Defamation Bill

Lord Lester of Herne Hill Excerpts

Wednesday 19th December 2012 Grand Committee

[Lord Lucas]

My Lords, I apologise to the Committee for arriving late for a group in which I have amendments, but I am not fussed about having missed Amendment 10A. These are only for discussion anyway. I am also delighted that the Minister is not a lawyer, no more than I. We are in very intimidating company, but I shall be comforted by the thought that I am at least talking on a sort of level with him.

I declare an interest in that I run the Good Schools Guide, and therefore the whole matter of opinion is central to my life. Knowing what is and is not opinion is something to which I have to give daily consideration when I am looking at the comments that people have posted on our website and the comments that we choose to make about schools. I am conscious that I do not get good, consistent legal guidance in this area.

When things are put as they are in subsection (2)—

“the statement complained of was a statement of opinion”—

there are clearly a lot of factual statements which I treat as if they are statements of opinion. If someone says in a restaurant review that the food was cold, that is a statement of fact but the courts are going to treat it as a statement of opinion. On the other hand, if I say about a school that my child was bullied, that is not a statement of opinion but a statement of fact. Yet they both appear in the same English construction as the statement which will be taken as a statement of opinion. Dividing the two for people who are going to practically use this legislation is something which they will find difficult and I have always found difficult; it has frequently cost me lawyers’ bills to decide. I would be comforted if the Government were to make some effort, since we have a Bill on the subject, to enable ordinary users of this legislation to have some certainty as to what is an opinion and what is not. I do not see anything in this clause that makes life easier for me.

The second thing that causes me particular concern is subsection (4)(a), where it seems that in this matter of opinion we introduce the question of a fact:

“The third condition is that an honest person could have held the opinion on the basis of … any fact which existed at the time”.

Even if we go back to the restaurant review, and I say in a review on a website that the food was cold, how can I establish that fact? I am being asked by subsection (4)(a) to say that there is a fact there. I have no way of establishing that fact. If the restaurant disputes that the food was cold, how will I argue that I am dealing with opinion? In my interpretation of subsection (4)(a) as a user of this legislation, rather than being given the freedom of expressing a reasonable opinion based on my experience of something, I am being called back to establish a fact in order to justify my defence that this is an opinion. I have to establish that I have this opinion based on facts. Therefore I have to establish the fact, and I cannot, so I am not entitled to an opinion. As a lay interpreter of the Bill, I find that a worrying clause. I would be grateful if the Minister could explain why I should not be worried about it.

[Lord Lester of Herne Hill]

My Lords, first, I am glad that the noble and learned Lord, Lord Lloyd of Berwick, referred to Lord Ackner. I remember when I was arguing a case called Pepper v Hart and the Attorney-General said, “Don’t pay any attention to what Ministers say at three in the morning, it is often rubbish”. Lord Ackner looked at him and said, “Mr Attorney, is the proposition that Ministers should think before they speak incompatible with good government?”.

The purpose of Clause 3 is to get rid of the uncertain common law and make sure that the problem that the noble Lord, Lord Lucas, has just raised will not arise again. It is curious that he should mention the example of the food critic, because what convinced me that we needed a Bill, and particularly Clause 3 of the Bill—which was invented by Heather Rogers QC, in my view the most knowledgeable and open-minded of all the QCs practising at the libel Bar—was a case that I did in Northern Ireland about a food critic. A restaurant called Goodfellas, which was probably funded by the IRA, was reviewed in the Irish News by Caroline Workman, the newspaper’s food review critic. The review was very rude about the quality of the food in the restaurant. However, counsel on both sides and the trial judge—and certainly the jury—confused facts and opinion. Caroline Workman was put in the witness box for three days and cross-examined on whether the food was, or was not, of the standard that she had put in the review. When I came in on appeal, I attempted, successfully, to repair the damage by persuading the Court of Appeal in Northern Ireland that if it is a food review, and everyone can see that it is about opinion, you need very few facts in order to justify the opinion. There are, for example, food or theatre reviews that just use stars, so that no stars means that it is terrible and five stars means that it is worth eating or seeing. It is defamatory to put no stars, or only one star, but it would be absurd for the reviewer to have to prove anything more than that they were there at the time; in other words, that it was not malicious. Leaving aside for the moment the point made by the noble and learned Lord, Lord Lloyd, the beauty of Clause 3, as it stands, is that it really does, for the first time, make the distinction between honest opinion and the defence of truth as good as I think one can get it.

However, I agree with everything that the noble and learned Lord, Lord Lloyd, has said about the Telnikoff case. I am not sure about the precise words of the amendment, but if the Minister were able to make a Pepper v Hart statement to indicate that whereas in subsection (8) we overrule the common law defence of fair comment—that we abolish it and start afresh—and that the intention in doing so is, among other things, to overrule the majority decision of the House of Lords in that case, then it might not be necessary for an amendment to proceed. One of the difficulties I have with the amendment is that although it singles out newspapers, there are of course other publishers as well—but that is a matter of boring technicality. I strongly support the spirit of that amendment and I hope that I have clarified why the noble Lord, Lord Lucas, can sleep easily tonight.

