Lord Lester of Herne Hill
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Defamation Bill
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Lord Lester of Herne Hill
I was not going to speak until I heard the noble Lord, Lord May, just now. He is identifying one of the main problems that the Bill is designed to tackle—it arises in the other parts of the Bill—on the way one approaches the defence of truth, honest opinion and privilege. The Bill seeks to take care of all of those. The cost matters are being dealt with separately and are very important.
All we are concerned with here is the initial hurdle to get rid of the trivial cases. We must not set the hurdle too high, because that would be unfair to claimants; nor too low, because that would be unfair to publishers. My own view is that one word in the English language is better than three. For that reason, I hope that the Government will stick to “serious” rather than giving the judges the headache of deciding how “serious” differs from “substantial”. They are perfectly capable, it seems to me, of interpreting an ordinary word in the English language. In that respect, I agree with my noble friend Lord Faulks.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, I shall begin with my usual disclaimer. I am not a lawyer. As I often say about my friends in this House who are lawyers, we are in their debt because if we had to pay them we could not afford them. We get the benefit of considerable legal expertise. The only problem is that it does not always point in the same direction. Nevertheless, it is welcome—as is the approach of the various groups that have become involved in this Bill. I pay tribute to my colleague and noble friend Lord Lester, who launched us on this path with his Private Member’s Bill, and the noble Lord, Lord Mawhinney, and his group, who in the pre-legislative scrutiny committee were extremely thorough. I also pay tribute to the Opposition, who played a very constructive role, and the various lobby groups that have come in. As has been said, it is a task of achieving balance.
I am grateful for the comments made about my own attitude. I take the view, particularly on this Bill, of President Harry Truman, who when asked whether the Marshall plan should be called the Marshall plan or the Truman plan said that it should be called the Marshall plan, as it is amazing how far you will get if you share a little of the credit.
I want to share the credit because my sole aim and intention in taking this Bill through is to leave us with a piece of useful legislation which will address some of the problems to which the noble Lord, Lord May of Oxford, has just referred of us having an unwelcome reputation for libel tourism, and to address some of the unfairness of costs.
As my noble friend Lord Lester indicated, we will be returning to this matter but I draw the Committee’s attention to my letter of 10 October, which is in the Library of the House and informs noble Lords that we were referring the matter of costs to the Civil Justice Council, an independent advisory body chaired by the Master of the Rolls, to advise us on this matter by the end of March 2013. As Members of the Committee may have noticed, the Government have subsequently announced that they have accepted Lord Justice Leveson’s recommendation that cost protection should be extended to defamation and privacy cases. Therefore, one of the matters which has been commented on most often, costs, is being addressed as this Bill moves forward. Whether we get the balance right is a matter for—
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 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.
Baroness Bakewell
My Lords, my contribution to this debate will be anecdotal. I am a lay person. I am not a very experienced parliamentarian. I am a journalist. Even as we were debating the Second Reading of this Bill, events were engulfing the BBC in the most significant scandal of recent years, involving all the very issues that concern us here.
Early in October, a programme on ITV disclosed that Jimmy Savile had been abusing young girls for over 40 years in his television career. He had died in October 2011 and within two months BBC “Newsnight” was embarked on a programme disclosing these allegations. That programme was dropped and never transmitted for reasons that are even now the subject of two BBC inquiries; one conducted by Nick Pollard and one under Dame Janet Smith. Everyone must agree that it would have been in the public interest if the activities of this man could have been brought to light much earlier in his career without having to wait for his death.
Disasters continue to pile up at the BBC. On 2 November, “Newsnight” broadcast a report of abuse at a children’s home, in which the claims of one of the victims led to widespread dissemination of false allegations against Lord McAlpine. These allegations against an individual, who was not named by the BBC, proliferated fast and far on social networks, with individuals simply retweeting on their own sites to their many followers, who did the same. Five days later, the Guardian named Lord McAlpine as the subject of mistaken identity. Numerous law cases have ensued. The wider public has been excited by all these goings on and confused about what is and is not allowed in law. Lord McAlpine has gone to law, and substantial costs are being awarded to him in cases of defamation, but we still have a case in which several hundred girls who were abused over a period of 50 years have not been able to get redress. I cannot address the detail of this Bill, but I know that the public must be allowed to bring to law those who have caused damage and pain. Journalists and people who report in good faith what they know or believe must be allowed to do so.
