Lord Mawhinney
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Defamation Bill
Lord Mawhinney Excerpts(11 years, 11 months ago)
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Lord Mawhinney
“( ) After paragraph 8 insert—
“8A Communication between a Member of Parliament and any constituent.””
Lord Mawhinney
My Lords, although two days have passed, this is the first debate following that on Amendment 31, which was moved by the noble Lord, Lord Hunt of Chesterton. After we had adjourned, a thought occurred to me which I probably should have put on the record in that debate. In all truth, it did not occur to me then; but it has since, so I wish to do that. In col. GC239 of Tuesday’s Hansard, in summing up his amendment, the noble Lord listed a number of institutions with which he had been in communication in framing it. One of them was the Institute of Physics, which he said has 45,000 members. It was not until I was on my way home that I realised I should probably have said that I am an honorary member of the Institute of Physics. I suspect that does not even remotely influence anything but, for the record, I make that clear.
As regards Amendment 39, I want to point out that it was drawn to the Joint Committee’s attention that when a constituent speaks to a Member of Parliament, that Member, if he then relays the information given to him or her in the House, has privilege as far as Parliament is concerned. However, there was a question mark as to whether the communication between the constituent and the Member of Parliament was also covered by privilege. It seemed to the Joint Committee that it was extremely important that it should be covered by privilege because at the very heart of our democratic process is the concept and the reality that a Member of Parliament acts on behalf of his or her constituents. That ought not to be mitigated or reduced by pressures that would rule out things that the constituent could say to his or her Member of Parliament.
We were also told that the Government intended to bring forward legislation on privilege. We all understood that and the committee took the unanimous view that—how do I put this delicately?—this might be a long, drawn-out process, which started with ministerial statements some time ago that the Government intended to legislate in this area, and various steps have been taken along that path. There was no great confidence that we would soon reach the end of that path. Unanimously, the committee decided to recommend to the House and the Government to clarify the position and to remove any doubt that what is said between a constituent and his or her Member of Parliament should also be covered by privilege. The argument was raised by one witness that these days you cannot necessarily trust every Member of Parliament to behave appropriately in such circumstances, to be careful in the use of what would probably be highly contentious information and to use it in such a way that would be in keeping with the well established standards of the House of Commons.
The Joint Committee took the view that an occasional misuse of information by an individual Member of Parliament was not sufficiently important to offset the fundamental issue that we were addressing. Our thoughts are encapsulated in this amendment, which I beg to move.
Lord Lester of Herne Hill
My Lords, I rise in support of the amendment and what I will say briefly has some relevance to my later Amendments 43 and 44, dealing with parliamentary privilege. I am very sympathetic to the idea explained by the noble Lord, Lord Mawhinney, that we should not wait for some future legislation as a result of the consideration of parliamentary privilege generally, but that where there is an issue that properly falls within the scope of defamation and nothing else, we should take advantage in this legislation to make the necessary amendments. I regard this as one necessary amendment for the reasons given by the Joint Committee on the draft Bill.
The Government stated in their response that this was best left to the forthcoming Green Paper and draft parliamentary privilege Bill. The Green Paper concluded that while some forms of correspondence between constituents were already protected by common law qualified privilege, it would be inappropriate to extend qualified privilege to all forms of correspondence as it would run the risk of potentially encouraging correspondence to MPs intended to circumvent court orders and damage the privacy or reputation of third parties. The Government expressed the view the it would better to continue to enable the courts to determine the boundaries of privilege in individual cases.
I understand that and it is an objection to a wider issue than liability and defamation procedures. It is all about breach of privacy and contempt of court. However, given that the amendment of the noble Lord, Lord Mawhinney, seeks only to provide qualified privilege in defamation proceedings and that there seems to be agreement that it is already covered by the common law in appropriate circumstances, I see no good reason in principle to oppose it. I note that the Libel Reform Campaign supports it. It suggested adding “Private” at the start of the amendment to distinguish between letters and e-mail and social media.
Lord Mawhinney
My Lords, I think my noble friend in his careful reply hinted vaguely that I might have been motivated by a touch of cynicism. I am surprised about that given how long this has been in the hopper. A second Joint Committee has now been established and part of its job will be to review the findings of the first Joint Committee. Were I to be accused of cynicism, it might more usefully be applied in those circumstances rather than simply on the basis of time elapsed.
It is probably a somewhat unusual set of circumstances for a Joint Committee to be established in part to review decisions taken by a previously properly established Joint Committee, and I look forward to the potential for an exciting debate in your Lordships’ House about which of the Joint Committee reports the House gives most credence to were the two reports not to be identical.
As regards the question raised by the noble Lord, Lord Phillips of Sudbury, my understanding is that malice is always outside qualified privilege. As regards the question raised by the noble Baroness, Lady Hayter, I was careful to draft this amendment in general terms. I did that in part because as a former Minister I know well that if the spirit of the amendment is adopted, officials will always find an opportunity to tell the Minister that the amendment is not quite correctly drafted and that he needs to do this, that or the other. They do that extremely well, and I have been the beneficiary on many occasions, so I am not being in any sense rude or aggressive. I am simply explaining that it did not seem to me to be worthwhile to try to think up every set of circumstances. If the Minister accepts the principle, when the Bill emerged from Report, it would be drafted in the way that would be most sensible as far as the Government were concerned. On this issue, I guess that would be most sensible in terms of the House as well.
