Defamation Bill

Lord McNally Excerpts

Tuesday 15th January 2013 Grand Committee

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

My Lords, the reason I buried my head in my hands is that the noble Lord, Lord Lester, explained before the Committee started that ill health was going to prevent him from intervening very often in our proceedings today—a resolution that lasted all of five seconds. I am grateful to the noble Lord, Lord Browne, both for the intervention and for drawing this to my attention. I will have the matter examined and report back to the Committee.

[The Deputy Chairman of Committees]

We now resume debate on Amendment 23A.

Clause 5 : Operators of websites

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Moved by

[Lord McNally]

28: Clause 5, page 4, line 8, leave out from “section” to “House” in line 9 and insert “may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each”

[Lord McNally]

My Lords, I do not in any way want to provoke the Committee, but I am pleased to see that my noble friend Lord Lester is leaving, due to the stimulus of the debate.

[Noble Lords]

Oh!

[Lord McNally]

No, I do not want him to stay; I really think that he should go back to his sickbed, although his recovery during the course of the debate was significant. He said, “This short debate” but I humbly refer the Committee to the fact that our two debates today on a single clause of the Bill, which we have still not yet completed, have taken us two hours and 40 minutes in a 17-clause Bill, of whose Committee stage we are on day three of four.

[Lord May of Oxford]

This gives us some idea of why legal costs are so high.

[Lord McNally]

I hope that Hansard noted that comment from a sedentary position and the general approval from the non-lawyers in the Committee for that observation.

At some stages during those debates, as a non-lawyer, I thought of John Wilkes, the famous radical. When he was about to publish his newspaper, the North Briton, he was asked by a French acquaintance, “Is the press free in your country?”. “I am about to find out,” said Wilkes. I think, having listened to this debate, that in some respects the internet is going to find out whether or not it is free. My noble friend Lord Mawhinney asked me where we were with regard to balance. It is not a question of balance between right and wrong, but the debates that we have had today show that there is a balance.

One of the great things about continuity in this House is that I was on the pre-legislative scrutiny committee that looked at the Communications Bill, where we deliberately advised against trying to legislate for the internet. On reflection, I think that we were right. My noble friend Lord Phillips said that he was on the side of the little man. On reflection, one of the greatest boons to the rights of the little man over the past decade or so has been the worldwide web and its freedoms. While I hear the passion and the righteous indignation of those who have been defamed and hurt, we as a Committee have to be careful not to overlegislate something that on the plus side has some considerable benefits for the little man.

That was a complete abuse of procedure, because I am moving a government amendment of some simplicity. It was also because I am wracked by guilt: at one point during the debates, the noble Baroness, Lady Hayter, helpfully sent me a note saying, “Are you on holiday?”. The truth is that when we were setting out who was going to handle what, I thought, “Clause 5 will be a nice snappy debate, since my noble friend Lord Ahmad—although he is learning disturbingly fast—should be given some experience of Bill-handling”. Little did I realise that he was going to have such a baptism of fire.

Amendment 28 provides for the affirmative resolution procedure to apply to the scrutiny of the regulations to be made under Clause 5 of the Bill, rather than the negative resolution procedure as the Bill currently provides. That is in the light of views put forward on this issue by the Delegated Powers and Regulatory Reform Committee, the Joint Committee on Human Rights and others. The affirmative procedure will ensure that the regulations receive more thorough parliamentary scrutiny. I hope that, as such, it will be acceptable to this Committee and to the House. I beg to move.

[Lord Lucas]

My Lords, I am very grateful to my noble friend for that explanation. Our noble friend Lord Ahmad has been doing a superb job, and I have been immensely impressed. I had assumed that my noble friend Lord McNally was silent because he was serving time in the penalty box after voting against the Government yesterday.

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[Baroness Hayter of Kentish Town]

This is an interesting one, particularly in respect of the use of the word “unattributed”, as opposed to “anonymous”. It seems to signify that you are looking at attribution, which may be to a group or something like that, and that it is about trying to find out who was responsible for this without necessarily naming them; I mean that it is about method, not necessarily the actual name. We are interested in the Government’s response to this, because it clearly highlights an ongoing view that what we do not want from the Bill—any more than we want what the noble Lord, Lord Lester, is afraid of—is to give a signal that the more anonymous the better.

[Lord McNally]

My Lords, I am grateful for this debate. The more I listen to it, the more I realise that we are, consciously, going into unknown territory. As I said previously, we are taking a different approach from that we took 10 years ago with the Communications Bill, when the Government of the day, and Parliament as a whole, took the view that the internet should be left free for us to get the full benefits. Within the judgment of history that was probably the right thing to do. It allowed the massive growth of initiative and new companies and services, and the liberating effect I referred to for the individual citizen.