Lord Lester of Herne Hill
I do not know whether my noble friend Lord Hunt knows the history of this interesting idea. In 1990, when the noble and learned Lord, Lord Mackay, was Lord Chancellor, he issued a consultation paper, and it was announced on 14 May 1991 that he had decided not to recommend any change in the law. In 1948, Lord Porter’s committee came to the same conclusion, but the majority in the Faulks report—the chairman was the uncle of my noble friend Lord Faulks—came to a different conclusion, with Kimber and Rubinstein dissenting. It came to the same conclusion that the law should not be extended in this way. Sir Brian Neill’s committee looked at it much more extensively than any previous committee and it reported in July 1991. The standard textbook—Gatley—refers to that and to the way it looked at it so thoroughly. Of course, Sir Brian Neill has been invaluable on this Bill because he was one of the expert advisers, just as he was on the Bill on defamation proposed by the noble and learned Lord, Lord Mackay, in 1996. I thought it might be useful to the Committee to recall what the Neill committee stated in July 1991.
“In any event, we have come to the conclusion that the hurdles in the way of doing justice, in any of these circumstances, would be so formidable that there should be no change in the law. The difficulties, of course, primarily relate to establishing liability. The defendants would be placed at a very serious disadvantage for the reasons outlined above, principally though being deprived of the right, in relation to the alleged ‘victim’, to interrogate, to obtain admissions, to obtain discovery of documents and to cross-examine.
There might also be substantial difficulties for those suing to protect his reputation, but that in itself weights less heavily with us since they (unlike the hapless defendants) would have chosen to put themselves in that predicament. Nevertheless, we bear in mind that it is not only their interests which could be affected since difficulties in prosecuting the suit”—
that is after death, of course—
“could adversely affect the best interests of the deceased person whose reputation they would claim to be projecting.
Perhaps the most poignant example would be that where the defendants have chosen to pleased justification or fair comment. Not infrequently such a please will involve charges of grave misconduct against the plaintiff. When the subject of the libel is dead, however, there would be infinite possibilities for injustice. His reputation would be put in jeopardy not only without his consent but also without an opportunity to answer as he might have wished during this lifetime”—
as it were, Jimmy Savile. It continues:
“In our view it would be as repugnant to permit such an exercise as to allow criminal proceedings to survive beyond the death of the accused”.
It goes on:
“The majority of the Faulks Committee drew a distinction between the situation where proceedings have been commenced prior to death and that where they have not, such that in the former case the representatives would be able after death to pursue both general and special damages. In the latter case, however, only a claim for economic loss would be permitted”.
I hope the noble Lord, Lord Faulks, will not be upset by this.
“We cannot see the logic of this. It is just as difficult to pursue a claim for general damages after death, whether proceedings have been started beforehand or not. One argument put forward was that the wrongdoer should not escape having to pay general damages if the victim had formulated his claim. We do not understand why the mere formulation of a claim should change the parties’ rights and liabilities.
More importantly, since the difficulties inherent in this kind of exercise relate primarily to liability, the injustice would accrue whether the claim was limited to special damages or not. Even, however, where only damages were in issue, there could still be significant injustice in relation to quantification through the defendants being deprived of the opportunities normally open to litigants, namely with regard to interrogation, discovery and cross-examination.
We agree with the recommendation contained in … the Report of the Porter Committee … and with the minority report … of the Faulks Committee, written by Messrs Kimber and Rubinstein. We are of the opinion that no change is required to the present law, whether to enable proceeding to be brought, or to enable them to be continued, after the death of a person who is alleged to have been defamed”.
I do not apologise for reading that in because it is quite hard to get hold of the report of the Supreme Court Procedure Committee. I thought it right to do that.