The issue is that day in, day out constituents correspond with their Members of Parliament and there ought not to be an inhibition on that. Personally, I would probably restrict it to the direct communication between the constituent and the Member of Parliament because it would be that on which the Member of Parliament would stand up and address the House of Commons. Anyway, the Member of Parliament has to exercise some judgment about what he or she wishes to say in the Chamber. I do not think our Joint Committee—I look to the noble Baroness to correct me if I am wrong—was trying to be picky to the last detail. We were trying to persuade the Government to accept this principle, which is why I worded my amendment simply to get the principle in front of my noble friend. I have heard what he said and have some sympathy, but do not feel encouraged that the Government’s timeframe will be such as to meet the urgency that I think the Joint Committee wanted him to feel on this subject. Of course, I will be happy to withdraw the amendment but, in doing so, I ask my noble friend to give it serious thought and perhaps to bear in mind that, were this to go into the Defamation Bill, when the Government’s all-singing, all-dancing piece of legislation comes forward, this clause could at that point be taken out of that Bill and put in to the new Bill so that all defamation was in one place. I beg leave to withdraw the amendment.
Lord Mawhinney
My Lords, my Amendments 41 and 42 have been bracketed with this amendment, and I would like to speak to them at this point. I have great sympathy with what the noble Lord, Lord Phillips, has just said about auditors, and I hope attention will be paid to that.
In Clause 7(9) the Bill has:
“After paragraph 14 insert … a fair and accurate … report of proceedings of a scientific or academic conference”.
The Joint Committee spent a lot of time talking about this. It felt strongly that peer-reviewed articles were certainly right to be covered—and I would like to pay particular thanks to the noble Lord, Lord Bew, for his considerable help in helping the committee understand the issues on this particular matter—but it was much more nervous about the inclusion of conferences. I should add that from 1968 to 1984 I was an assistant professor, a lecturer and a senior lecturer in universities in the United States, and in this country and in those capacities I attended many academic conferences, as has the noble Lord, Lord Bew, and other noble Lords.
“Conference” is a very widely drawn word. Having attended the world conference on radiation biology and radiation physics, I would have no difficulty in saying that it qualified for special consideration in the context of the Bill. On the other hand, and I speak carefully, conferences are called by a variety of people for a variety of reasons, not all of which deserve the sort of protection that we are envisaging in this legislation.
The Joint Committee came fairly firmly to the view that there ought to be protection. The wording “scientific or academic” included medicine. There were queries as to why medicine was not specifically mentioned but we thought “scientific or academic” was sufficient to cover all the academic disciplines.
We were very strongly of the view that there ought to be protection. We were equally strongly of the view that conferences ought not to be included unless my noble friend intends on Report to define, delineate and describe what the Government mean by an academic conference, or unless he wishes to add regulations about the reviewing of contents of conferences to bring them into line with peer-reviewed papers.
Amendment 42 adds to peer-reviewed papers coverage for material in archives that is of academic importance and subject to the ground rules specified in the particular amendment. The effect of the two amendments together is strongly to endorse peer-reviewed scientific and academic papers, to remove the Government’s intention to include conferences and to add authentic archive material.
Lord Bew
My Lords, I rise to support the amendment moved by the noble Lord, Lord Mawhinney, and to say that he has accurately recalled the discussion and the feeling of the Joint Committee. My sense is that we actually did get differing evidence. For example, I seem to recall that the Master of the Rolls was sceptical about extending privilege to academic conferences for the reasons that the noble Lord, Lord Mawhinney, has given us. On the other hand, we had a former Lord Chancellor, for example, who took the view that it was right to extend privilege. So there was a genuine difference of evidence from significant people. We were certainly much keener to protect peer-reviewed journals than we were to offer a new measure of protection for conferences for the simple reason that all of us who are academics have attended conferences that we are not sure would deserve this privilege. The Government may well have things to say to expand their thinking to produce a more enthusiastic response—on my part, at any rate. However, it is worth saying that they were somewhat cagey on this matter.
Perhaps I may say very briefly, referring to the privilege matters discussed and to what is about to come, as the one person who was a member of the Joint Committee on Parliamentary Privilege and of the Joint Committee on the Defamation Bill, that I am finding the discussion so far extremely helpful, I expect to find further discussions even more helpful, and I am learning a lot.
Lord McNally
You can see, Lord Chairman, that this is a very interesting Committee. Amendments 41 and 42 would alter the way in which the Bill extends qualified privilege to certain types of material. Again, I was interested in the interventions and understand some of the concerns expressed. We thought about whether we should try to define “conference”, and perhaps we will have another think about that. If anyone has a suggestion, they know my address.
As the Committee will know, we had a lot of discussions with editors of a number of scientific and academic journals. They were keen to stress that qualified privilege for peer-reviewed articles was seen as the most important priority by them. I very much agree with the point that the noble Baroness, Lady Hayter, made in her intervention. We should hold close to the protection of a proper peer-review process in the changes that we are making to the law.
As the noble Lord, Lord Bew, indicated in his recollection to the Committee, these editors and others were not opposed to the extension of qualified privilege to fair and accurate reports of proceedings of scientific and academic conferences, or to fair and accurate copies of, extracts from or summaries of matters published at such conferences. Our impression was that the scientific community has welcomed this extension.
We do not agree with this amendment. The protections set out in subsection (9), along with the protection in Clause 6 and a number of other measures in the Bill are an important step forward and reflect our aim of ensuring that scientific and academic debate is able to flourish.
Lord Mawhinney
We are all agreed on the importance of peer review. As my noble friend is going to think further about conferences—he has just said that he will—will he do so in the context of peer review? That is the principle that we are all hanging on to. The Joint Committee could not find to offer to him a satisfactory way which enshrined peer review in the context of conferences, partly because peer-reviewed papers are peer reviewed ahead of publication. Peer review in conference would be subsequent to whatever was being said. Will my noble friend at least assure the Committee that when he reflects further on conferences, he will do so specifically in the context of peer review?