[Lord Browne of Ladyton]

My Lords, the Committee will be pleased to hear that—broadly for the reasons articulated so well by the noble Lord, Lord Lester of Herne Hill, about the purpose of the clause—I do not intend to speak for very long on Clause 3. Our Benches support the clause, although we recognise that in doing so we are not saying that it cannot be improved. If any of the amendments in this group can improve or assist the purpose of this clause, we will be happy to support them.

I regret to tell the noble Lord, Lord Lucas, that while his proposed amendments raise an interesting aspect in the discussion about the difference between facts and opinions, I have to say that I am inclined to agree with the view of the noble Lord, Lord Lester of Herne Hill, which is that the only fact that must be established in the example of a restaurant review is that you can prove that you have eaten in the place. I cannot support his amendments, although I will be interested to hear what the Minister has to say about the degree of certainty that one can have now when operating in the area of opinion, so that one can avail oneself of the defence offered by this clause in the future, as opposed to in the area of fact. However, I suspect that one would not want to raise that issue in a room full of lawyers because the position is unlikely to be clearer at the end of the discussion than it was at the beginning. It may be better just to leave it to ordinary people to decide whether or not they are dealing with opinion. It is the sort of thing that one knows when one sees it.

On the amendments spoken to by the noble Lord, Lord Phillips, I anticipate to a degree that the response will be that they are unnecessary. I hope that the Minister will be convincing in his explanation that they are, but the noble Lord has raised important issues around the adequacy of information that would allow people to take a view as to whether the opinions being expressed are supported by facts. If they are the reporting of other people’s opinions or statements, there has to be some information available to allow people, outwith court proceedings, to come to a view as to whether the opinions are justifiable in the circumstances of the facts that have informed them. The noble Lord has done the Committee a service by identifying this issue. I am not entirely sure that his amendments would improve the clause, but I shall leave it to the Minister to defend the drafting.

I turn to the very specific amendment tabled by the noble and learned Lord, Lord Lloyd of Berwick. We cannot say that we have not had notice that this amendment was likely to be brought forward because the noble and learned Lord raised this issue in a short contribution made on Second Reading, when he asked a series of very specific questions. My recollection is that he got a positive response from the Minister, who indicated that he agreed with his view. I thought that the noble and learned Lord explained the point compellingly in terms of the House of Lords’ decision in Telnikoff v Matusevitch, saying that it is not good law. However, I suspect that the noble and learned Lords who considered that decision did not think that it would be further appealed in the House of Lords some 20 years later. The question, of course, is whether the issue needs to be addressed. I think that the mood of the Committee suggests that this is not good law, but there is a question of whether it needs to be dealt with in the Bill or by the sort of device suggested by the noble Lord, Lord Lester of Herne Hill.

Members on these Benches will listen carefully to the Minister’s response and we will test that against how the noble and learned Lord, Lord Lloyd of Berwick, in turn responds to it. If we need to come back to this issue again, I think that the noble and learned Lord can rely on our continued support. This stain on the law of England should be removed at some stage by other processes.

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[Lord Ahmad of Wimbledon]

I hear what the noble Earl says. We shall return to this point in writing. If the noble and learned Lord wishes to return to this point, it can be debated more extensively at a later stage of the Bill.

[Lord Lester of Herne Hill]

We know that the common law is being overruled by this clause. As I understand the Minister’s reply, it is that, without saying that the majority opinion in Telnikoff has been overruled, this clause effectively no longer reflects that narrow view of the majority of the Law Lords. Is this right?

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[Lord Phillips of Sudbury]

My Lords, I am grateful to my noble friend and sympathise with his predicament. In the light of what he has said, and as we have an opportunity to discuss this at a further stage, I will not move Amendment 15 at this time.

[Lord Lester of Herne Hill]

I am sorry—I am always very bad on procedure.

Clause 4 is at the heart of the Bill. The Government have done an extremely good thing. Originally, like my Bill, and like the judgment in Reynolds of the noble and learned Lord, Lord Nicholls of Birkenhead, there was a checklist of factors. In practice, the checklist proved unworkable. It was a list of factors that could not be weighed one against another. As the noble Lord, Lord McNally, said, there was great opposition to it. The Joint Committee on Human Rights, on which I serve, expressed the conclusion in paragraph 15 that the checklist was inappropriate and that we needed instead a generic test. The Constitution Committee expressed the same conclusion in paper 86.

The inventor of Clause 3 was Heather Rogers QC. The inventor of Clause 4—as it is proposed that it should be amended—is neither me nor the Government but Sir Brian Neill. He is in hospital at the moment, otherwise he would be here, but he will be delighted to know what is happening today. It was he who asked why on earth judges would need a checklist of factors when one could produce a proper, objective test coupled with a reasonable belief. One can then leave it to judges to decide on a case by case basis whether there has been responsible publication. Whether there has been such publication requires the answer to two simple questions. At least, the questions are simply stated; they are not always simply answered.