Finally, I would say to the Watsons’ tragic example—and to my noble friend—that hard cases make bad law. For the reasons that Sir Brian Neill’s committee and others have said, this would make bad law.
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 Lester of Herne Hill
I am not sure whether the noble Lord has followed what the Minister was saying. The Government have asked the Master of the Rolls, Lord Dyson, to look at matters of procedure and to report as soon as possible. He has agreed to do so, so those matters are not in the Bill but are in the procedural forms that will accompany it. That is why they are matters for the judiciary to deal with, and so far as I am aware, they are going to deal with them as soon as they can.
Lord Mawhinney
As always, I am grateful to the noble Lord for his interjections. Let me cheer him up by assuring him that I was aware of that even before my noble friend said as much a little while ago. In fact, I remember being told that when we were holding our hearings. However, let me be plain about my difficulty here. This subject has been kicked into the long grass many times over the past 50 years, something my noble friend Lord Lester well knows because his was one of the balls that got kicked there. He is asking the Committee yet again to accept on faith a promise made by a Government Minister that there will be heaven tomorrow, but it falls just a little short. The truth is that while we will all await with interest what the judiciary decides would be an appropriate set of changes, if any, it is perfectly legitimate for Members of your Lordships’ House to ask the Government, “What changes do you think need to be made and what are you going to do about it?”. In essence, that is the question which lies behind the amendment, although it is in the framework for corporations.
While I am on my feet, perhaps I may say that so far as Amendment 8 is concerned, I thank the noble Lord, Lord Browne of Ladyton, and the noble Baroness, Lady Hayter of Kentish Town. It is extremely close to the wording used in our report, and in that I suspect that I am looking at the hand of the noble Baroness, Lady Hayter. I thank her for valuing it. I beg to move.
Lord Faulks
My Lords, I support these amendments and what the noble Lord, Lord Triesman, said. He is quite right about the position of claimants. A number of times, I have done my best to dissuade any claimant suing any newspaper for the reasons that he gives.
It ought to be remembered that companies which feel that they have been wronged have a battery of remedies available to them, such as passing off or the tort that has very often been used: conspiracy. It was used particularly by Tiny Rowland in his battle because it meant that he did not have to go into the witness box, give evidence and then be cross-examined.
The law is familiar with the requirement of having to prove what is known as special damage in the context of slander, so there is nothing unusual about a particular hurdle being put in the way of corporations, as these amendments suggest. For the reasons given, including the potential for bullying, I entirely endorse them. However, I have one slight reservation in that there are corporations and corporations. Small companies that effectively comprise an individual or a series of individuals may have their reputation damaged. I am concerned that the hurdle should not prevent them suing when real damage is done to them.
The noble Baroness, Lady Hayter, rightly referred to the conclusion of the Joint Committee on Human Rights, of which I have the privilege to be a member, where we suggested that businesses should succeed in defamation proceedings only,
“where they can prove actual damage”.
She left out the last sentence, which states:
“This requirement should be relative to the nature, size and scope of the claimant business or organisation”.
That is an important qualification. I hope and trust that this hurdle would be interpreted by the courts in a way that is relative to the size of the company involved: that is, according to whether McDonald’s, Google or a relatively small company was being dealt with. Subject to that, I entirely support these amendments.
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 May of Oxford
I am wholly in favour of these two amendments. I want to raise one question that probably illustrates one of my many areas of ignorance. I worry a little bit that saying a statement is not defamatory unless it has caused substantial financial loss will run up against classic examples of where a large organisation, like a corporation, has used costs to silence someone, but there are many examples of where people have persisted in their criticism. If anyone who is interested in these case horror stories e-mails me, I can send them a list of a dozen different illustrative stories. Despite costs of £500,000 or £1.5 million, and the loss of time to the person involved, the better cases, such as those involving an unsafe medical device or people in South Africa being told that they should buy a particular person’s vitamin pills and that AIDS medicines are ineffective, have been effective and have inflicted serious loss on companies that should have been put out of business.
