Lords, some believe that corporations should not be allowed to sue for libel at all. I think that that is wrong because although the feelings of a corporation cannot be hurt, it can be hurt in other ways, such as hurt to its reputation and trade.
In my Private Member’s Bill, I included a requirement of serious financial loss or likelihood of it, but I was not able to persuade Ministers or their officials that that was necessary because I think they took the view that it was quite clear as a matter of common law and therefore did not need to be spelt out in a Bill. Therefore, I am particularly enthusiastic about supporting these amendments which seek to do what I thought should have been done in the first place, as it were.
The problem of David and Goliath, to which the noble Lord, Lord Triesman, referred, which may apply to a very powerful claimant or a very powerful defendant, cannot be tackled by the Bill on its own but needs to be tackled holistically. Above all, it needs to be tackled by wise case management. I do not say this because I am sitting opposite three distinguished former members of the judiciary but because I have enough confidence in the judiciary and in the common sense of judges to know that if they are given enough encouragement—as I am sure they will be by the Master of the Rolls and through changes in the Civil Procedure Rules and so on—to grab a case at the beginning and to find ways of trying to equalise the unequal power of parties, they will do so. They can do so in a lot of ways that do not need to be in the Bill itself. They can do so through the application of the Civil Procedure Rules or by the application of common sense. For example, there is no reason why a judge cannot cap costs at the outset or why he or she cannot determine that there is an extremely powerful defendant or claimant and that the other party is unable to have equality of arms. Judges can also lay down procedural steps to be taken, including alternative dispute resolution and matters of that kind. In my view all that does not need to be legislated upon by Parliament because we are trying to find out what is sensible for the legislature and the judiciary to do. My view is that you lay down some general principles but do not interfere with the discretion of the judiciary in interpreting those principles.
Lord Browne of Ladyton
I apologise that I was out of the Room when the noble Lord started speaking, but I substantially agree with him. In fact I totally agree with him that the management of cases by the judiciary can make a significant difference to the length, complexity and cost; it can deal with all of those issues. Will he at some stage in our debate—it may not be appropriate to do it now, but we will get an opportunity—with his vast knowledge of the courts we are talking about here, and I do not have that knowledge, explain why that appears not to have been happening? What are the impediments to it? How can we address them? Has the holistic approach failed? If it has failed in his view up until now, where has it failed? That is the nub of the issue. He is conscious of the time that we are spending debating these issues—and so am I—and we may be spending our time debating the wrong things.
Lord Lester of Herne Hill
I should be careful what I say, because I shall now offend some members of what is known as the libel Bar. I am not a proper defamation lawyer, although I have dabbled in it. My dealings with my colleagues at the libel Bar have led me to conclude that the great technicality and obscurity of elements in the existing law are no fault of the judges but are very much the fault of my colleagues who have enjoyed very inward introspective legal practices that have added to the problems. In the framework we now have, it is extremely hard for the judiciary to cut out the nonsense that is there as a result of my fellow practitioners. I am sorry to defame a group of them, but there it is.
The other thing I wanted to say, which my noble friend Lord Faulks has referred to, is about the unsatisfactory idea of focusing on the company as though the company is a monolithic concept. If you focus just on the company, you leave out all kinds of other powerful bodies that are not companies at all: a trade union is a good example, although that has been dealt with in the case law in a particular way; many unincorporated associations; and many bodies that are very powerful NGOs, for example. The problem with the word “company” is that it is both underinclusive and overinclusive. It is underinclusive because it does not catch other powerful bodies that are not in corporate form, and it is overinclusive because the little dress shop company that my noble friend Lord Faulks has in mind—a one-director company—is in a completely different position from McDonald’s. That is why it is fact-sensitive and can be dealt with by the judiciary only on a case-by-case basis.
The amendments that we are now considering do not trespass on the courts in overreach. They are dealing with one aspect of the problem. The holistic approach involves case management, procedural rules and guidance in order to counter the kind of problems that the noble Lord, Lord Triesman, had in mind.
I am therefore enthusiastic about these amendments, but they do not and cannot deal with the whole of the problem.
Lord Browne of Ladyton
I shall also speak to Amendment 7, which stands in my name and in the name of my noble friend. The underlying purpose of this amendment is similar to that of the amendment which has just been spoken to by the noble Lord, Lord Mawhinney. He seeks to do much the same thing as the amendment that stands in my name, but by a requirement for action before a court action can proceed. I seek to do it by what could be called—in the context of the discussion that we have just had—a multiple fracture of the prohibition against putting case management in the Bill.
I have no delusions that this will find support in Committee because it is such a multiple fracture, but it is quite deliberately so for a purpose. It is our attempt to implement the recommendations of the Joint Committee, but it goes further and does so for very specific reasons. Those reasons are that on this side of the House we have to be convinced that the holistic approach that we favour can address the fundamental issues of the problem that is before us and has its manifestation in all the many examples that we have heard this afternoon and which are recorded faithfully in the deliberations on this Bill since it was first introduced in its draft form.