Lord McNally
Most certainly. That was the point that the noble Baroness, Lady Hayter, made, with which I heartily concur. It is interesting that when the Bill was debated in the other place, the move in the direction of conferences and other gatherings was warmly welcomed. I will reflect, but these proceedings will of course also be read by the scientific community. Perhaps it will help me. I have made this point time and again: I want to be able to look the scientific and academic community in the eye and say, “Look, this is the best that we can do in giving scientists and academics the maximum of freedom to indulge in proper debate and criticism in their areas of expertise”. I certainly accept that suggestion by my noble friend Lord Mawhinney. There has been a general welcome for our attempt to extend this more widely than the very narrow context of peer-reviewed articles in magazines of repute.
Amendment 42 would extend qualified privilege, subject to explanation or correction, under Schedule 1 to the Defamation Act 1996 to peer-reviewed articles and fair and accurate copies and reports of material in an archive where the limitation period for an action against the original publisher of the material has expired. In speaking to the amendment to Clause 6 tabled by the noble Lord, Lord Hunt of Chesterton, I expressed concern about extending the protection for peer-reviewed material more widely than in respect of articles in scientific and academic journals. This amendment would extend that protection even more widely to any peer-reviewed material, wherever it appears, and, as a result, would serve only to increase the risk of the defence applying in instances where the peer-review process had not been applied in a sufficiently robust way.
In respect of extending qualified privilege to archives, this is something that I know the Joint Committee on the draft Bill, chaired by the noble Lord, was in favour of. We indicated in the government response to the committee that we would consider this proposal. However, after considering the position further, we came to the conclusion that extending qualified privilege to archives would potentially make the defence available to a very wide range of material. There would also be considerable difficulties in defining what types of archive should or should not be covered. We believe that this would risk not providing adequate protection for claimants, and therefore we do not consider this amendment to be appropriate. There is no generally agreed definition of what constitutes an archive, and this amendment would potentially cover a very wide range of material.
I am have to say again—and I am not opening any gates for reconsideration on this—that I was, until a few weeks ago, the Minister for the National Archives. I am extremely proud to have held that position because it is one of the jewels in our crown in terms of a national asset. As I said to the noble Lord, we are again worrying about where to draw the line. On this occasion, we draw the line, as far as he is concerned, on the wrong side of his amendment, but I hope he will agree to withdraw it.
Lord Mawhinney
“( ) A person domiciled in England or Wales may bring an action for defamation in respect of publication by a person to whom subsection (1) below applies provided that they can demonstrate that such publication has caused them serious and substantial harm.”
Lord Mawhinney
My Lords, politics is frequently described as the art of the possible, but it is also described as dealing with truth and people’s perception of the truth, and the latter is frequently harder than the former for politicians to handle.
I was reminded of this particular issue because there have been a number of very high profile legal cases called, mainly in the tabloid press, libel tourism. Because they have been high profile and involved lots of money, a perception has been created that this is a major problem. In fact, though, the evidence given to the Joint Committee was that it was not a major problem, in the sense that it happened not frequently but occasionally. However, the perception of it being a major problem probably meant that it needed to be addressed, and the Government, in my view and that of the Joint Committee, have sought to address libel tourism in Clause 9. My amendment would clarify that if you are resident in this country you could take out legal proceedings wherever the libel was alleged to have taken place. This country has a reputation of being a friendly place in which to bring major libel cases, but in many of the few they have precious little to do with England and Wales—and “precious little” is probably a euphemism for practically nothing.
We as a Committee were keen to ensure that, in defining what you could not do, we did not raise any question about what a bone fide resident in this country could do, irrespective of where the libel took place, so long as the UK resident could show that he or she had been seriously and substantially harmed. If something defamatory was said in a far-flung part of the world and no one in this country ever heard about it, that would not pass this test. On the other hand, it would pass the test if there was perceived to be serious harm done in the perception of people in this country. The amendment is not complicated, nor does it seek to persuade the Government to go into new territory that they do not want to go into. It is with the grain of the Government’s thinking but would clarify that trying to address libel tourism does not diminish the right of residents of this country, subject only to the harm test.
Two other amendments are linked with this one. On Amendment 49, it is quite clear from the Government’s Bill that the court has to make a decision about what is “appropriate”. What is “clearly appropriate” will therefore fall into the same category. My sense is that “clearly” is a higher level than “appropriate”. A court is perfectly capable of deciding “appropriate” and “clearly appropriate”, and at this stage I am ambivalent until I hear from the Minister why he thinks this is a good or bad idea, because I can see arguments in both directions.
Initially, I had a sympathetic reaction to Amendment 50A. However, I started to think a little more about what the words say. In our law we do not often require people to demonstrate that they have funds available before they begin proceedings; indeed, if that were a general tenet of the law of this country, Members of Parliament would have a lot less to do because constituents would stop coming to them and saying, “I won a law case but the person doesn’t have the wherewithal to meet the bill”. Indeed, I have been in that situation myself.
I am not entirely clear how you would prove to the court’s satisfaction that not only did you have the money but it would still be there when the judgment was made. Having the money before you start and still having it when you finish are, conceivably, two entirely different issues, so I have some hesitation about the amendment of the noble Lord, Lord Singh of Wimbledon. Again, I would also be interested to hear what the Government have to say. I beg to move.
Lord Phillips of Sudbury
My Lords, I speak to Amendment 49 in my name. I believe that Clause 9(2) goes too far in requiring a court to be not merely satisfied that England and Wales is the most appropriate place to bring an action but clearly satisfied. It is not clear to me quite what that would mean in any event. Is it applying a criminal law test of “beyond reasonable doubt”? I think it loads the dice against a person who is not domiciled in the UK.
