Defamation Bill [HL]

Lord McNally Excerpts

Friday 9th July 2010 Lords Chamber

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, there were once two cows looking over a fence when a tanker passed by. On it was written, “Drink Co-op milk—pasteurised, sterilised, homogenised”. One cow turned to the other and said, “Makes you feel plumb inadequate, doesn’t it?”. [Laughter] That is something of my feeling today, following this debate that has had such a galaxy of talent and a plethora of learned noble Lords, all with their usual fluidity. I will make some effort to respond.

I was pleased by the approach of the noble Lord, Lord Bach. I, too, shared some interest in the thought of my noble friend Lord Lester as the Earl of Leicester. I sent out for clarification because I could not remember if he was one of the Virgin Queen’s friends who came to a sticky end. I am assured, however, that he did not and that he died peacefully, so at least my noble friend has that encouragement.

I acknowledge that the previous Government did a lot of groundwork in this field. We are building on that. I understand the noble Lord’s desire to examine some of the details of my noble friend’s proposal. I hope that I can make some suggestions on how we can do that.

Before that, I express my personal delight that both maiden speakers today are old friends. It was a delight to hear them both make such excellent speeches. It was interesting to find out from the speech of the noble Baroness, Lady Hayter, how many of us have Fabian pasts—almost as interesting as hearing of some of the previous jousting of the legal profession. I say to the noble Baroness that when I set out in politics, my ambition was to one day be on the government Front Bench sitting next to an athlete. I admit that I did not think it would quite work out this way. That just shows that you never can tell.

The noble Lord, Lord Willis, was just as good as I knew he would be. He brought his amazing experience to the House, not least on science and technology issues. It was also a first for me: it was the first time that I heard a Yorkshireman say that he was modest. That is almost a contradiction in terms. My noble friend Lord Shutt is at this moment outing him as a Lancastrian. Is that true? Oh my God. Now I understand his modesty.

There have of course been ample and justified tributes to my noble friend Lord Lester. So many important pieces of legislation over the past 40 years—the Human Rights Act, the forced marriages Act, the Equality Act and so on—have had his fingerprints all over them. As a parliamentary reformer, he has a Wilberforce-like tenacity in pursuing the causes that he espouses. With his track record, the prospects of a defamation Bill reaching the statute book are high indeed. My noble friend rightly paid tribute to his colleague, Sir Brian Neill, and Heather Rogers QC, who have helped him in producing this formidable piece of work.

Today’s debate has been extremely interesting as part of what the noble and learned Lord, Lord Woolf, termed the great debate between freedom of speech and the rights of the individual. Several noble Lords, including the noble Lords, Lord Goodhart and Lord Pannick, and the noble Baroness, Lady Kennedy, and many others, referred to this tug in the task ahead of us. I was pleased that the noble and learned Lord, Lord Woolf, said that because of the tension between those two objectives, it was right that government and Parliament should now take the initiative in trying to get this balance right. A constructive process of reform usbis what he called for and what I hope we can respond to.

The noble and learned Lord also mentioned another theme that has come through—that of cost. The noble Lord, Lord Bach, referred to it as the elephant in the room. It has to be addressed. Again, many noble Lords referred to this. We are urgently assessing the recommendations from Lord Justice Jackson’s report. We will try to come forward with proposals as quickly as possible. I am not sure we will follow the suggestions which the previous Government tried to get through before the election. I am not sure that that is exactly the road that we will go down. However, the way that Lord Justice Jackson and the previous Government approached these matters clearly identified that this is a key issue in this area and one that we have to get right, even if their solution to how costs should be paid was not exactly the right one. It certainly did not receive favour before the election but we are considering it urgently.

I give the usual ministerial health warnings at the beginning of a response to a Second Reading of a Private Member’s Bill. The Government will not oppose giving the Bill a Second Reading. Indeed, we welcome its introduction. As the noble Lord, Lord Lester, has indicated, my department and I have already benefited from discussion with the noble Lord and his team on this matter. We will also benefit greatly from the quality and diversity of noble Lords’ contributions today. I used to say about the distinguished crop of QCs on the Liberal Democrat Benches that if I had to pay them, I could not afford them. That is doubly true of the wealth of experience made available to us today.

