Defamation Bill

Lord Mawhinney Excerpts

Wednesday 19th December 2012 Grand Committee

[Lord Ahmad of Wimbledon]

I thank the noble and learned Lord for his suggestion, but if I had been able to finish my sentence, I was going to say that I apologise regarding the commitment made and, as I said, we will be writing to him quite specifically on the issue that he has raised.

I turn to the matters that the noble and learned Lord raised. Amendment 13 provides for this condition to be met if, in commenting on a letter or article in a newspaper, the defendant identifies the subject matter of the letter or article and the date on which it appeared. This situation is already covered by subsection (3). If the statement indicates that the basis for the opinion is what was said in a particular letter or article that has previously been published, then that would enable the claimant to read the letter or article and assess the nature of the criticism, and the test would thereby be met.

The noble and learned Lord referred to a particular case. I am mindful of the great expertise not just around the table but in the array of judicial expertise engaged in the particular case to which he referred and in which he was involved, as he pointed out. I would hesitate at this point to express a view on the rights and wrongs, but what I can say is that Clause 3(3) reflects the test that was subsequently approved by the Supreme Court in Spiller v Joseph, and that covers the circumstances that are set out in the noble and learned Lord’s amendment.

[Lord Mawhinney]

I am grateful to the noble Lord for giving way. Apropos of his comments about the noble and learned Lord, Lord Lloyd of Berwick, that noble and learned Lord is not the only one who finds my noble friend’s response slightly lacking. Governments have a habit of making promises that are important, first, because they come from the Dispatch Box or whatever, and secondly, because they are important to the recipient of the promise. When those promises are not upheld to Members of this House or of the other place there is a significance to the absence, which my noble friend did not entirely encapsulate in his reply. If he will forgive me, as a friend, for saying so, conveying the Government’s understanding that breaking such a commitment is simply not acceptable probably needs more substance than a quick apology, en passant, and the promise of a letter.

[Lord Ahmad of Wimbledon]

I thank my noble friend. He emphasised the word “friend” and I acknowledge this fully. I can assure the Committee that I did not intend to appear as if I did not fully understand the nature of the question put by the noble and learned Lord. If that has been communicated, I make an unreserved apology and assure the Committee that we fully acknowledge the fact that a letter should have been written to the noble and learned Lord, based on the discussions at Second Reading. I am sure that my noble friend Lord McNally has taken particular note of the comments and expressions that have been made. As a reasonably new Member of your Lordships’ House, I always welcome direction, particularly on the way that the House operates. I reiterate that I intended no discourtesy to the noble and learned Lord and thank my noble friend for his direction, which I acknowledge and will take on board. I hope that the noble and learned Lord also feels that I have acknowledged any shortcoming in my initial response.

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[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—

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[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.

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[Lord McNally]

My Lords, my first thought is about the wish that Sir Brian Neill, having just been released from hospital, should follow closely our proceedings. If you are, Sir Brian, please switch off. It is not conducive to recuperation.

I said at the beginning that this clause is at the very heart of the Bill and the contributions have been extremely useful. Since noble Lords have been dishing compliments around, I am very grateful to the noble Lord, Lord Browne, for the attitude that he and the noble Baroness, Lady Hayter, have taken. Of course, in our system, the job of the Opposition is to oppose, and we understand that. However, I think that the more we can produce a Bill that is the result of all-party work and contributions, the better we get something that sticks. This is not an area for party games. When there is a campaign such as the Libel Reform Campaign, it is sometimes tempting for opposition parties simply to espouse the campaign and go down to the last with them. I appreciate where the noble Lord, Lord Browne, has been willing to tell the campaign that it cannot deliver. As we keep on saying, we are trying to get a balance between the right to free speech and the proper protection of reputation. If I can send a message to the Libel Reform Campaign, it is not to indulge in an exercise in impossibilism. We are trying to get this right. As the noble Lord, Lord Browne, and others who have had these responsibilities know, for every concession I make and every amendment that is carried, I have to write to Cabinet colleagues, not all of whom are as enthusiastic about reform as perhaps I am. That is the nature of things, and the way that this Committee is approaching it is helpful in that respect.

As to the amendment in the name of the noble Lord, Lord Browne, the noble and learned Lord, Lord Brown, has just said that he does not support it. I fear that that is part of the dilemma. However, I will think about it. As a layman, I tend towards thinking that there is nothing intrinsically wrong in writing the bleeding obvious into a Bill. I understand when people say, “Well, it’s covered in another Bill or elsewhere in this Bill et cetera”, but it is reassuring if the public can read very simply what we intend.

The noble Lord, Lord Browne, made the point that within the Bill there are a suite of defences. It is also worth reminding ourselves—the noble and learned Lord, Lord Brown of Eaton-under-Heywood, has just reminded us of it very clearly—that in the end we will be subject to interpretation by judges. We had a short debate yesterday about it, and that is what the separation of powers is all about. Of course this will be tested, and that is the challenge to the work we do. We will have a look at the phrase, “all the circumstances”. We have quite a long time until we meet again, and perhaps we can have some further talks about it.

[Lord Mawhinney]

Before my noble friend leaves this point, who are the Cabinet Ministers who fail the McNally test of enthusiasm?

[Lord McNally]

I will publish them on the MoJ website. Even better, I will tweet them. No, I will not. Now I am trying to run through in my head who they are.

It is interesting that the recently departed Solicitor-General, who was and is a practising libel lawyer, thought that this was entirely irrelevant, unneeded and so on, and argued very strongly against it. He felt strongly about it, although that is not the reason why he is now an ex-Solicitor-General.

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[Lord Allan of Hallam]

I agree with the noble Lord. The new concept has been described. There is a lot of thinking and literature being developed around this. We are talking about private speech in a public space. Essentially, the speech is made in a private tone but the reality is that the speech is publicly accessible, because of the nature of the technology, to anyone in the world. That does not mean that we ignore it, with which I completely agree. In this clause, we are aiming to get towards a sensible way of dealing with that speech and recognising that it is different from the speech traditionally regulated through defamation law, which was speech through editorialised large organisations.

[Lord Mawhinney]

I am grateful that the noble Lord made this argument because of all the arguments we heard in the committee this was the one we thought probably had the least validity. If you make a statement and it goes round the world, who—I was almost tempted to say a naughty word—cares whether it is made in a pub, in Tesco or anywhere else? Who cares if it is made by a friend to a friend? To use that argument is to somehow say there is a qualitative difference. I will speak later in this debate at greater length but I want my noble friend to think carefully before relying on what is almost a patently non-sustainable argument.

[The Deputy Chairman of Committees (Lord Brougham and Vaux)]

I want to remind the Committee that the Chamber will be rising in about five minutes and, in the spirit of Christmas, if noble Lords can keep their comments short we will finish after the end of this group.