Lord Mawhinney
What the clause actually says is,
“satisfied that … England and Wales is clearly the most appropriate place”,
not,
“clearly satisfied that … England and Wales is the most appropriate place”.
Would that make any difference to his argument?
Lord Phillips of Sudbury
I am obliged to my noble friend for picking up my slackness. No, I do not think it would. The wording, as the noble Lord, Lord Mawhinney, just said, is:
“England and Wales is clearly the most appropriate place”.
I think it is quite enough to leave it to the judge to decide whether it is the most appropriate place. That is a strong test in itself and, as I say, I do not think it is right to load the dice in this regard. In my view, what is provided for in Clause 9 goes far enough to stop the most undesirable cases of libel tourism.
On Amendment 50A in the name of the noble Lord, Lord Singh of Wimbledon, I am afraid I agree with my noble friend Lord Mawhinney. It would make the position of the poor litigant wanting to protect his or her name and reputation even more unequal than it already is. We know that legal aid does not apply to defamation proceedings and to have a provision that requires him or her to satisfy a court that they have resources to meet costs arising from an unsuccessful action means that at least half the population will never be able to protect their reputation, and that cannot be right.
Lord Mawhinney
My Lords, I listened carefully to what my noble friend said, and he generated in me a little surprise; I was under the impression that he and I were singing from the same page of the hymn sheet on this one. I shall suggest to him why he and I may appear to be thinking differently and invite him to reconsider one thing that he said.
I incorporated into the amendment the view of the Joint Committee about “serious and substantial harm”. We have already debated that and the Government have a view. If their view turns out to be as we suspect it to be from this debate, I am not chasing on “serious and substantial”; I used it merely because the Joint Committee did, but I am not sure that anyone is going to get too precious about that aspect of the amendment.
As I said at the beginning, the amendment was designed to protect those who live in this country so that they would not get excluded. My noble friend chose to interpret that—perfectly correctly; I have no complaint—by citing a Russian oligarch who lived here and who had been libelled in Uzbekistan, I think he said, and the damage was in that country.
This is the point that I would like my noble friend to think about: if you take this amendment as a freestanding amendment, it allows itself to be interpreted in the way in which my noble friend interpreted it. However, if the amendment became part of the Bill then it would sit just a few lines above Clause 2, where the court has to make a decision as to whether this is the most appropriate location for a legal case to be heard. Given the example that my noble friend used, an English court would be asked to decide whether or not this was the most appropriate place for a Russian oligarch living in Kensington to take action against someone who slandered or libelled him in Uzbekistan. I yield to no one in my admiration for British justice and I am guessing that, if you put together the amendment and Clause 2, judges would say, “No; the fact that you are here allows you to come and ask us, but it doesn’t mean that this is the most appropriate place for you to do this”. When my noble friend says that he will reflect further on this debate, I invite him to look at his example against the pairing of the amendment and Clause 2, which would both be an integral part of this overall clause, and invite him to accept that Clause 2 has a mitigating effect on the amendment. If he buys the general argument that I am encouraging him to think about, and if he says that in order to clarify this we need to tweak the new amendment to make crystal clear what we are trying to say, then I am free and easy with that; in fact, I would be delighted were he to do so.
Given that caveat, because I think that we are not very far apart and that a drafting tweak might clear that up, I thank my noble friend for his response. I note that he is nodding in thoughtfulness—I attribute nothing else to him other than thoughtfulness—and in that spirit, I beg leave to withdraw the amendment.
Lord Lester of Herne Hill
I am very grateful to the noble Lord, Lord Browne, for the way in which he has just presented the amendment. I do not have the Booksellers Association as my client, although I did some time ago meet it in order to discuss the problem which has been eloquently described. I have, however, acted for Amazon US and Amazon UK and I would like briefly, because it harps back in a way to Clause 5 and the internet, to link that with what we are now discussing because it is quite important. If I walk into Daunt Books in London to buy a book, I am reasonably clear that if the bookseller has no reason to believe that the book is defamatory, the bookseller would have a defence under the defence of innocent dissemination as it was before 1996 and probably under Section 1 of the 1996 Act as well. I agree that there is some lack of clarity about the effect of Section 1 on the common-law defence in that situation.
The problem becomes much more acute for the international bookseller who is selling via the internet. The case that I was once in—thank goodness it never led to an argument because it was settled—is a very good example. A book published in the United States completely wrongly and in a defamatory way attributes to police officers in Northern Ireland the killing of Catholics. It is completely disgraceful and defamatory. So the police officers go against the author who is made bankrupt. They go against the publisher who is made bankrupt, so they have no recourse at all. So they go against the international bookseller on the basis that it has sold a defamatory book on the internet. When we buy that on our computers online, whether from Amazon US or Amazon UK, that is an act of publication. There is therefore publication by the bookseller of something that is defamatory and therefore Amazon is liable. Amazon, shipping the book from its warehouse in California, has absolute immunity under US law. Amazon does not have immunity under UK law, nor should it, and the same applies to Amazon UK.
The practical problem is: what is the position of the international bookseller? It can try to rely on Section 1 of the 1996 Act. The problem with that is that it is quite narrow and very unclear as to how it applies. It can try to rely on the e-commerce directive and to give new meaning to Section 1 of the 1996 Act. It can try to rely on Article 10 of the European Convention on Human Rights to give clarity as well. But all I can say is that some years ago I had a merry time—well paid—in trying to work out the answer to the puzzle that I just described.
If something like Amendment 50C were included, and the noble Lord, Lord Browne, is quite right in saying how difficult it is to clarify some of this, it would have benefit not only for the home-grown London bookseller but for the international bookseller in trying to resolve what would otherwise be extremely complicated problems that I have probably failed properly to explain.