The first is whether, objectively, the publication is about something of public interest. The second is whether there has been responsible publication—I do not say responsible journalism because this applies to everybody, not just the press—in that in newsgathering, editorial judgment and the rest of it there has been compliance with the professional standards appropriate to a newspaper or to other circumstances. That means that this is not a charter for irresponsible publication. For example, if a newspaper publishes something that is defamatory and untrue, it cannot be covered by Clause 2. If it is not just a matter of opinion, it cannot be covered by Clause 3. If it is not covered by statutory or common-law qualified privilege, it cannot be covered by that. It can be covered only by Clause 4—and it has to earn it because this is a privilege that is being given in the public interest. It is not a privilege because the newspaper or whatever should have a special right. It is a privilege because the public, through the eyes and ears on the media, are entitled to have information provided to them on matters of public interest.

This is a far better solution than the one I tried to persuade the Law Lords of when I did Reynolds, which was the New York Times v Sullivan approach in the United States. What came out of Reynolds was a compromise on the American position. The reason why the American position does not make much sense—with respect to the great court that decided New York Times v Sullivan—is that it focuses on the identity of the publisher and not the content of the publication. It asks: is the publisher a public figure? That is the wrong question. It does not matter whether the publisher is a public figure. What matters is whether it is in the public interest to publish what is in the publication. In the United States—I say this as someone who greatly admires the American legal system—not just, for example, a servant of the state but a basketball coach or a restaurant owner is defined as a public figure because they want to find a way to say rude things about restaurant owners. The beauty of Clause 4 is that we have now got rid of the checklists, we leave it to the courts which are well capable of considering matters on a case-by-case basis, and there is a generic formula. I pay great tribute to my noble friend Lord McNally, under whose leadership all this has become possible. We have had great arguments about this in the past few months and he has listened. What has been produced, thanks to Sir Brian Neill, does not need any further amendment. It is fine as it stands.

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[Lord Marks of Henley-on-Thames]

I am bound to say that I am worried about the way in which the amendment in the name of my noble friend Lord Phillips makes that suggestion. I appreciate that he does not intend to move it. It seems to me that one can do no better than require the court to look at all the circumstances of the case. As a matter of drafting, I am not entirely sure that the amendment in the names of the noble Lord, Lord Browne, and the noble Baroness, Lady Hayter, is necessary. It seems to me implicit that,

“all the circumstances of the case”,

have to be taken into account. That phrase is usually used in statute to say that all the circumstances of the case “included but not limited to”, and then it goes on to a checklist. We are not having the checklist so I am not sure that that requirement is necessary to be expressed.

My worry about the way in which my noble friend Lord Phillips—

[Lord Lester of Herne Hill]

I am catching a bad habit from sitting next to my noble friend Lord Phillips and interrupting but since he does not intend to move Amendment 15, is not the vice of his approach that he will seek to make the court into the editor?

[The Deputy Chairman of Committees]

Before we go on, perhaps I should remind the Grand Committee that we are discussing an amendment to a government amendment in the name of the noble Lord, Lord Phillips of Sudbury. It was called and therefore it will need to be withdrawn. Since it is in the same group, it does not particularly matter for the purposes of the debate. But that is the position.

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[Lord May of Oxford]

My Lords, I wish to speak to Amendment 22 but in a broader context, as I believe that it relates directly to some of what many people feel to be the unsatisfactory elements of the Bill in its present form and Clause 4 in particular. In saying that, I express my appreciation of the noble Lord, Lord McNally, and the Government generally for helpfully moving things forward in response to earlier worries. I much appreciated the noble Lord’s comments, particularly in connection with Clause 4.

The Government’s proposed amendment to Clause 4 is a big improvement. The proposal significantly to modify Clause 4, which in its original form was largely an unhelpful codification of existing law, has been widely welcomed by those campaigning for a public interest defence—some 60,000 people have been involved one way or another. They and many of those involved in the awful cases that have given rise to the broad campaign for reform have been unable effectively to use a defence that was designed for newspapers. It is too complex and usually hugely expensive. It is certainly not suited to what medical specialists say at a conference, to reports on consumer issues or to reports on human rights.

Given that the Government appear to have recognised this fundamental point, I believe that they should clarify things further by changing the wording of Amendment 21. It says:

“In determining whether it was reasonable for the defendant to believe that publishing the statement complained of was in the public interest, the court must make such allowance for editorial judgement as it considers appropriate”.

The phrase “editorial judgement” has the subtext of newspapers. That covers much of the matter, although not necessarily legalistically. It would be much clearer if it said, “such allowance for the publisher’s judgement as it considers appropriate”. I notice that, despite the many sensitive comments that the noble Lord, Lord McNally, has made, he was not minded to accept this amendment, but I will persist with it.

I want to go little more widely. This amendment addresses part of a more general problem, in that the Bill still seems to many readers to focus on newspapers, editors and corporations. We need to recognise that the central need that has provoked the entire issue of the revision of the Bill is for a well drafted protection of individuals acting in the public interest. It needs to correct the current internationally notorious and embarrassing situation which is being abused by those with deep pockets who travel to the UK with the specific aim of using our existing legislation and its whacking great costs to prevent individuals speaking out on issues of public interest, particularly in biomedical and other scientific contexts. I realise fully that this is only part of a larger problem.

[Lord Lester of Herne Hill]

I am grateful to the noble Lord. I am sorry, but Clause 4 in its present form and in its amended form could not be clearer. It does not apply only to newspapers and the media as it refers to:

“Responsible publication … for the defendant to show”.