The most hopeful thing that I have heard today, because I respect his knowledge of this sector, is my noble friend Lord Allan’s comment that we should not follow a counsel of despair. That gives me great encouragement. There are, as has been said a number of times, those who say that the internet is beyond any single parliament or jurisdiction to control, and it is a global phenomenon that will just roam free. I do not believe that there are any man-made institutions which cannot be brought within the realm of governance, particularly democratic governance.

We face balances and different arguments. I have been in debates where the whistleblower has been the hero. The noble Lord, Lord May, has pointed out that, quite often when talking or trying to criticise, it is the powerful vested interests—not just the internet companies—that will try to close down criticism by intimidating the means of that information being disseminated. I am determined to try and get this right, but I am aware that we are going into areas where there are upsides and downsides to whatever we do.

I know of my noble friend Lord Phillips’s lifelong commitment to defending the rights of the little man, but I fear overlegislating in this area. We are just emerging from a debate in which it was suggested that our libel laws have become a bonanza for lawyers. I am worried that, in the concern to deal with some of the problems that have been raised, we might create another bonanza for lawyers. I sincerely believe that the contribution of lawyers to this debate has been extremely helpful, but I ask for time to study this debate in Hansard. As my noble friend Lord Phillips said, we have spent nearly five hours on this clause, and rightly so. It is the one in which we are going into untested territory. I want to see how it stands up to the criticisms that have come from both sides.

Amendment 30 goes much wider than issues of defamation, and is therefore beyond the scope of the Bill. It relates to broader issues concerning how the internet could and should be regulated. However, even if this new clause were to be limited only to defamatory material, it has been suggested that there has always been a tradition of being able to publish comment under pseudonyms or anonymously. My noble friend Lord Mawhinney has suggested that we should try to build some change in that culture, so that people are willing to put names to their criticism, and that that is a way forward. However, the practice is widespread. Like my noble friend Lord Lucas, I quite often go on to sites about hotels and restaurants where you get the most insulting comments about the levels of service, and sometimes they are very helpful when you are making your decision. It is also true that in the vast majority of cases it is entirely unproblematic; the hotels and restaurants live with the good and the bad, and leave it to common sense.

My noble friend Lord Mawhinney said that this was a probing amendment. It has produced strong arguments on both sides. I would like to study this issue. I also take the point about the consultation. The paper that noble Lords have received is not going to be very different from the consultation, but I understand the point made by the noble Lord, Lord Browne of Ladyton, that he would like to join the game as well. I am going to look at what we can do in that respect.

It is obvious that we have to get this into better shape by Report. We have only four or five months until the end of this parliamentary year and, at the pace that we are going, we will need every day of that. I will take this amendment away in the probing spirit in which it has been moved; indeed, I will take the whole debate away. I have already agreed bilateral discussions on specific issues of concern with a number of colleagues, but I will see if there is some other way of bringing together a fuller debate on the contents and direction of the guidance. In that light, I hope that my noble friend will agree to withdraw his amendment.

[Lord Mawhinney]

My Lords, I thank my noble friend for his helpful response. I would like to start where he finished. I particularly welcome the fact that he said that after he had given it serious consideration, he would produce something relatively definitive by Report. That is absolutely right, and it is extremely helpful. If I have learnt anything about this issue, it is that if we get it right in one go, we will be lucky rather than seriously impressive. That means something reasonably definitive on Report, which would allow for a second bite of the cherry at Third Reading, were that to prove necessary. I welcome what he has said, and I encourage him to continue with that thought.

We have had an interesting debate. I am grateful to my noble friend Lord Phillips; part of our experience as a committee was that it was hard to find people to identify with the little man. The organisations were well organised, powerful, articulate and pressured, so part of our work was always to try for the elusive balance that we have talked about today. He has helped us enormously, as did the suggestion from my noble friend Lord Lucas about some sort of intermediate step, and I hope that he will think further on that.

I admit to being surprised that the Joint Committee should have taken China into consideration, and I apologise to those who feel that we were too constricted in our view. I have never been called a little Englander, nor even a little Irelander, so I apologise. I understand the point that my noble friend Lord Lester, was making, but I have to be honest and say that this is complicated enough without worrying what other countries are going to use as an excuse if and when we come to a judgment. That is not meant to be in any sense a little Englander type of comment.

At the end of the day, people’s reputations are on the line. We have already established that the cost of trying to get behind anonymity or lack of attribution goes against one of the principles of the work that the Joint Committee did, the work of which is shared by Members on all sides of this Committee. I thank my noble friend for his response and I beg leave to withdraw my amendment.

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[Lord Phillips of Sudbury]

My Lords, I strongly support this group of amendments in the name of the noble Lord, Lord Hunt. I am sure that all the academics at the University of Essex, of which I am chancellor, would be cheering on their stools if they could hear this.

I just have one question for my noble friend Lord McNally, which may seem rather an odd one. This is all built around scientific or academic journals. That seems an odd pairing to me because I would have thought that most scientific journals were academic journals, although not vice versa. If there is to be a careful consideration of the terminology in the amendment tabled by the noble Lord, Lord Hunt, which I think is necessary and indeed essential, the Minister might consider whether or not “scientific or academic” is the happiest wording, as if one excluded the other.