I am afraid I cannot agree with the noble Lord, Lord Ramsbotham, however, that the Government should simply adopt the Bill. What I say later will, I hope, reassure him that that is not a way of avoiding action—quite the opposite. My hope is that having received his Second Reading, the noble Lord, Lord Lester, will give me and my advisers time to digest what has been said today. We will then embark on a wide range of consultations over the summer to take stock. When the House returns in the autumn, we will have made considerable progress on a draft government Bill, which we hope to publish early in the new year and make ready for pre-legislative scrutiny. As I say, this is not a vague promise of better things to come, but a firm commitment to action on this matter. Such a timetable would give us a strong case for making time in the 2011-12 legislative programme for a substantive Bill. Old parliamentary hands will know that even in that form of words, it is positively daring—certainly for a Minister of my rank—to suggest such a thing. I hope the noble Lord sees that as a sensible and speedy way forward.

We recognise the concerns that have been raised over recent months about the detrimental effects that the current law may be having on freedom of expression, particularly in relation to academic and scientific debate, the work of non-governmental organisations and investigative journalism; and the extent to which this jurisdiction has become a magnet for libel claims. These are all matters that have been covered in this debate. In reviewing the law, we want to focus on ensuring that freedom of speech and academic debate are protected and that a fair balance is struck between freedom of expression and the protection of reputation. We want to ensure that the right balance is achieved so that people who have been defamed are able to take action to protect their reputation where appropriate, but that free speech is not unjustifiably impeded. We believe that this will help to ensure that responsible journalism and academic and scientific debate are able to flourish, and that investigative journalism and the valuable work of non-governmental organisations are not unjustifiably hampered by actual or threatened libel proceedings.

I wish to respond briefly to specific points raised in the debate. The noble Baronesses, Lady Young and Lady McIntosh, referred to Mumsnet. Our law in this respect may have been developed to meet the needs of a past age. Noble Lords have referred to the internet and the convergence of media. When we conduct consultations over the summer we will want to talk to internet providers to explore their concerns. Mumsnet is welcome to express its concerns to us to explore how they can be met in legislation.

I was grateful to the noble and learned Lord, Lord Hoffmann. It was worth the entrance fee to see the jousting between him and the noble Lord, Lord Pannick. At times, you could see going through the mind of the noble and learned Lord the thought, “If ever I got you before me, young man, I’d show you a thing or two”. However, it was interesting to hear the warning about what the American legislators are up to. I have asked my department to request the embassy to let us have its thoughts on that and what implications it has for us.

The noble Lord, Lord Thomas of Gresford, and others mentioned the super injunctions. The Master of the Rolls has a committee looking at their implications and we await its report. Interesting comments were made about libel tourism. Some think that it is much exaggerated while others consider that it is a real threat. We are aware that simply identifying cases does not present a full picture. We are worried about the so-called “chilling” effect and are keen to give careful consideration to ideas for improvements that could be made to address libel tourism, including those put forward in Clause 13 of this Bill.

I was very interested in the intervention of the noble Lord, Lord Hunt. We are looking at a greater use of mediation not just here but in other areas of law. This should be developed further. It is well worth pursuing, and not just in this Bill. The Government should pursue it in other areas.

The noble and learned Lord, Lord Hoffmann, the noble Baroness, Lady Kennedy, the noble Lord, Lord Thomas of Gresford, and others referred to companies suing for libel. As part of our review of defamation law, the Government are considering whether the ability of corporations to sue should be limited in any way. We recognise the important point that NGOs have raised about the problems that they are encountering due to the threats of libel proceedings by large corporations. Clause 11 gives us substantial food for thought and will be helpful in those considerations.

The noble Lords, Lord Triesman and Lord Bew, said that the public-interest defence might need further work. We agree. There is a case for codifying it, but we want to hear more opinions about how that can be done.

Although there is considerable thought that parliamentary privilege should be covered in the Bill, there are also concerns that we want to examine further, including with my noble friend Lord Lester.

The noble Lord, Lord Triesman, asked us to refer the Bill to the Law Commission. I am afraid that if I said yes, it would confirm all the worst fears of the noble Lord, Lord Ramsbotham, that we would be engaging in delay. I am an admirer of the Law Commission and we will take any advice that we receive from it on this issue, but given the work that has been done by my noble friend Lord Lester and by the previous Administration, and given the amount of consultation that we want to consider over the summer, the way ahead that I have proposed is to move as quickly as possible to a full government draft Bill which can go into pre-legislative scrutiny with a possibility of legislation in the second Session of this Parliament. That matches the advice that we have received from a number of causes—not to rush our fences, but not to embark on endless delay. I think that we have got the right balance.