I muse here—listening to the noble Lord, Lord Mawhinney, speaking to us in his distinctive Northern Irish accent and as I rise to speak in my Scottish accent—that there is more than one jurisdiction in these islands. I consider also, and I have considered this in other circumstances often, that until very recently—over hundreds of years certainly as regards Scotland—this Parliament in a statutory sense legislated for more than one jurisdiction on these islands. Only one of these jurisdictions has turned into the defamation capital of the world.
The answer may be as simple as the answer given to my intervention on the noble Lord, Lord Lester of Herne Hill, that this is a function rather of a niche ability that has developed in the Bar in London, which cannot be contained by case management appropriately with the tools that we give to the judiciary. There may be other reasons for it, but it seems that the answer probably to what we need to do to the defamation laws of England and Wales lies somewhere in these islands.
I am not entirely sure what it is because I have no particular expertise in this area of the law, but it is curious that lawyers, judges, courts and laws that are very similar to each other have operated in these islands in distinct jurisdictions but only one of them has got into this difficulty. Trying to identify the reason for that, and to address it, is what should be exercising our minds. We may, as I suggested in my intervention, be addressing it in the right way by changing the test and by doing all the other things that are in this small but comparatively complex piece of legislation or it may be much more important that we make changes in the way in which cases are managed and in which the costs of them are racked up.
This amendment seeks to insert a clause for early resolution procedure against the background that the Government originally announced that they would do this in the draft Bill and in the Commons explained why they were not willing to do that. We have now the advantage of the letter of the noble Lord, Lord McNally. I am pleased that the document that he read out earlier in relation to cost protection is the final annexe to his letter. This document does not need to be put into the public domain; effectively, it is in the public domain in any event. With my imperfect understanding of civil procedure in England, it seems to me that this protects a party from the liability to pay the other side’s costs if a case fails—if I understand what cost protection is. This seems to me to be half the problem.
If I had to face the prospect of having to litigate in an action for defamation with a substantially wealthy opponent, no matter which side of the argument that opponent was on, I suspect that in this jurisdiction it would cost me a significant amount of money just to engage in that litigation. I would be terrified at the prospect of losing and having to pay the other side’s costs, and I am pleased to note that parties in defamation cases may be protected from that. However, the prospect of having to pay the costs of my own side would still be terrifying.
The letter goes further and provides what I hope are many of the answers to the points being raised in this debate. The documents attached to it seem to be a set of guidelines on how the Government would like the existing case management rules to be amended or applied in order to try to achieve earlier resolution. It looks at how the existing strike-out procedures should be applied. Indeed, on reading the Minister’s letter in a holistic way, it is clear that, while not using exactly the same words, many of the issues are reflected in the amendment we have tabled. However, it is important to note that in this amendment we have gone further and provided that one of the key issues to be determined, under subsection (3) of the proposed new clause, is costs management.
To save other noble Lords and noble and learned Lords from pointing out why this is an inappropriate thing to do in a Bill, perhaps I may say that I readily accept that that is right. However, I think that the Government need to be given the opportunity to spell out the steps they intend to take to address the issues that lie at the heart of the problem we are facing. If we can make a contribution towards shaping a holistic approach, despite the fact that this goes beyond what the Bill should say in the strictest sense, that will assist in increasing the confidence of Parliament in this revision of the law. What is much more important is that it will increase Parliament’s confidence that a holistic approach, as referred to by the noble Lord, Lord Lester of Herne Hill, will not quickly put us back into the situation we are in already, but that there is some hope of addressing it.
I am offering the noble Lord this amendment to provide him with an opportunity to explain in accessible terms the steps that the Government are taking which are complementary to the legislation, and to offer the Committee some assurance that not only will they be completed by the time the legislation is ready to be put into force, but that they will be effective in terms of addressing the issues that are at the heart of this problem. Before I sit down I would suggest to him that if it has not already been done, perhaps a study of how at least one of the other jurisdictions in these islands deals with defamation issues might be instructive. I will say again for the benefit of the noble Lord, Lord Lester, that of the several jurisdictions in these islands, only one of them has become the libel capital of the world.
Lord Faulks
My Lords, I understand what is behind these amendments and of course I share the desire of other noble Lords that matters should be settled or litigation avoided if that is at all possible. My noble friend Lord Mawhinney said that his committee on the whole eschewed recommendations for case management. However, by this amendment he seeks to go into that area.
A word of caution might be appropriate. There is always a danger if you set up a series of procedures to be undertaken because you will frontload costs and increase the overall bill of litigation. Although I accept what my noble friend Lord Lester said about the libel Bar and its propensity to make rather arcane rules on pleading, for example, there are specialist libel judges who are well aware of all the issues, and defendants and claimants regularly bring matters to a judge at an early stage for determination in order to serve their clients well.
I do not think that we should proceed on the basis that this is an entirely unco-ordinated, inelegant process. No doubt, improvements can be made, as the Minister will tell us. I await with interest to hear what is suggested. But I respectfully suggest that these are rather cumbersome amendments which will not, I fear, achieve what they intend to do.
