Defamation Bill

Lord Browne of Ladyton Excerpts

Tuesday 5th February 2013 Lords Chamber

[Lord Lester of Herne Hill]

My Lords, I move Amendment 4 essentially on behalf of the noble and learned Lord, Lord Lloyd of Berwick, who cannot be here this evening. In the light of what has just been said by the noble Baroness, Lady Hayter, I am hoping that when the Explanatory Notes to the Bill are brought up to date when the Bill becomes law, some of these points will be dealt with in them, which is an authoritative way of doing so.

There are two ways in which I can move this amendment: the long way and the short way. Since I detect in my noble friend Lord McNally’s previous reply not exactly bitterness but a sort of cynicism about certain attitudes, I shall do it the short way because I think we can cut the cackle on this by coming to the point that was troubling the noble and learned Lord, Lord Lloyd of Berwick, and Sir Brian Neill.

The amendment turns on a case called Telnikoff in the context of the honest opinion defence in Clause 3. In Telnikoff, the House of Lords decided that it was insufficient for a letter commenting on a newspaper article to refer to the article in order to establish that it was opinion, not fact. The letter had to be recognisable as opinion on its own rather than in the context of the article. My noble friend wrote to the noble and learned Lord, Lord Lloyd, on 9 January. I shall not repeat what he wrote, nor will I repeat what was said by the Minister. It did not satisfy the noble and learned Lord, which is why he wished to come back to it on Report.

I suggest that if the Minister in his reply can clear up any further confusion by making it clear that in the light of the Bill the Government do not regard Telnikoff as good law, so that if the same facts were to come before the courts under Clause 3(3), a reference to the original newspaper article on which the letter was commenting should be enough to establish the first and second conditions in Clause 3, that would be most helpful. When the noble and learned Lord, Lord Lloyd of Berwick, returns, if he does not find the answer sufficiently clear I will leave it to him to decide what to do at Third Reading. I beg to move.

[Lord Browne of Ladyton]

I support of this amendment and do so by adopting the argument put forward by the noble Lord, Lord Lester of Herne Hill, which, I think, in turn adopts what I described as the compelling argument put forward by the noble and learned Lord, Lord Lloyd of Berwick, in Grand Committee on 19 December at col. GC 522. I commend the recommendation of the noble Lord, Lord Lester, to the Minister.

In rereading the debate in Grand Committee, I am reminded that he offered a very similar opportunity to the Minister on that occasion, which the Minister scorned. I think that the noble and learned Lord, Lord Lloyd of Berwick, was awaiting the letter that became the letter of 9 January 2013. I recollect that in col. GC 528 in the same debate the noble Lord, Lord Ahmad, indicated that he might be able, in the same vein as was suggested by the noble Lord, Lord Lester, to give the comfort that the noble and learned Lord was seeking. I have to say—this should not surprise anybody—that we were all, I think, persuaded by the noble and learned Lord’s argument in relation to Telnikoff and why it should not still be considered to be the law in the same circumstances. I hope that the Minister will be able to respond to the opportunity that he has on this occasion to resolve this issue once and for all.

[Lord McNally]

My Lords, I indeed hope that this will be resolved once and for all. If my noble friend is going to withdraw under the temptation that the noble and learned Lord, Lord Lloyd, can bring this back at Third Reading, I would rather that he tested the opinion of the House. I will try to make as clear as possible on the record the Government’s opinion on this, but I cannot start trying to rerun 20 year-old legal battles.

Clause 3 provides for the honest opinion defence to be available if three conditions are met. Amendment 5 provides that the second condition in subsection (3)— that the statement complained of indicated, whether in general or specific terms, the basis of the opinion—is met if the defendant indicates the subject matter of a letter or article appearing in a newspaper or other publication and the date when it appeared.

On the basis of our discussions with the noble and learned Lord, Lord Lloyd, on whose behalf my noble friend is speaking this evening, we understand that the core issue underlying the amendment relates to what should be taken into account in determining whether the statement complained of is one of fact or opinion. We consider that this goes to the first condition in Clause 3(2)—that the statement complained of was one of opinion—rather than to the second condition in subsection (3).

At common law, when deciding whether a statement is one of fact or opinion, the court can look at the statement only in its immediate context. So if the statement appears in a news story or in a letter to an editor, the court can look only at the particular news story or the particular letter. The intention behind Amendment 5 is to change this so that the court can also look at other documents that provide a context for the statement.

This is a difficult issue, as is evidenced by the varying judicial opinions that were expressed when this was considered by the Court of Appeal and the House of Lords some 20 years ago in the case of Telnikoff v Matusevitch, to which my noble friend has referred. However, on balance, and with the greatest respect to the noble and learned Lord, Lord Lloyd of Berwick, the Government believe that the current law is in the right place. We consider that it should be clear from the document in which the statement appears that the author is expressing an opinion, otherwise a reader cannot know that there is a judgment to be made. They must be entitled to accept as a fact something that is presented as a fact. It follows from this that we cannot accept Amendment 5. Although the Bill abolishes the common law, we can see no reason why the courts would depart from the current approach.

As I have said, a defendant who satisfies the first condition that the statement is one of opinion must also satisfy the second condition that the statement must indicate, whether in general or specific terms, the basis of the opinion. Amendment 4 would replace the word “basis” with the words “subject matter”. The provisions in the Bill reflect the test approved by the Supreme Court in Spiller v Joseph that,

“the comment must explicitly or implicitly indicate, at least in general terms, the facts on which it is based”.

We consider that the word “basis” more accurately captures the essence of that test.

I hope that, on that basis, not only will the noble Lord withdraw this amendment, but that when the noble and learned Lord, Lord Lloyd of Berwick, returns to these shores and reads Hansard, he will accept that he has had a good run for his money but that this is where the Government’s view is and where it will remain.

--- Later in debate ---

[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.

[Lord Browne of Ladyton]

My Lords, I have no amendment in this group but I wish to speak partly in support of Amendments 6 and 7. I am persuaded, I think, that Amendment 7 may bring more to the clarity of this legislation than Amendment 6. I also wish to express some concerns about Amendments 6 and 7, which require clarification. I hope that we will be able to get that clarification from the Minister and perhaps reflect during the rest of the process of this Bill on whether the total effect of Amendments 6 and 7 will be as is being argued.

I approach this from a slightly different perspective. My reading of the effect of these amendments is that they are designed to improve Clause 4, which I accept, but that they would remove the element of subjectivity in the test of whether the publication was in the public interest. The clause has been substantially amended and, in fact, it has been recast. That has been welcomed, particularly by the promoters of these amendments, as the noble Lord, Lord Taverne, made clear at the outset. This is a much improved clause but, as I understand it, the aim has been to move away from Reynolds but to reflect the case of Flood in the law.