I was very interested in the contribution of the noble Baroness, Lady Buscombe. I know that her work has involved trying to get the Press Complaints Commission into shape. I welcome that. She will know that I am not the greatest admirer of the PCC. I have often said—and I said more than 10 years ago in a debate in this House—that the PCC does a good job in 98 per cent of its cases; in the 2 per cent of cases when the media see advantage, money and profile overtaking the code, the code goes out of the window. But by its deeds we will judge it. The noble Baroness has set herself a task of making self-regulation work, with public confidence, and I wish her well in that. When the owners of newspapers and journalists see entrapment and illegal activity as demeaning of their profession and damaging to the long-term interests of the media, we will all be in a good place.

The noble Baroness also threw up the challenge of the convergence of the media, which perhaps requires other parts of the media, outside the realms of the PCC, to consider coming under its code. This is certainly an interesting area that is not central to the Bill, but important to it.

Perhaps I may repeat that although the debate has to a certain extent been a lawyer fest, as the noble Baroness, Lady Young, pointed out, it has also been of value that a number of either lapsed lawyers or noble Lords who have never been lawyers have participated and brought an extremely important dimension to this task. The noble Lord, Lord Bew, pointed out the dangers to academic, not just scientific, work. The contributions by my noble friends Lord Taverne and Lord Willis warned of the dangers to scientific commentary and the testing of scientific views. The noble Baronesses, Lady Hayter, Lady Young and Lady McIntosh, pointed out that the creative industries and the arts are influenced by this issue.

It is not possible for me today to indicate exactly what provisions will be included in the Government's promised draft Bill on defamation because of the ongoing consultations to which I referred. However, a number of areas have already been subject to much discussion and I confirm that we will give further consideration to them with a view to including provisions in the draft Bill. In particular, we recognise the strength of the calls that have been made for a statutory defence relating to the public interest and responsible journalism. This is a complex area of the law and we want to give further consideration to whether and how a statutory defence can be framed in a way that is beneficial and appropriate for a range of contexts. Clause 1 of the noble Lord’s Bill provides a very valuable starting point for those considerations.

We recognise also the criticism that English defamation law has received because of the perception that libel tourism has flourished. The approach adopted in the noble Lord’s Bill offers us helpful food for thought. The Bill also includes provisions relating to multiple publications in defamation proceedings. We recognise the concerns that have been expressed in the media and elsewhere about the difficulties that the multiple-publication rule, whereby each publication of defamatory material gives rise to a separate action subject to its own limitation period, causes in relation to online material. We will consider how best to frame a single-publication rule to remove the threat of open-ended liability that currently exists. Again, the Bill provides a very interesting approach.

In addition to the areas that I have mentioned, the noble Lord’s Bill represents an extremely valuable first step in identifying a range of issues in respect of which reform will be beneficial. In particular, the Bill takes in provisions on renaming and codifying the existing defences of justification and fair comment; on the basis on which an action for defamation can be brought; on the ability of corporations to bring defamation actions; on trial by jury—the contribution of the noble and learned Lord, Lord Woolf, was very interesting and gave further justification for why we need further consultation on this matter; on defamation in the context of internet publication; and on issues relating to absolute and qualified privilege, including parliamentary privilege. These are all important issues that merit further consideration in the context of the Government’s review.

Ensuring that the right balance is struck is a difficult and sensitive exercise. It raises very complex issues on which a wide range of differing views are likely to be held. We believe that it is important to ensure that the views of all interested parties are taken into account before we move further. As I have said, we therefore intend initially to conduct informal discussions with all interested parties to ensure that we can reach a fully informed assessment of the merits of reform in those areas, and on any other issues that may be of concern. In the mean time, we wish the noble Lord’s Bill to have a Second Reading, on the basis that we are listening to those who are enthusiastically in support of it and to those who have constructive criticisms. We recognise the considerable expertise in this area of the noble Lord and his advisers, and the extensive consideration that they have given to these issues, and we are keen to co-operate further in taking matters forward. Following the informal consultation with interested parties that I have outlined, I hope that I and my team will hold further discussions with the noble Lord, possibly immediately after we return after the Recess. I hope that on the basis of our firm intention to publish a draft Bill in the first Session and our commitment to take the matter forward on a co-operative and timely basis, the noble Lord will feel able not to pursue his Bill further at this time.

We have had a debate of much wisdom and wise advice. We are not rushing to legislate, but considering very carefully how to proceed. The way ahead that we have set out reflects the sense of urgency that has been present in this debate, but also has the right balance of caution that has been another underlying theme. I hope that the Bill gets its Second Reading and look forward to the noble Lord's response.