That brings us back to our very first issue. In most of these cases, a good judge, with two or three experts, could have settled the matter in half an hour. Whether AIDS drugs or vitamin pills are effective is beyond dispute; yet it took 17 months and £500,000 to settle it. I suspect that I am, in some sense, out of order by raising this, but there is a slight overtone that causing substantial damage gives you a reason to start suing someone. I think that we need to go right back to our first discussion about having to ask whether the damage was based on an accurate description of untruths or unknowing or knowing faults and lies in what was being marketed.
Lord Lester of Herne Hill
Most of what the Minister has said is extremely persuasive, and certainly his criticism of Amendment 8, to which I have added my name, is understandable. With reference to Amendment 4, which is much less detailed, if, instead of just saying,
“unless its publication has caused substantial financial loss”,
it said, “has caused or is likely to cause substantial financial loss”, whereby the proposed new clause would read,
“The Statement is not defamatory”,
and so on, that would do little more than restate the existing common law. Would the noble Lord and his team consider something that would set out in the Bill the actual common law position without debarring corporations or creating new hurdles for them?
Lord McNally
Once again I shall use my ultimate defence: I am not a lawyer, so I am not going to say yes on the hoof. I also wonder whether the words “substantial financial loss” covers reputation, as was referred to by my noble friend Lord Phillips. However, as I have said throughout our debate, I am listening. When I go back to the Ministry of Justice, I will certainly sit down with my officials and talk about the points that have been made and ask whether any of them can substantially help what is still my objective, which is to deal with the real problems such as those that have been set out by the noble Lord, Lord May, and other noble Lords. These represent evidence of how, on the one hand, corporations can bully, intimidate and chill, while, on the other, they may have reputations that can and should be defended. That is the balance that we seek to strike. I will look at what my noble friend has suggested, and I look to my noble friend Lord Mawhinney to retain his scepticism, but to withdraw his amendment.
The Deputy Chairman of Committees (Lord Geddes)
Somewhat unusually, the noble Lord begged to move his amendment at the beginning rather than the end of his words. However, I am prepared to take it that he does wish to move his amendment.
Lord Lester of Herne Hill
My Lords, it is true that my Bill had a similar provision in it, but it did not have a serious harm test. The big difference is that the Government’s Bill now has Clause 1. Therefore, one of the problems with the amendment is that it does not take account of the shift from my Bill, without a serious harm test, to what we now have. The second problem is that there is a right of access to justice guaranteed by Article 6 of the European Convention on Human Rights, and therefore we have to be extremely careful that we do not fetter that right with an excessive strike-out power. Probably that is not the most significant problem because the third problem concerns EU law and the Lugano convention. If noble Lords look at Clause 9, they will see that there is complicated stuff about:
“Action against a person not domiciled in the UK or a Member State etc”.
One of the problems—luckily I do not have to deal with this because the Minister will have behind him a whole battery of those who can—is that under EU law, one has to make sure that there is access to justice in this country in the defamation field, and that is because of a case of Shevill. As a result of that case, the European Court of Justice has made it clear that one must be able to bring one’s cause of action in defamation here in respect of a tort that has been committed elsewhere within the EU. Without making too much of a meal of it, I do not think the way that this is worded would pass muster under the Shevill test, and in any case it is not necessary because of the substantial serious harm test coupled with proper case management. Finally, the idea of the county court is something that I have always espoused. I do not think that needs much on the face of the Bill, but that is for another day.
Lord Mawhinney
I shall read out a short excerpt from our report. Paragraph 87 states:
“Once our proposals for clarifying and simplifying the law are implemented, with jury trials in libel cases a rarity, and streamlined procedures that encourage early resolution, we see no reason why many smaller defamation cases should not be heard in county courts … with some appropriate training, we see no reason why there could not be a county court judge designated to hear defamation cases in most major county court centres in the regions”.
Lord Lester of Herne Hill
My Lords, I declare an ancient professional interest. I was counsel in the Derbyshire case from beginning to end. I think that I should explain some of the background, which I hope will not bore the non-lawyers more than the lawyers. In the New York Times and Sullivan case in the United States, the problem was that a police officer brought libel proceedings against the NAACP. The Supreme Court of the United States, in a landmark case, decided that where a public figure was the alleged victim of a libel, he could sue only if he showed bad faith or a reckless disregard of truth.