Lord Mawhinney
If peer-review is one of the principles that we want to hang on to, combating chilling effect should be another that we want to hang on to. I have no idea, and I am not competent to judge, whether the wording of the amendment tabled by the noble Lord, Lord Browne, is right and precise, but combating chilling effect ought to be deemed to be so.
Lord Ahmad of Wimbledon
My Lords, I will take all three amendments together as they have been grouped. In doing so, I will refer first to Amendments 50B and 50D. They seek to provide that Clause 10 should prevent an action for damages for defamation being brought against a person who was not the author, editor or publisher of the statement complained of unless the court is satisfied that it is not reasonably practicable for an action to be brought against the author, editor or publisher, but should not prevent a court from granting any injunction or order requiring a person to cease publishing a defamatory statement.
As the noble Lord, Lord Browne, indicated, the amendments were originally tabled in Committee in the other place by the honourable Member for Newcastle-under-Lyme. His concern was that circumstances could arise where a claimant who had successfully brought an action against the author of defamatory material on a website was left in the position of being unable to secure removal of the given material. This situation might arise as a result of the fact that an author may not always be in a position to remove material which has been found to be defamatory from a website, and the new defence in Clause 5—together with the more general protection provided to secondary publishers in Clause 10—might prevent the website operator from being required to do so. As the noble Lord acknowledged, it was precisely for this reason that the Government introduced Clause 13 into the Bill on Report in the other place.
In an offline context where a successful action is brought against an author, editor or publisher and a secondary publisher is made aware of the successful action, we believe that in the great majority of cases the secondary publisher would act responsibly and remove the defamatory material from sale.
However, there are issues that still appear pending and this point has been reiterated by my noble friend Lord McNally and made by me as well. We are listening in great detail to the debates and discussions in Committee. As has been illustrated from the Government’s perspective in the other place, appropriate clauses and amendments are being introduced to refine this particular Bill if and when they are needed.
Amendment 50C is identical to the one tabled on Report in the other place. It was said then that it was in part an attempt to codify the defence of innocent dissemination. As the Government explained then, Clause 10 is about jurisdiction. To require the court, as part of an assessment on jurisdiction, to assess the merits of the case before it in the manner proposed would be highly unusual and potentially confusing. Furthermore, it would involve additional evidence and expense, which would be wasted in the event that it was held that it was reasonably practicable for the claimant to pursue the primary publisher. Such arguments are properly pursued once it is established that the court indeed has jurisdiction. Subsection (1)(c) would also put the onus on the claimant to show what was in the knowledge of the secondary publisher, which, as well as being practically very difficult, would be a significant shift in the current law.
The noble Lord, Lord Browne, drew to the Committee’s attention the fact that there is a debate over the terms of Section 1 of the 1996 Act—the noble Lord, Lord Lester, referred to this as well—and how that compares to the common-law defence. A question was raised about the Government’s position. The Government believe that it is preferable to adopt the approach in Clause 10 of directing claimants towards those who are actually responsible for defamatory material. This reflects the approach that we have taken elsewhere in the Bill. In the unlikely event that it is not reasonably practicable to sue the author, editor or publisher, Clause 10 allows a claimant to bring an action against a secondary publisher, such as a bookseller. However, nothing in the clause would then prevent that bookseller from deploying any defences available to him them.
We believe that this approach strikes a fair balance that provides substantial protection for secondary publishers while not denying claimants a means of redress where this is deemed appropriate. I hope that on that basis of these explanations, the noble Lord will agree to withdraw his amendment.
Lord Mawhinney
“( ) A court may only order a trial with jury in a case involving a senior figure in public life and when that person’s credibility is at stake.”
Lord Mawhinney
My Lords, there is no need to take any time to establish that all of the members of the Joint Committee believe in the importance of trial by jury. That was not the issue. The issue was whether jury trial was appropriate in defamation cases. Most of us went into the committee being unsighted, and the evidence was very quick and almost unanimous: judges had in effect already decided that jury trials were probably not the way to go in defamation cases. A number of witnesses told us that there had not been a jury trial for defamation or libel in the past 18 months to two years; the practice had largely ceased. We were moving to a position of saying that we endorsed the present situation.
Then we got evidence from the editor of the Guardian. In his evidence, he said something which caused us all to perk up. He referred back to the case of the Guardian against Jonathan Aitken. He said that he and his newspaper had wished that that trial had been conducted in front of a jury. He made the case that occasionally, perhaps even exceptionally, people in public life needed to be tried in front of their peers simply because of the public perception and ramifications of someone in high office being in that position. He specifically mentioned judges, Members of Parliament and, if my memory is right, very senior people in the Armed Forces, where the credibility of the public and the individual were such that they needed to be tried in those circumstances. However, other than that, he said that what the judges had already established was the way to go. All I have sought to do in this amendment is accurately to reflect our evidence. I hope that I have done so faithfully. I beg to move.
Lord Brown of Eaton-under-Heywood
My Lords, there can be few occasions, particularly at five past five on a Thursday afternoon, when one feels entitled to tell, so to speak, a story from one’s own experience. However, I believe this to be just such an occasion.
Over a quarter of a century ago, I tried, with a jury, the case of the late Robert Maxwell suing Private Eye. It was a defamation case. The burden of the central complaint that Maxwell was making was that Private Eye had published a piece which insinuated that he had tried, by means of free holidays and the like, to bribe the then leader of the Labour Party—Neil Kinnock—to recommend him for a peerage: plus ça change. The case was opened—as all these cases invariably are—at great length and the witnesses started to go into the witness box. I came back from lunch on the fourth day to find a note from the jury which read, “Please, sir, can you tell us what a peerage is?”. On the fourth day of a case all about peerages they did not know what that meant, which did not increase my faith in, and admiration for, juries.