That applies to me, to an NGO and to anyone at all. Criticisms of the law of libel in general are a different matter. On this specific point, I do not know who these people are who think that it does not apply to anyone but the media, but they are mistaken unless they cannot take the opportunity of reading the words themselves.

[Lord May of Oxford]

I realise that the situation is more complicated than I may have portrayed it. One of the more fascinating and charming things I have learnt in the course of these procedures is that if one is a member of the legal profession, one is not merely a noble Lord, but a noble and learned Lord. As an unlearned Lord, it does not seem that the bulk of the discussion has focused on what I understand to have been the moving issue here in the first place. In large part, it is a response to the Libel Reform Campaign which involves almost 100 organisations and, as I said a moment ago, some 60,000 supporters, including leading names from the sciences, the arts and public life. They have been calling for legislation to reform the libel laws since December 2009. The committee took that on board. I am not familiar with the committee because I was not a part of it, but it seems to have addressed the issue by and large in a sensible way and it has brought forward the Bill before us.

The Bill contains many welcome proposals—the single publication rule and some measures to reduce libel tourism, which is rarely referred to—but what it does not contain are measures to limit corporations’ use of the law in what I think are dodgy ways, or clear provisions for online hosts and intermediaries because it still assumes that publication means print rather than online. Until it provides a strong public interest offence, scientists, human rights groups, NGOs, consumer groups, authors and doctors will continue to be silenced by a piece of legal machinery that we should be more embarrassed about than we seem to be.

[Lord Lester of Herne Hill]

I am sorry, but if the Libel Reform Campaign has been briefing in that way, it is completely wrong, and it is time that it realised that it is completely wrong. As I have said before, the whole purpose of this defence is to protect NGOs, consumers and individuals, not only the media. So far as I am aware, the Libel Reform Campaign has not come up with anything better than the amendments to Clause 4, and I have been waiting for it to do so. Since I began to prepare my Bill, for a year I made quite sure that all the NGOs met me every month or so in order to reach a high common factor of agreement. The Libel Reform Campaign did a great job of publicising the need for reform but, with respect, it is not good enough for the campaign to make a root and branch statement of that kind without giving proper credit to all the ways in which this Bill dramatically and importantly reforms the law and creates a better balance between free speech and reputation. I have to say all of this because sometimes even NGOs need to be accountable.

[Viscount Colville of Culross]

I declare an interest as a journalist, producer and director at the BBC. I support Amendments 14, 16 and 21. In my Second Reading speech, I expressed concern about the chilling effects on free speech through the use of all 10 factors in the Reynolds defence as a checklist by lawyers trying to affect investigations both prior to publication and in destroying the public interest defence statement once something has been published.

In the letter sent to all Peers on 10 December, the Minister said that he was honouring his commitment given at the conclusion of Second Reading to look again at Clause 4. In the intervening period he has worked with the noble Lord, Lord Lester, and other distinguished libel lawyers to formulate a new wording for the clause. The wording they came up with to amend Clause 4 is very satisfactory and addresses my concerns.

Any amendment must not be a charter for reckless statements that hide behind the shield of a public interest defence. Amendment 14 contains the crucial words, “the defendant reasonably believed”, which replace, “acted responsibly”. Amendment 16 would drop the list of factors altogether. Some supporters of free speech fear that the words “reasonably believed” will allow the courts to work up yet another list of factors that can be used as criteria for what is reasonable. However, the amendment will allow serious journalists, NGOs and scientists who are reporting on matters that they consider to be in the public interest to use their own checklist of what is reasonable. I talked to my colleagues at the BBC who were preparing Monday’s “Panorama” programme on the Barclay brothers’ tax affairs, which had been months in preparation. They had dealt with multiple firms to get the programme on air. This would have been extremely helpful to them by bringing a very important public interest defence to a debate about tax avoidance by people who are extremely important in the affairs of our country. I am very grateful that the amendment has been brought forward.

As a journalist I do everything I can to check the veracity of claims that I intend to publish; to question at length the witnesses; to check out by any other means the truth of witnesses’ evidence; to find other supporting witnesses where possible; and to ask an individual, or an authoritative representative of an organisation being investigated, to reply. But sometimes, despite one’s best efforts, it is not possible to get a satisfactory reply from a person or an organisation being investigated. Very often that means one cannot publish. However, I am convinced that with this amendment I would be safeguarded by the Clause 4 defence when publishing a statement that would be in the public interest. I am very reassured by that.

I welcome Amendment 21, which further strengthens the hand of the author by making allowance for editorial judgment. It includes the words, “considers appropriate”, to ensure that the amendment is never used just for reckless statements. Not only will the amendment comply with the Flood decision that editorial judgment should be taken into account, but the many people who are worried by the quality of editorial judgments revealed in the report of Lord Justice Leveson will be reassured that the courts will have the final say on the nature of editorial judgments exercised in the publication of an article or statement. For far too long, responsible authors who want to publish in the public interest have been cowed by our libel laws. The people of this country have a right to be presented with matters of public interest so that they can have at least an informed choice in a debate on the subject. The amendments to Clause 4 tabled by the Government will boost democracy and accountability in this country. They are a great step forward.