In the Derbyshire case, Derbyshire County Council, rather than Mr Bookbinder, decided to bring libel proceedings to protect what it called its governing reputation. I argued that the Sullivan rule should apply in English law. I failed—and I failed for a very good reason, which is that American law, illogically, looks at the identity of the claimant rather than the subject matter of the libel claim. When the case reached the House of Lords, however, that great Scottish judge— I repeat for the benefit of the noble Lord, Lord Browne—that great Scottish judge, Lord Keith of Kinkel, said that you do not need the European Convention on Human Rights to win this case. The common law matches Article 10 of the Convention, and Derbyshire County Council should not be permitted to seek to vindicate its governing reputation by using libel law and instead can go by way of malicious falsehood. In other words, rather like the United States, it could proceed if it proved bad faith or reckless disregard of truth.
That is the law as it stood and as it has stood ever since. Subsequently there have been some cases where for example a political party has been held to fall within this rule on a case-by-case basis. When the Human Rights Act came into force it could have listed, as does the Freedom of Information Act, hundreds of public authorities that would be subject to the Act. Instead it adopted a different test from this amendment—namely, whether the body was performing functions—even though it was a private body—of a public nature. Tomorrow the Commission on a Bill of Rights which my noble friend Lord Faulks, and I are both on, will be reporting about that definition and what has happened to it.
The argument in favour of an amendment of this kind would be that it would somehow clarify the law. I put my name to it because of my interest in the subject matter. Unfortunately, I do not think it does clarify the law because it does not use the same kind of test of what is a public authority or a private body performing public functions. It uses a different test. The argument, I suppose, against this approach is that it is better to leave it to the judges to do this on a case-by-case basis. I myself am attracted to the idea of including something of this kind. I did not put it in my own Bill—I did not think about it at the time. I failed to persuade the Government to put it in their draft Bill, but there was a consultation on it. I am bound to have to say that there was little enthusiasm in the consultation for doing this. So, although I put my name to it, I have some hesitation to the way it is worded.
This is a very important constitutional question. What we are really saying is that a public authority or a body exercising functions of a public nature should have to go through malicious falsehood and prove malice or recklessness.
We would also go on to say that, of course, the individual councillors or public officers could themselves still sue and therefore that we would not be doing any injustice to public bodies in doing this.
I have taken too long to explain all of that, but it is important that one understands the full context of this. I am sure that this is a matter on which the luckless Minister will have to reflect further.
Lord Lucas
My Lords, if this amendment was passed, it would make my life notably more comfortable, but none the less I do not think it should be. In my business of running The Good Schools Guide, I spend a lot of time being uncomfortable to schools and we have on regular occasions in the past 27 years been threatened more or less successfully with legal action for defamation. That seems reasonable. I do not see why schools should not react to what I say because what I allow to be published can have a considerable effect, not just on independent schools, which obviously rely on parents paying fees, but on state schools as well. That is because if children are discouraged from going to a particular state school, that school will suffer.
There are many occasions when parents say things about schools which are entirely unjustified and it is therefore proper that I or anyone else in my position should be careful of what we say and the basis on which something is said. We must ensure that we can reasonably believe that there is some truth behind what is being said. Although I agree that one should be uninhibited in one’s attacks on political parties and government generally, as you move away from them, you reach institutions that are smaller and more personal. An unjustified attack could have a very damaging effect, and so the law of defamation probably should apply. I would much rather see defences against the right to protest against bad public services as part of Clause 4; indeed, I think that Clause 4 could be made more specific so that it is clear that raucous views about public services are to be encouraged and given a wide latitude by the courts. Only under exceptional circumstances should those views be stamped upon. That puts the rights of the public in the context where they belong in this Bill, but to have a blanket prohibition would make schools and universities vulnerable to unjustified attacks. There has to be some form of protection against the most vitriolic.