A later case over which I presided in the Court of Appeal was that of Grobbelaar, who secured a very large award from the jury—I cannot remember the exact amount but I think that it was about £100,000—on the basis that he had been libelled by a newspaper which had accused him of match fixing. Noble Lords will remember that he was a Zimbabwean who I think played for Liverpool at the time. We eventually held—we were upheld in this by the Appellate Committee of the House of Lords—that that was a perverse award. Again, that was not greatly to the credit of juries. Therefore, I confess that I am very strongly opposed to juries in defamation cases, not least when important people—celebrities—are involved. Juries tend to be mesmerised by celebrity. Indeed, that is true of defamation cases and there are many other instances—it is perhaps invidious to mention them—where that can be seen to be so in the libel context and perhaps more widely.
Under Clause 11 as drafted, defamation cases will be tried without a jury unless a court orders otherwise. The matter is left to the general discretion of the court. Obviously, only very exceptionally would it be thought a good idea to have a jury trial with all the disadvantages of such a trial in terms of length, expense, unreasoned judgment and all the rest of it. If I may respectfully say so, the problem as I see it in this proposed amendment is that it is, first, too prescriptive and, secondly, may well encourage the use of jury trial. In the original report of the Joint Committee, it was recognised in paragraph 25 that it would be undesirable to restrict this discretion—that is, the court’s general discretion—although it is fair to say that it went on to state that it should be possible to outline general principles. The general principle later referred to was that the circumstances in which the discretion should be exercised,
“should generally be limited to cases involving senior figures in public life and ordinarily only where their public credibility is at stake”.
The first problem with the proposed amendment is that it limits the discretion of the court because it states that:
“A court may only order a trial with jury”,
in this class of case, and there may be others. For that reason, it also raises in acute form the definition problem of deciding who is properly to be regarded as a senior figure in public life and when that person’s credibility is at stake. Perhaps more fundamentally, the amendment raises the very concerns that the Government in their response to the Joint Committee report refer to in paragraph 62. It was there said that:
“Concerns were expressed that including guidelines in the Bill could be too prescriptive and could generate disputes”.
I have already alluded to that as one of the problems. It goes on to say that:
“There would also be a risk that detailed provisions setting out when jury trial may be appropriate could inadvertently have the effect of leading to more cases being deemed suitable for a jury than at present”,
which would work against the committee’s view, one that the Government share, that jury trials should be exceptional. If this clause is amended as proposed, there is a risk that if somebody who claims to be a senior figure in public life whose credibility is at stake wants a jury or, indeed, the defendants to a claim by someone who is arguably within that description want a jury, then initially you have a dispute and a debate as to whether it is a case where it is permissible to have a jury and, if so, the suggestion would be that Parliament would have implicitly sanctioned the thought that that is indeed a case where it is appropriate, whereas I would suggest through my earlier illustrations that not even in that case would it generally be appropriate for a jury trial. I would respectfully oppose the amendment.
Lord McNally
My Lords, perhaps I should say at the outset that both my party and the coalition Government are more attached to jury trial than perhaps some of the comments about the quality of juries in this debate. Part of the coalition agreement is about our support for jury trial. However, we as a Government also accept the strong arguments made by the Joint Committee. The contributions from my noble friend Lord Mawhinney and the noble Baroness, Lady Hayter, put this amendment in context, but for me the extremely helpful intervention by the noble and learned Lord, Lord Brown, removes any reason for lengthening this debate. He explained clearly the dangers of going along the lines of the amendment. We believe that under the terms of Clause 11 as drafted, the courts will have a wide discretion in deciding whether jury trial is appropriate.
I take the point made by the noble Baroness, Lady Hayter, in her closing remarks. Part of what we are hoping is not to open the gates to more jury trials or to create any special class of person who should be put into jury trials. Much of what we are hoping for, as a result of this legislation and other actions taken, is much more robust case management by judges to make cases more easily and cheaply dealt with. However, I have to tell my noble friend that, although I understand his loyalty to the committee of which he is chair, the Government would not find his amendment acceptable.
Lord Mawhinney
My Lords, I do not need to take too much time. I thought it was interesting that all three distinguished lawyers who took part in the debate with very impressive political sleight of hand got us into celebrities extremely quickly. The Joint Committee did not discuss celebrities; I did not mention celebrities; the Bill does not mention celebrities; and the amendment does not mention celebrities. But celebrities are easier to attack than generals, admirals, members of the Cabinet or senior judges, so I am not surprised that they went for celebrities, but we might at least have the record straight.
Normal behaviour now does not do juries. It has not for the past 18 to 24 months. There has not been one, we were told. I carefully said in my opening remarks, “exceptionally” and “occasionally”, and that was the view. It remains my view precisely because—and I think the noble Baroness, Lady Hayter, said it better than I did—wrapped up in all this is an element of public confidence. It is easy to squander public confidence. If you have ever been a Member of Parliament, you know it is extremely hard to get it back once you have squandered it, so I wish my noble friend well. He has the lawyers on his side, there is no question. I look forward to listening to him defending to the rest of the country how doing away with jury trials in defamation cases enhances the coalition’s commitment to jury trials. I beg leave to withdraw the amendment.
Lord Marks of Henley-on-Thames
My Lords, I strongly support allowing county courts to hear all but the most serious defamation cases. As the noble Lord has said, it was a recommendation of the Joint Committee; indeed, it was the noble Baroness, Lady Hayter, and I who advocated it very strongly on that committee. Quite apart from the complexity of the law and the arcane procedures that we have developed, one of the main reasons why costs have become so high in these cases has been the development of a highly specialist Bar and specialist solicitors, all conducting cases very expensively exclusively in the High Court.