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[Lord Triesman]

My Lords, I join noble Lords who have thanked the noble Lord, Lord McNally, for the way in which he has approached this and the kind of solution that may now be very close to fulfilment. To be candid, it is not a position that I thought likely to be one of the outcomes, but I can see a great deal of the sense of it. I can also see that it fulfils part of his aim that there should be greater clarity for people who need to use this law; that there be a better, more effective law; and that we should not end this process with the same lack of reputation in this general field from which we have perhaps suffered in the past.

I will draw several arguments about the heart of the Bill together in a moment. I understand the strength of the proposition that if judges are to decide, in the ways that they are capable of deciding, that would be better than providing an extensive checklist.

In his opening statement, the noble Lord, Lord McNally, said that he believed that the courts and the judges would have a mind to these kinds of things as they formulated their views. That is fine up to a point. The point where I think it needs a little more testing is that it would be helpful if, when the law is on the statute book, there was a sense both of what Parliament believed were critical issues and of what the Government had said in their responses were critical issues. This is not just a matter of what the legal opinions are; views are now widespread among the public of the United Kingdom about what it is or is not legitimate to do.

Let me turn directly to Amendment 14. A short while ago, the noble Lord, Lord Phillips of Sudbury, said that there may be a clearer enunciation of at least one part of it. I do not think that he was talking specifically about his amendment; I think that he was making a general proposition about clearer enunciation. Indeed, I do not know whether his amendment is now a matter of fact or opinion, as it may or may not have been withdrawn.

Let me look at the two words “public interest”. When somebody uses those words to me, I understand them to mean that there is an entitlement by the public to learn of matters that are of the public interest in a broad sense—knowledge of policy practice and the debates on all those matters, what might be wrongdoing, malpractice or malfeasance, many aspects of social and cultural life, scientific knowledge and other scholarly knowledge. There is probably a long list and my point is not to produce a checklist. That is what I broadly understand “public interest” to mean.

What has also become entirely clear over many years is that many of the editors of newspapers—and this was also clear in the evidence that they provided to Lord Justice Leveson—do not think that that is the whole of what is meant by “public interest”. They have a fundamentally different view of what public interest is. I am not thinking of the things that Lord Justice Leveson and others have said were criminal intrusions into the privacy of individuals. Those are covered by criminal law, which is more or less adequate, although that, too, is probably a matter of debate.

My point is that common practices in parts of the press and parts of the culture of the press mean that there is a view of what is in the public interest and that it means whatever those editors believe might interest the public, whatever it is. Consequently, they can libellously or otherwise intrude into aspects of private life—as I said, I am not going into the criminality of the means by which they obtain the information—so that, for example, if they have discovered by one route or another that someone has a medical condition that they are discussing with their mum, that becomes a matter of public interest in the sense that the public in a prurient way may be interested and that it will unquestionably sell more copies of a newspaper if it is in that newspaper. That is entirely unreasonable. In some cases, of course, that may just be a matter of intrusion of privacy, but it is clear that on occasions it could have a defamatory effect on the person who is being written about.

I am not in any sense content to believe that the simple words “public interest” will convey to Paul Dacre that he is not, as he seems to believe, the ultimate arbiter of anything and everything that we should consider to be in the public domain. That should not be the last word on this and we should not allow it to be. That applies, too, to the former News of the World journalists. I say to the noble Viscount, Lord Colville—

[Lord Lester of Herne Hill]

I wonder whether it is any comfort to the noble Lord, Lord Triesman, to know that the courts have made it quite clear that there is a significant difference between what is of interest to the public and what is in the public interest. The two are not the same.

[Lord Triesman]

My Lords, I am very grateful for the intervention because it will cut out my saying a great deal more. However, it would be helpful, in the same spirit as the noble Lord, Lord Phillips, intended when he said greater enunciation might be sensible, for the legislation that we are looking at to somehow indicate what that distinction is, so that somebody who does not study law as a matter of practice can pick it up, read it and understand exactly what is meant by it. I am very grateful for the intervention because that is precisely the point that I wanted to make.

Finally, I will say something about the list that is about to be removed. It goes back to the point that I was trying to make about Parliament and the Government giving at least some indication of the things that might concern them. I was intrigued by—and at one stage convinced of the importance of having in subsections (2)(d) and (2)(e)—the words that appear there. Even if the words do not finally appear in the Bill, it should be understood, under subsection (2)(e), that when somebody publishes information, the reliability of the information is capable of being subjected to some real test. I do not know whether that is another point that the argument of the noble Lord, Lord Lester, may have in part answered. However, what seems to be true is that there are often few demonstrations of the sanity or motives of those who have provided information that simply gets reproduced and, on occasions, is not withdrawn. I say to my noble friend Lady Bakewell and to the noble Viscount, Lord Colville, that not every journalist uses the standards that I am pleased to acknowledge that they plainly do. Not every journalist does that by a long chalk.