Lord Browne of Ladyton
My Lords, I beg to move. This amendment follows very closely the wording of the draft Bill of the noble Lord, Lord Lester of Herne Hill, concerning a similar clause. I am confident that it will at least pass the test of being a clause that ought to be on the face of the Bill and that it does not contravene the rule we are applying to ourselves that we should not legislate for case management. The purpose of moving this amendment is to complement the stiffer or changed test that we have discussed in relation to Clause 1; this same purpose was served when an identical amendment was moved in the House of Commons. In that sense the test itself will not serve the purpose that we all seek unless it can be applied early in the proceedings. If it is obvious that the claim being made cannot meet the test, the action can be struck out. In my view, with which I think the Government agree, an effective strike-out procedure is necessary to ensure that trivial and vexatious claims are struck out at the earliest possible opportunity.
We seek to put this procedure into the Bill because in this legislation we are seeking to make the law as clear as it possibly can be for the ordinary citizen. We seek to encourage those who are not legally qualified with the assurance that if there is utter merit in their position, they will be able to resist an action brought against them by having recourse to a strike-out procedure at an early stage of their engagement in legal proceedings. The amendment therefore seeks to add a strike-out provision to Clause 1 by means of a new clause that would imposes a duty on the court to strike out an action if it does not satisfy the serious harm test in Clause 1. It would allow the court to do that either of its own accord or on the application of a party. I note from the annexes and the letter dated 10 December 2012 that the Government themselves seek to create a series of opportunities in which a case can be struck out on the application of a party, or at a later stage in the process by the court of its own accord. To that degree, we are not entirely in sync, but we are in agreement.
When this point was raised in the House of Commons, the Minister said that the Government’s position was that they did not consider a provision for strike-out to be necessary. I anticipate that the Minister will respond that it is the intention of the Government to revisit the normal rules, in particular Rule 3.4, which is the rule that is referred to in the noble Lord’s letter. It is our firm belief on these Benches that this of itself will not and cannot be guaranteed to be sufficient. Putting this provision in the Bill will not in any way undermine the ability of the rule to be applied, but there is a distinct difference between what the Minister and the Government seek and what we on these Benches seek. The existing rule says that the court may strike out the claim. This provision would require the court to strike out the claim.
Lord McNally
My Lords, I may have been rather hasty in saying that the Lord Chancellor is in favour of county courts, but I am going to rush back to the MoJ and tell him to get it on the record quick because there seems to be so much support for them. It is an interesting point and again I can see the value in the recommendation as just read out by my noble friend Lord Mawhinney. Along with other matters, I will ponder on it. I did not say that we could not legislate for case management, but I want to hear the arguments. As for my noble friend’s suggestion that the Lord Chancellor might be afraid of doing this because of a fear of offending the judiciary, that is not something I have heard said about the Lord Chancellor very often in recent weeks.
Amendment 6 deals with the issue of strike-out. It would put a new strike-out power into the Bill that would require the courts to strike out actions that do not meet a certain threshold unless the interests of justice require otherwise. We do not consider that there is any need for this provision. As I indicated when responding to Amendment 3, the serious harm test in Clause 1 and the new early resolution procedures will ensure that the court has at the forefront of its mind the need to make sure that trivial and unfounded claims do not proceed. As the noble Lord, Lord Browne, anticipated, I will also argue that the courts already have a power in Rule 3.4 of the Civil Procedure Rules which permits them to strike out all or part of a claim where there are no reasonable grounds for bringing it or they consider it to be an abuse of process. The courts are very familiar with that power, and we have no doubt that they will use it more in defamation cases once the new higher threshold is in place. As I have said before, one of the aims of this Bill is to make the law simpler, so unnecessary duplication such as that proposed in this new clause would conflict with that aim.
As we have explained in the note recently provided to Peers, we intend to make changes through the Civil Procedure Rules to ensure that the key preliminary issues are determined at as early a stage in the proceedings as possible. Where the question of whether the claimant has suffered or is likely to suffer serious harm is in dispute, this is one of the main issues that the court could be asked to consider under the new procedure. On that basis, I hope that the noble Lord will agree to withdraw his amendment.
Lord Browne of Ladyton
My Lords, I shall do my best to get my words in the right order, something that I am learning to do every day in your Lordships’ House. I thank the Minister for a response which to a degree I anticipated when moving the amendment. I am grateful to the noble Lord, Lord Lester of Herne Hill, for complicating quite considerably my deliberations on this issue. I think I understood his point about the absence of the serious harm test in his Bill, and I know that the Government have prayed that in aid as part of the reason it is not necessary to provide for a strike-out procedure in this Bill. I shall also interrogate the Lugano Convention argument to see whether it has a significant effect on the existing rules of court that the Government are also praying in aid as part of their argument for why this is not necessary.
I thank the Minister for the detail set out in his response, and as I have said before, I am willing to have faith in an holistic approach in our deliberations, as it has become known. If we can have some transparency in the other elements of the holistic approach and be satisfied that they will meet our collective desire to offer the opportunity for people to reach early resolution in disputes of this kind in an affordable way and in a timescale that makes sense in relation to the issues, I am content to beg leave to withdraw my amendment. However, I am sure that we will come back to this issue later, if not in the form of an amendment, at least as part of our further debate.