The simplification of the defences in this Bill, coupled with the simplification of procedure and more extensive and earlier case management, should make it possible to reduce the complexity of defamation cases substantially. In those circumstances, the development of county court expertise with designated judges to manage and hear these cases would make justice, importantly, more local, quicker, cheaper, simpler, and in all ways more accessible. Of course there will always be cases that are complex, difficult and paper-heavy. They will require High Court expertise and the attention of specialist High Court judges. However, I hope that for the generality of cases county courts will become the norm and that therefore the cases will become simpler to sue, to defend and to resolve. We recommended trialling county courts for defamation cases; I ask that that happens soon.
Lord Mawhinney
My Lords, just as I paid tribute earlier to the noble Lord, Lord Bew, for his contribution, so I pay tribute also to the noble Baroness, Lady Hayter, and the noble Lord, Lord Marks. Without them I am not sure that the Committee would have come to this conclusion. The noble Lord, Lord Marks, has just eloquently explained our thinking and our reasoning. Indeed, my noble friend Lord McNally may remember that the noble Baroness, Lady Hayter, had one or two questions for him on this subject when he came to give evidence.
The noble Lord, Lord Browne, said that we proposed a pilot, and the noble Lord, Lord Marks, has confirmed that. I would add that we proposed a pilot in part because we thought that this was such a radical idea that the Minister would need some help in dealing with the legal profession. We could hear the legal profession lining up against this idea and we wanted to side with the Minister, so we suggested a pilot. However, he should not be unaware of the fact that he will have one or two sessions of arm-wrestling with people who were not overly persuasive to the Committee before, hopefully, he gives effect to this particular amendment.
Lord Phillips of Sudbury
My Lords, I add my strong support for this amendment. You could almost say that we have been mourning the failure to provide justice in the defamation field for more years than I can remember. The Society of Labour Lawyers published a document, Justice for All, back in the 1960s. The Society of Liberal Democratic Lawyers published its blueprint 20 years ago. Every legal body that I am aware of has bemoaned the intractable problems related particularly to defamation. However, I see here the seeds of a breakthrough. It is very difficult for us lawyers to accept that sometimes the best is the enemy of the good, and I would far rather have some rough and ready justice within a sensible, practical framework such as might be provided under this amendment than I would see justice spurned. I hope that we can be open-minded and a bit imaginative and, before this Bill is done, provide something that will remedy what is at present a shame for us all.
Lord Mawhinney
“Civil Procedure Rule Committee Guidance
The Secretary of State shall publish guidance for the Civil Procedure Rule Committees proposing procedural reforms in the case of defamation proceedings.”
Lord Mawhinney
My Lords, at the end of his last contribution to the noble Lord, Lord Browne of Ladyton, the Minister talked about the importance of procedural change. This amendment is about procedural change. The committee got frustrated at times because to us the single most important thing was cost and bringing this legislation to literally millions of people who are at present prevented from getting coverage by the law. I will not take the time of the Committee at this late hour to read into the record the evidence that the Minister gave when he came, but we were encouraged that he was of a similar mind to us. The Government have the power to interact with the senior levels of the legal profession and the judiciary to require them to do things. We were hugely impressed by the cost attached to the management structures of the judiciary at this time. They could be streamlined, enhanced and quickened, and all of that pulls down the cost and therefore makes legislation available to millions who at the moment are priced out of the market.
I know my noble friend is going to tell me about the Master of the Rolls. I understand all of that. I have noted very carefully that he hopes to be in a position to press a button of some description by October of this year and I am sure we are all going to hold him to that. But I cannot let this opportunity pass. This looks on the face of it a fairly obscure, perhaps mildly boring, not very important amendment but it may be just about the most important amendment that the committee made and it comes with a lot of feeling, a lot of passion and a lot of importance. If Parliament does not legislate to make remedy available for the millions, it is legitimate to question what Parliament is all about. If my noble friend will accept this amendment and then put his shoulder to the wheel and push aside those who will line up to thwart him in every direction, he will have the thanks not only of our committee, not only of this Committee, not only of the House and Parliament; he will have the thanks of millions and millions of people who will look at our deliberations tonight and think, “It is all very well for them but we do not have any say in this procedure at the moment”. I strongly commend this amendment to the Committee.
Lord Browne of Ladyton
My Lords, on behalf of the Opposition, I wish strongly to associate myself with the amendment tabled by the noble Lord, Lord Mawhinney. It must be possible for Parliament through this Bill to find a conduit to the appropriate Rolls committee to express the unanimous view of Parliament that access to justice in this area must be improved and it can only be improved if we reform the way in which these cases are conducted to reduce the cost and delay of them. I am not entirely sure whether this is the appropriate way to do it and I do not think it matters to the noble Lord, Lord Mawhinney, whether it is. There must be a way of doing that without transgressing on the appropriate separation of powers. There must be some way of getting that message across. It is undoubtedly the case for those of us who have practised before the courts, whether in this jurisdiction or in other jurisdictions, that whether there is a specialist Bar, whether there is a complicated area of the law, whether there are litigants with deep pockets, the one thing that is most important to the efficient conduct of business is the maximum appropriate judicial intervention to concentrate the minds of parties on the real issue and to get them to resolve those issues in the minimum of judicial time. If we can find some way of doing that, while at the same time ensuring that those who do not have deep pockets have a right to redress, we will have done our work. Raising the bar, simplifying and explaining the defences and preparing the best suite of defences the world has ever seen will mean nothing if all we have done is recreate the issues of dispute for the same tediously long processes and complicated debates that eat up vast amounts of people’s time and resources. They also destroy lives—much more quite often than the remarks that were made about them in the first place.