In those cases, knowing about the credibility of the information seems important. It is something that one would want Parliament to have expressed, even if it does not appear as a list in the Bill. Equally, in subsection (2)(f), although I am conscious that bad experiences should not be promoted into the making of law, it seems important that people about whom things are to be written should have at least some knowledge of them or some opportunity to say something about them before the event happens. If those were the ways in which interpretation of the law by judges were achieved, that would amount to great progress here. I conclude by stating that if judges do that, and if lawyers put arguments to the judges, my anxiety—which I guess I will just have to live with—is that we will not be talking about a cottage industry but rather a major multinational for the time being.

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[Lord Lester of Herne Hill]

Would it not be in favour of the amendment to look back at what Clause 4(2) looks like? In subsection (2), it says that the court may,

“have regard … (amongst other matters)”.

That goes, because of the way in which the amendments operate. Is the noble Lord saying more than, “The concept that the Government accept in the unamended subsection should somehow be reflected in the amended one”? It seems that what is being said represents the Government’s own view, as expressed in the unamended Bill, that the court may,

“have regard … (amongst other matters)”.

What is being said now is that that must be reflected in new wording. It therefore seems that the noble Lord may be too pessimistic in assuming that what he is proposing would not be accepted by the Government; I have no idea.

[Lord Browne of Ladyton]

I am grateful to the noble Lord for his intervention. Unlike a previous intervention that he made—which I thought had the distinct shape of a lifeboat being offered to someone who refused it—I am not going to reject his offer to keep my head above water. The oxygen of an intervention can quite often be helpful.

I am of course willing to discuss the mechanism for this further. I am conscious enough of the necessity sometimes not to insist on the form of words that I alight upon, allowing room for some manoeuvre. I would just make the argument on behalf of our Benches that it would be helpful to the general direction of the Bill, and on the effect that it will have on people’s behaviour, if we send a strong message in this clause that we are moving so far away from this checklist that we are prepared to countenance any relevant circumstances as being important to whether something is in the public interest or whether they reasonably believed it to be so. I am pleased that the Minister has used this form of words himself on more than one occasion, particularly when he was explaining the expectation of what the courts would do in applying this particular test.

I turn to the only other amendment apart from the Government’s three amendments, which I support. It has survived the contributions of those in whose names the amendments appeared under in the Marshalled List. It seeks to replace editorial judgment with the publisher’s judgment. I entirely understand, from the point of view of those at the sharp end, why they do not want to be hemmed in by something that is too closely associated with only one form of media. They are looking for a generic term that covers all the forms of publishing that now exist. Everyone involved in those forms now has responsibility for putting information into the public domain. I respect entirely the argument of the noble Lord, Lord May, on this.

I noted that in the Minister’s introductory remarks—I hope that he will find a few moments to reinforce this—he referred to the phrase “editorial discretion” as intending to give latitude to the judgment of how a story should be presented. From that I took the view that “editorial” is an adjective relating to an action rather than a job description. I think that it already covers all the different kinds of people who are, in legal terms, “publishers”. If that can be made crystal clear in an easily accessible way, the concerns that were properly expressed by those who think that perhaps this is too newspaper-oriented in its terminology can be dealt with.

I am grateful for the contributions of all noble Lords, and I hope that they will forgive me if I do not mention them individually. They have substantially enriched our debate, even if only two supported the amendment in my name and that of my noble friend. I am grateful in particular for the support of the noble Lord, Lord Mawhinney, because he comes at this with a view that is born out of his intense relationship with the issue over a concentrated period as chair of the Joint Committee. He speaks with authority, so when I get support from that quarter, I value it. The same gratitude applies to my noble friend Lady Bakewell for her support. She speaks for many people who have to make these decisions without constantly having lawyers by their side, and sometimes in comparatively difficult circumstances. I am grateful to her for saying that my amendment would be of assistance to them.

I have little to add and I will not go into the detail, but on the point made by my noble friend about the definition of “public interest”, I would draw the attention of the Committee to the Guidelines for Prosecutors on Assessing the Public Interest in Cases Affecting the Media, which is published by the Director of Public Prosecutions. Paragraph 31 on page 9 gives a set of examples of conduct that is capable of serving the public interest. It is designed to instruct prosecutors on how they should approach decisions that affect the media, particularly on the question of whether a prosecution is required in the public interest. These considerations are helpful because they clearly show the distinction between what the public are interested in and what is in the public interest. At some stage when we come to consider guidelines or government expressions of what they think they have achieved with this legislation, drawing on that sort of information will be helpful when addressing the issue identified by my noble friend Lord Triesman. It is a serious and important point in the challenge of finding a balance.

[Lord Lester of Herne Hill]

Not only do I agree but I wonder whether the following might meet that need. The Explanatory Notes on the Equality Act are the best example that I have ever seen. They are particularly good because they give illustrative examples of the application of particular clauses. As I understand it, it is now good practice when a Bill has completed its stages for the Explanatory Notes to be revised in the light of the debates, so that the courts and public have an authoritative guide. The Explanatory Notes to this Bill are accurate but not in any way verbose; they are sufficient to provide that kind of guidance. It might be worth thinking about ways of including such examples in the Explanatory Notes. I know that they are not the kind of things that normally one reads on the train, but it might be one way of encouraging public understanding. I am sorry to have interrupted the noble Lord, but it occurred to me that that might be a way forward.

