Defamation Bill

Lord May of Oxford Excerpts

Wednesday 19th December 2012 Grand Committee

[Lord May of Oxford]

I suspect that I am the only non-lawyer around the table but I wish to express my enthusiasm for the amendment.

[Lord Phillips of Sudbury]

My Lords, I should be interested whether the Minister who is to sum up can tell the Committee whether there has previously been a conspiracy of judges frustrated in the manner that we have seen today.

--- Later in debate ---

[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.

[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.

--- Later in debate ---

[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.

[Lord May of Oxford]

Would the Minister’s decision have been difficult if a huge sum of money had hinged upon it?

[Lord McNally]

I was just going to pay the noble Lord, Lord May, a compliment. When he spoke about the fact that some of our colleagues are noble and learned, I was thinking that that goes with the rations, whereas I think that he is extremely learned, and that goes with reputation. I am not sure who he was thinking would take such a sum of money.

[Lord May of Oxford]

It is a question of solving the Simon Singh problem. However well we draft the legislation, if the hurdle is not high enough to justify—

[Lord McNally]

This is interesting. There is a suite of protections in this legislation, and I want to test it. I have had Simon Singh say to me, “Oh, this wouldn’t have protected me”. First, I have been here long enough to realise that you cannot draft law for one particular case, nor can you deal with particular circumstances that may have ratcheted up. However, what I want to do, and I mean this absolutely sincerely—I look particularly at the noble Lords, Lord May and Lord Bew—is to be able to meet senior academics and scientists and for them to say, “Yes, this does help”. This is the process that we are going through now. I hope that what the noble Lord, Lord Brown, referred to as the suite of protections that are built into the Bill will give a lot more protection to what we are doing.

To clarify the editorial matter, editorial discretion is not just about editors. The courts have used the term to refer to matters of judgment about how a story is presented, its tone and its timing. The courts recognise that there may be legitimately different views about this and that some allowances may be necessary but we do not think that publishers’ discretion is any clearer. Under the Government’s amendment, the courts will already need to look at the reasonable belief of the publisher. The reason we also proposed amendments referring to “editorial judgment” was to put this in the Bill to respond to concerns that we were not sufficiently reflecting Flood. It is better to use the language of Flood. At the same time, I can assure the Committee of our view that the term “editorial” is not limited to editors or newspapers. It is a more flexible term that leaves it open to the court to develop as necessary.

The noble Lord, Lord Phillips, wanted a clarification of “reasonable belief”. That phrase brings out more clearly the subjective element of what the defendant believed at the time, while retaining the objective element of whether the belief was a reasonable one to hold. I hope that that clarifies the matter; I shall read through it a few times myself over Christmas.

However, let us also be clear. The noble Lord, Lord Browne, referred to us introducing a liberalising defence, and the noble and learned Lord, Lord Brown, made this point. Yes, we are lifting the bar or moving the goal posts, as the noble and learned Lord, Lord Brown, helpfully explained as regards his thinking in the Flood judgment. There is a lot of talk about attempts to shackle the press; a lot of it is misguided. However, Clause 4 is a genuine attempt to strengthen freedom of speech and should be seen as such. The noble Lord, Lord Triesman, among others, raised important issues about the public interest. It remains the case that it will be for the court to determine the first limb of the test; that is, whether the statement complained of was, or formed part of, a statement which was a matter of public interest. Again, the noble and learned Lord, Lord Brown, helpfully let us into his thoughts on this matter.

That is a matter that we must think of. The noble Viscount, Lord Colville, and the noble Baroness, Lady Bakewell, explained to us what the responsible journalist does in these matters. The noble Lord, Lord Triesman, rightly reminded us of the question of what to do when the intention of the publisher or owner is to destroy a reputation. Do we give impunity to that? That is why, when our friends in the Libel Reform Campaign come close to asking for a blank cheque, I have to say that we cannot give it to them. We also have a responsibility, as well as a recognition that there is irresponsible publication.

We are moving on to new media, and my noble friend Lord Lucas will be pleased to know that that is another hospital pass that I have left for my noble friend Lord Ahmad. I would say to Twitterers the Twittering equivalent of “caveat emptor”: “Twitterer beware”. Twittering is not beyond the law. We somehow got the idea that new media is a law-free area. People are going to find that it is not.