Defamation Bill

Lord Marks of Henley-on-Thames Excerpts

Wednesday 19th December 2012 Grand Committee

[Lord Mawhinney]

My Lords, the Joint Committee’s report was published 14 months ago. It is a fairly accurate account of the months of work it put in to produce that report. This is one of the instances where 14 months has assumed considerable significance. I will be truthful, as noble Lords would expect me to be, but I have not had time to go back, prior to this Committee stage, and read all the evidence that was given to us. However, my memory is that by and large we concentrated on the list because the list already existed. We listened to evidence from people who wanted to tweak the list. My recollection is that there was no discussion of a slightly more radical solution—or, if there was, it was of a passing, almost ephemeral nature. However, I do not believe that such a discussion actually happened. Given that three other members of that committee are present, they can correct me if my memory is in error.

I pay tribute to the noble and learned Lord, Lord Morris of Aberavon, who is a distinguished member of the committee. He took upon himself the role of reminding us that if we wanted a radical change of the law, we were going to create—to use his memorable phrase—“a cottage industry for the lawyers” until the new law had settled down. We paid attention to what the noble and learned Lord said. Had there been a significant discussion about a radical alternative to the list, I guess that at least some thought would have been given to whether or not we were going to generate a new cottage industry. He will recall that I was slightly more relaxed about cottage industries than perhaps he was, in part because it seems to me that any time the law is changed, lawyers and judges will always want to have a say in determining what it actually means before the whole issue moves forward.

I come back to the significance of the 14 months, because the conversation about a radical alternative to the list has emerged in that time. I am grateful to my noble friend Lord Lester of Herne Hill, who, in turn, introduced me to Sir Brian, and we spent a certain amount of time talking about whether the list was the best way to proceed or whether something more general and more dependent on the common sense and good judgment of the courts would not be a better way forward. I do not wish to unduly embarrass him, but I thank my noble friend Lord McNally also, because he and I had some conversations around this issue as it became clear to all of us that doing away with the list and having a more general statement would almost certainly be the right way forward. From looking at Amendment 23, it is clear to me that the noble Baroness, Lady Hayter of Kentish Town, was having similar conversations to those that I was having, because that amendment is a good summary of where the new thinking should be placed.

My noble friend Lord McNally concentrated on the words,

“all the circumstances of the case”,

and I have underlined them. I am not sure that I entirely buy the official interpretation of those words that his officials have given him. I am of either the old school or the new school but I am not sure which. I think that, just occasionally, it helps to have the obvious stated in a Bill for the avoidance of any misunderstanding or, indeed, any potential mischief-making. In supporting the thrust of what the noble Lord, Lord Browne, and the noble Baroness, Lady Hayter, have suggested, having the words,

“all the circumstances of the case”,

in the Bill would be a happy addition.

Perversely, that takes me to the amendment I have proposed. It emerged out of conversations that were held 14 months ago and it is an accurate reflection of one more addition to the list that emerged from our considerations. However, I am happy to acknowledge that in the intervening time my noble friend Lord McNally, and indeed the noble Lords, Lord Browne and Lord Lester, and the noble Baroness, Lady Hayter, have moved the conversation forward to a much better place. With that in mind, when the time comes, I shall not move Amendment 17.

[Lord Marks of Henley-on-Thames]

My Lords, I found the question of whether we should or should not have a list of factors in Clause 4 a very difficult one. In the Joint Committee I was certainly of the view—a view I expressed at Second Reading—that a list of factors would be helpful, primarily because it would enable members of the public to look at the statute on the internet to see what kind of factors might or might not be important in determining whether a publisher would be held to have acted responsibly.

I remember the arguments around this issue in Joint Committee, and my noble friend Lord Mawhinney may like to think back to them. However, I have now been persuaded that the list of factors arising out of the Reynolds case has been treated as a checklist and used by claimants and defendants alike, and by their solicitors, to put their opponents to very costly proof at the pre-action stage in a way that has tended to be oppressive and increase costs. There is a serious risk that a codified list of factors as set out in the unamended Bill would have the same effect. I now accept that a statement of general principle is the right approach, but I have reached that conclusion with some difficulty.

It is important to note that the way the test is now expressed in government Amendment 14 combines an element of subjectivity with an element of objectivity. That is really the answer to the question put by my noble friend Lord Phillips of Sudbury to my noble friend Lord McNally when he decided not to move his amendment. I am bound to say that I thought that my noble friend Lord McNally did himself an injustice in declining to answer the question because he had in fact already answered it in his opening remarks on his own amendment. The element of subjectivity is that the court will have to look at what the defendant believed, and that is a subjective test. It will then have to look at whether that belief was reasonable, and that is an objective test. That combination will enable the court to develop the law on the basis that it is an issue of fact which will necessarily take into account all the circumstances of the case. My concern is allayed by that because it seems unlikely that the case-by-case development—the cottage industry development to which the noble and learned Lord, Lord Morris, referred—will not create too much difficulty. However, it is a danger, and I hope that it is one that the courts will be careful to consider.

Amendment 15, tabled by my noble friend Lord Phillips—

[Lord Phillips of Sudbury]

I entirely take what my noble friend has said and agree with it. However, would it not be advisable, if only to help the general public and the lawyers? Under Amendment 14, in the name of the noble Lord, Lord McNally, the double test—the subjective and objective tests—which he outlined, could be more clearly enunciated.

[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?

[Lord Phillips of Sudbury]

If it will assist the House, I will withdraw it post haste.

[Lord Marks of Henley-on-Thames]

I would rather that my noble friend Lord Phillips did not withdraw it. I was about to address it in terms that agree precisely with the interruption helpfully made by my noble friend Lord Lester but at a little more length. It seems to me that the amendment in the name of my noble friend Lord Phillips invites the judge to enter into a critique of the position of the defendant and, in using the words “manner, balance and content”, one is requiring the court to decide on whether the defendant should have written what he has written. That seems to me to be inimical to freedom of speech and to go very much against what this defence is trying to do. The importance of the defence is that it is a liberalising defence. It seems to me that that would narrow it in an unacceptable way.

Finally, I turn to Amendment 22, which, rather unfairly, I will comment on before the noble Lord, Lord May, has spoken to it. The question is whether the words used should be “editorial” judgment or “the publisher’s” judgment. It may be that one could argue for the use of both phrases but it seems to me that we need these concepts to go wider than simply editorial judgment. We live in a world where many of the statements to which this defence will be referable will never go anywhere near an editor: they will be published on the internet by individuals and will not bring editorial judgment to bear. It seems to me that the beauty of the amendment in the name of the noble Lord, Lord May, or something very like it, is that it allows for a publication with a much wider ambit than the government amendment. However, by and large, I support the government amendment wholeheartedly.

[Lord Mawhinney]

May I offer my noble friend a personal apology? I said that there were three distinguished members of the committee here present. I will be honest with my noble friend and say that my eyes saw him but my brain did not register the fact. Of course, there are four distinguished members present. I want to correct the record and, in so doing, express my appreciation for his contribution to the committee.

My noble friend invited me to reflect back on our conversations about the list. I well remember conversations about whether the list would become a tick-box exercise and the damaging impact that that would have on courts having to make decisions so that every item was covered. However, I do not remember any conversations about a radical alternative to the tick-box approach. I hope that he will accept that that is my best memory of the conversations that we had.

[Lord Marks of Henley-on-Thames]

My Lords, of course I accept that. I would like to say that I am grateful for the apology, but I am not sure that I am. I had worked out that there were four of us and I had not worked out who was left out, but now I know that it was me. It matters not, perhaps, what the conversations were, as I think that I have made the point.

[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.