[Lord Browne of Ladyton]

I am very pleased to have given the noble Lord an opportunity to make a very good and common-sense suggestion that I am sure the Government will take on board. They have taken on board quite a lot of what he has suggested in relation to this particular area of the law. In general, I agree that Explanatory Notes should not be set in stone at the point of publication of a Bill and not revisited, because Bills are often changed substantially during their passage through Parliament. It would be helpful to have revised Explanatory Notes. I agree with the noble Lord that sometimes the Explanatory Notes do not take one very much further forward than the Bill itself. This Bill has been significantly changed and the notes could do with some revision.

I will just point out that as a Scottish lawyer there is no conceit on my part about the state of Scots law. Clauses 6, 7, 15, 16 and 17 of the Bill extend to Scotland. When we reach a discussion of something that is directly relevant to Scotland, I will express my regret that there does not seem to be any parallel movement on the part of the Scottish Government to find time in their Parliament to bring the law up to the improved state that it will be in down here when the Bill becomes law.

--- Later in debate ---

Moved by

[Lord Lester of Herne Hill]

18: Clause 4, page 3, line 8, leave out subsections (3) and (4)

[Lord Lester of Herne Hill]

My Lords, I am sorry that the Minister has put me in the position of Scrooge by suggesting that his officials should waste their time over Christmas amending the Explanatory Notes. They can do that over Easter when, it is hoped, the Bill will have received Royal Assent.

I am going to suggest something which I hope will go down well with my noble friend Lord McNally and with the Committee. I suggest that we should simplify what at the moment is completely unnecessary and should be deleted from the Bill. It concerns reportage and what should happen when a publisher publishes a report fairly and accurately. My original Bill, which I do not have with me, dealt with reportage, and subsections (3) and (4) explain how the Government see the position. We now have government Amendment 19 in this group, which is a new version of reportage. However, I have to say that it is completely unnecessary because now that Clause 4 is in a very satisfactory form, I do not think that we need to include anything at all about reportage.

Let us look forward to Amendment 19, which has not yet been moved. It is not something that the man or woman on the Glasgow omnibus would understand. It states:

“If the statement complained of was, or formed part of, an accurate and impartial account of a dispute to which the claimant was a party,”—

The noble Lord, Lord Browne, does not like the words “to which the claimant was a party”, and I do not much like them myself—

“the court must in determining whether it was reasonable for the defendant to believe that publishing the statement was in the public interest disregard any omission”—

that is something of a double negative—

“of the defendant to take steps to verify the truth of the imputation conveyed by it”.

With great affection and respect for parliamentary counsel, I have to say that I find it very hard to understand what is being said here. While I think I understand it, I do not see why it is needed at all. A proper public interest defence, as we now have in Clause 4, covers all publications, including reportage. We could go into the tricky thing about whether it should or should not cover someone who is not a party to a dispute, but I suggest that we should consider that hereafter—I say that not just because I have had no lunch. I do not see the necessity of including anything special on reportage, given the clarity with which the Clause 4 defence is now worded. I seek, therefore, to leave out subsections (3) and (4) and I would oppose putting anything like Amendment 19 in their place. I would certainly regard it as unnecessary to consider an amendment to widen this further. Rather idiotically, I think I have just said the opposite of what I wanted to say. I suggest that we leave out subsections (3) and (4) because they are not necessary and that we do not put anything in their place. I beg to move.

[Lord Browne of Ladyton]

I shall speak to Amendment 20, tabled in my name and that of my noble friend Lady Hayter, simply because I have no idea where these particular words came from. They qualify the dispute that has been reported as being one to which the claimant had to be a party. Shortly I will explain why that is, but having listened to the noble Lord, Lord Lester of Herne Hill—I wish that I had added my name as well to his amendment—on reflection I really do not understand why these two subsections were included in Clause 4 in the first place. I have no particular objection to the attempt in the government amendment to concentrate them into one subsection, although the language is cumbersome. However, I would never underestimate the ability of the ordinary man on the Glasgow bus to understand verbiage.

I do not understand why these subsections were included in the Bill in the first place and I cannot find any debate about it other than that the initial attempt was a codification of the existing law. As I understand it, this element or refinement of the defence about reportage came from a case called Al-Faghi v a Saudi newspaper, or something. Essentially, this offers the opportunity of a qualified privilege defence to the reporting of a dispute, when it is the reporting of the dispute that is the issue of public interest rather than the truth of the allegations that may have been made between the parties to the dispute.

I will not detain the Committee by going through the distillation of the principles on which I have worked from the Al-Faghi case to see where the idea came from that the dispute had to be one to which the claimant was a party before it attracted this qualified privilege. I am pretty certain that the Minister will not be able to find in Al-Faghi a principle that requires that the dispute that is being reported be a dispute to which the claimant was a party. I can think of circumstances where the claimant could be defamed by statements made in a dispute to which he or she, the claimant, was not a party but where the reporting of that dispute could be in the public interest. So it seems unnecessary to qualify this defence, or subset of the defence, if it is to continue to exist, by requiring it to arise out of a dispute to which the claimant was a party. That is my argument. I see from his body language that the noble Lord, Lord Lester, is about to make another helpful intervention.