[Lord McNally]

My Lords, the more that I hear about academia from the noble Lord, Lord May, and about the law from other Members, I am glad that I am in such a straightforward profession as politics.

This debate, again, has been extremely helpful. I worry, as I think a number of contributors have, that if the concept of “journals” includes those online, there is a question of how and where it stops. That is why we have tried to consult on this issue. It is interesting that when the legislation was first put forward by my noble friend Lord Lester, he did not make any provision for the protection of scientific journals, but particular concerns were expressed about the impact of the threat of libel proceedings on scientific and academic debate. We therefore believe that the addition to the general protections offered by the Bill of a specific defence of peer-reviewed material is appropriate. Other aspects of the Bill and work associated with it, such as the serious harm test and actions on cost protection, will also help to support free speech in these areas.

Let us be clear: right from the start, I wanted to provide protection for genuine academic and scientific debate. I have to say to my noble friend Lord Phillips that “academic and scientific” is a term that is generally understood—it does not mean the Beano. People know one when they see one. Within that, there is also the important context that we are looking for genuine peer review, which, again, is understood. I worry, as I think the noble Lord, Lord Bew, does—I will also be interested in the response from the noble Lord, Lord Hunt, to the specific questions—that we must not push the envelope too far on this, otherwise we will run into some of the problems that the noble Lord, Lord Browne, raised. We are right to be cautious.

As I say, the issue featured prominently in our discussions with the scientific community. We also held discussions with the editors of all the key journals to ensure that appropriate conditions were attached, so that the clause applied only where responsible peer-review process was used. We shared the relevant aspect of the clause with those editors to confirm that this was achieved.

Amendment 31 would extend the defence to peer-reviewed material on,

“a website edited and controlled by a chartered professional or learned body”.

We are concerned that this would make the defence too widely available. We believe that it is important to ensure that only bona fide publications with appropriate procedures are given the protection of the new defence. That is why we have focused the clause on scientific and academic journals, where there is a well established process for peer review. I can confirm that the existing clause would cover peer-reviewed material that was published by such a journal in an electronic form. However, a potentially wide range of bodies may fall within the categories proposed by the noble Lord, and we are concerned that this would extend the defence into areas where peer review is not a common practice. That may lead to the defence being available in instances where it is more likely that the peer-review process will not have been applied sufficiently robustly.

The other substantive amendment in this group, Amendment 35, would privilege any assessment of a peer-reviewed statement’s scientific or academic merit if it was written by one or more persons with expertise in the scientific or academic matter concerned and was approved by the editor of the journal or website. This would appear to be aimed at extending the defence to statements such as replies to or commentaries on peer-reviewed material without the requirement that they themselves be peer-reviewed. Again, we consider that this would extend the scope of the defence too widely.

I was asked a couple of specific questions. The noble Lord, Lord May, was worried about the meaning of “malice”. We would expect courts to use the same test as applied in other forms of qualified privilege; that is, a defendant would forfeit the defence if they could be shown to have acted with ill will or improper motive. On the points made by my noble friends Lord Phillips and Lord Lucas about the term “scientific and academic journal”, we believe that the term is widely understood and that a definition of “journal” is unnecessary.

I think that I have covered the points raised; indeed, I think that some of the most pertinent questions were addressed to the noble Lord, Lord Hunt, who may take the opportunity to make a brief reply. However, as the noble Lords, Lord Browne and Lord Mawhinney, invited us to do, we will look at this matter. As I said in discussion with the noble Lord, Lord May, I genuinely want to get this legislation right for the scientific and academic community; indeed, it is one of the most important challenges for the legislation. I am certainly willing to examine whether we have got our definitions and our scope exactly right, and I welcome the debate that the noble Lord has provoked with his amendment. I ask him to withdraw it.

[Lord Hunt of Chesterton]

I thank noble Lords for their very constructive response. I want to emphasise the respective memberships of the institutions which wrote to me. The Institution of Civil Engineers has 80,000 members; the Institute of Physics has 45,000 members; the Institution of Chemical Engineers has 35,000 members; the Institution of Mechanical Engineers has 100,000 members; the Institution of Engineering and Technology has 150,000 members; the Royal College of Physicians has 30,000 members; and the Institution of Agricultural Engineers has not so many.

I have published papers in the scientific literature and for those institutions, and I can tell your Lordships that the standard of refereeing in most of our engineering institutions is extremely high. There are excellent scientific journals, but there are an awful lot of scientific journals with peer review in them that are pretty poor. That is why I was surprised that the clause as originally drafted set no quality level for the journals; no quality level has been supplied. It is not as if these are journals of institutions. The quality level that I want to introduce for the websites—“chartered”—is a great deal higher than is the case for the journals.