That said, we do not consider the amendment necessary. The rule committee does not operate in a vacuum and civil procedure rules are made by a process that requires the approval of the Lord Chancellor for rules made by the committee. I take it on board; I have been in this job long enough to realise that you have to be careful in the separation of powers that we have in our system between the responsibilities of the judiciary, the Government and Parliament. But that does not mean that Parliament or the Government cannot send the clearest messages to the judiciary. That is why I agreed with the noble Baroness, Lady Hayter, earlier that case management is a major responsibility now for judges, and in this case in particular.
The Government can and do put before the committee proposals for amendments to rules of court. The Lord Chancellor is also able by virtue of Section 3A of the Civil Procedure Act 1997 to notify the committee that he thinks it expedient that rules should achieve a specified purpose, and in such a case the committee must make rules as it considers necessary to achieve the specified purpose. Ministry of Justice officials have discussed the contents of the Bill and related procedural issues with members of the senior judiciary on a number of occasions during the period in which the Bill has developed. Most recently, a meeting has taken place to discuss these issues with the Master of the Rolls, Lord Dyson, who heads the Civil Procedure Rule Committee. The Government will put proposals for procedural changes to support the new Act before the Civil Procedure Rule Committee shortly. Our intention is to ensure that these are in place when the Act comes into force. I hope on that basis that the noble Lord will be prepared to withdraw this amendment.
Lord Mawhinney
My Lords, I offer warm thanks to my noble friend for what he has said. He pointed out that arrangements already exist for the interrelationship between government and the judiciary. That was the point that I sought to make in moving the amendment. No one on the committee, and no one I know, is trying to challenge the separation at the very heart of our democracy; that was not the issue. However, having been told that there are ways in which those who are elected can relate to those who sit in judgment, we took the view that the more that people understood that those ways existed, the more they would be used, the more the Government’s arm would be strengthened and the more people would benefit in their advocacy and involvement.
I reassure my noble friend that he and I are approaching this in exactly the same way. He will notice that I did not table any amendments on arbitration and mediation, which were very much parts of the committee’s report. I did not do so because they are all wrapped up in this question of cost; I mention them now so that he will not forget them when he reflects further on how best to reduce costs. Very much in the spirit that he has outlined the issue, in which I wish to share, I beg leave to withdraw the amendment.
Lord Mawhinney
“Reporting to Parliament
The Secretary of State shall report to Parliament annually on the codification of this Act; and in particular on its impact on accessibility and clarity of the law.”
Lord Mawhinney
My Lords, I feel, on a personal level, the need to start, not exactly by making an apology, but by recognising that I have been playing far more of a role in this Committee than my record over 30 years in Parliament would have caused anyone to anticipate, or than I would find comfortable. I have interpreted my responsibility as chairman of the Joint Committee in carrying through the work of the Joint Committee to this Committee so that when the government Bill did not cover what we recommended I could at least draw the issues to the attention of this Committee. In that sense and spirit I move my last amendment; I am probably as pleased to be at the end of the process as much as the rest of your Lordships are.
We were conscious that we were doing two things. Defamation seems to be one of those areas of law where the common law has prevailed. What has been codified has been minimal, and judges have been left to move the thing forward. The argument for that has been the great flexibility of common law. We got evidence that not many people understood the common law and that there was benefit for the citizenry to have more codification in this area than has traditionally been the case. Hence this final amendment, to set out some help: to ask the Government to help people to understand the codification, what is left of the common law, and what more might be usefully codified and then to undertake to report to Parliament annually, so that all of us can see that as what is agreed in Parliament is implemented, so the public benefit. I thank my colleagues for their patience and, for the last time, invite them to allow me to move the amendment.
Baroness Hayter of Kentish Town
My Lords, the Committee has heard from me before, as has the House at Second Reading, on my admiration for the concentration of the noble Lord, Lord Mawhinney, both on the ordinary citizen—particularly in Peterborough—who might get caught up in a libel case, whether as claimant or defendant, and also on the need of anyone involved to be able to read and understand the Bill after enactment without the need of lawyerly guidance, as he has just outlined. This is his final throw and we should support him.
We do not want the courts to so run away with interpretation and reinterpretation of the Act that a simple reading of it would give very little guide to the current law on defamation, so nuanced will it have become in learned judgments. I imagine that the noble Lord, Lord Mawhinney, would want Parliament to come back to this at that stage and say, “Look, the Act no longer represents the law; we should amend it”. We concur completely with his desire that untutored people should know their rights and their duties in regard to defamation and we hope that the Government can respond positively to the amendment.
In the mean time, as we close this part of our scrutiny of the Bill, I thank the Lords Deputy Chairmen who have guided us through procedures; the Bill team, who have assisted us throughout, both here and in other meetings, for their patience; the Ministers for their mostly good humour and occasional cheekiness; and our colleague, Sophie Davis, for keeping my noble friend Lord Browne and myself as close to the straight and narrow as was in her ability to do.
Lord McNally
But, my Lords, that is exactly what will happen. There will be post-legislative scrutiny within three to five years of this Act passing.
Lord Mawhinney
My Lords, I salute my noble friend the Minister. I thank him and the noble Lord, Lord Ahmad. We as a Committee have been well served by the Ministers. They have undertaken to reflect on what has been said, and I have the confidence to believe that a little of what was said that initially did not please them may turn out eventually to be slightly more persuasive than originally they may have thought. I look forward to Report and I make a promise to colleagues that I shall not be as visible then as I have sought to be here. I seek leave to withdraw the amendment.