[Lord Lester of Herne Hill]

It might be helpful to the Minister as well, because I did a pretty sloppy job just now in my desire to be quick. Under existing case law, it is true that the claimant has generally been involved in the dispute reported, either through being personally and directly involved as a party or through membership of a faction or group that is a party. But the principles are applicable when, especially in a political context, both sides of a dispute are being reported. According to Lord Justice Sedley, in a case called Charman v Orion, from 2008, 1 All ER 750, there is no need for reciprocal allegations. There can be a reportage defence for what he called a unilateral libel. He said that the reportage defence,

“developed in Al-Faghi”—

to which the noble Lord, Lord Browne, referred—

“cannot logically be confined to the reporting of reciprocal allegations. A unilateral libel, reported disinterestedly, will be equally protected”.

That is, I think, in the amendment of the noble Lord, Lord Browne. There is no express statement in case law that the claimant must be a party to a dispute, and it would be unfortunate if the new statutory effects were more restrictive than the common-law position. That is why all of this is present. As the noble Lord, Lord Browne, said, it is not to undermine something in the common law. The problem is that the common law is pretty uncertain. It seems to me that we can do away with all this by not having subsections there at all. I hope that that helps. The new subsection has the potential to cause confusion in the light of the rest of the clause by stating that,

“the court must disregard any omission of the defendant to take steps to verify the truth of the imputation”.

The reference to taking steps to verify is there because the checklist in the current version of Clause 4(2)(g), provides, as one of the factors,

“whether the defendant took any other steps to verify the truth”.

If subsection (2)(g) goes, there is no need to provide for the court to disregard that, and any reference to taking steps to verify in subsection (3) would be confusing. I am sorry to go through all this but I think that in the interests of simplifying the law we can get rid of it altogether.

--- Later in debate ---

[Lord McNally]

My Lords, when both the noble Lord, Lord Browne, and the noble Lord, Lord Lester, tell me that we are getting this matter wrong, I have to think very hard. However, I shall respond to it and then provide some further thoughts.

Amendment 19 is a government amendment and is grouped with Amendments 18 and 20, as we have heard. Amendment 19 makes drafting changes to bring the provisions on reportage, which were previously in subsections (3) and (4) of the clause, into one subsection in order to improve the overall clarity of the clause. It makes changes to refer to the test of “reasonable belief”, to which I spoke in the previous group of amendments.

“Reportage” has been described by the courts as,

“a convenient word to describe the neutral reporting of attributed allegations rather than their adoption by the newspaper”.

Clause 4 is intended to catch the core elements of reportage as articulated by the courts. These are that where the defendant publishes an accurate and impartial account of a dispute between two or more parties, the defendant does not need to have verified the information reported before publication. This would not, however, absolve the defendant from the need to satisfy the court that, in all the other circumstances of the case, it was reasonable to believe that the publication was in the public interest.

Amendment 18 would remove the provisions relating to reportage. Conversely, Amendment 20 would extend their application. We do not consider that removal of the reportage provision altogether would be desirable, as is proposed by my noble friend Lord Lester in his amendment. As I indicated in speaking to Amendment 14 in the previous group of amendments, for the operation of Clause 4 generally, in assessing the reasonableness of the defendant’s belief that publication was in the public interest, the court will be looking at the conduct of the publisher. Often that will include examination of the steps the publisher took to verify the information. We would not want the clause’s silence on the matter to suggest that there may in future be a need to verify in reportage cases whereas now there is not.

However, nor do the Government think it right to extend reportage more widely, as is proposed by the noble Lord, Lord Browne, in Amendment 20. We consider that it should, as now, be limited to circumstances where the claimant is a party to the dispute. The reason that we adopted this approach is because if the claimant is a party, for the account to be “accurate and impartial”, his side of the story would be likely to have been reflected in the published article. On the other hand, where the claimant is not a party, that would not necessarily be the case. We believe, on balance, that where the claimant is a third party, the defendant should have to satisfy the court that in all the circumstances of the case it was reasonable to believe that publication was in the public interest. This should properly include consideration of steps taken to verify, should the court decide that is relevant. That point was made latterly by my noble friend. On this basis I hope that the noble Lord will be prepared to withdraw his amendment.

I am not sure which noble Lords made the accusations that the amendment will cause confusion, is unnecessary because the common law is already developing or overly restrictive, but I shall look at those criticisms. I hope that my noble friend will withdraw his amendment and that he and the noble Lord will allow the government amendment to stand. I will look very carefully at this amendment, and the points that have been made. I give an assurance that I will take another look between now and Report.

[Lord Lester of Herne Hill]

My Lords, I am grateful to the Minister for his explanation. The criteria in Clause 4, as it now stands, are objective public interest and reasonable belief, and I simply do not understand why those criteria are not sufficient to deal with reportage publication, as with any other publication. I am not clear as to what we are trying to save by putting these words in and I quite understand the point of view of the noble Lord, Lord Browne, which does accord with developing common law. All of this is unnecessary and I enthusiastically withdraw my amendment, knowing that all this will be thought about during the Christmas holiday of the noble Lord, Lord McNally.

Amendment 18 withdrawn.