Defamation Bill

Lord Morris of Aberavon Excerpts

Tuesday 9th October 2012 Lords Chamber

[Lord Morris of Aberavon]

My Lords, I apologise for being a little late and mistiming my arrival from my Millbank office. This is an important reforming Bill, even if it does not set the Thames on fire. As my noble friend Lord Browne of Ladyton reminded us, good work was commenced under Mr Jack Straw and continued by this Government. There have been important contributions from many bodies. Above all else, I pay tribute to the energy and scholarly pursuit of the subject by the noble Lord, Lord Lester, without whose work we might not be debating this issue today at all. We have all benefited by the publication of a draft Bill and the subsequent consultation. In the committee, we valued the heavy lifting done by the noble Lord, Lord McNally. Contrary to the surprise expressed in the Commons, Governments of different hues do pursue Bills whose groundwork has been done and prepared by previous Administrations.

On this occasion, Parliament took the wise course of setting up a pre-legislative committee, from both Houses, on which I served. The substantial unanimity on the need for reform that already prevailed was consolidated by the unanimous report of the committee under the wise chairmanship of the noble Lord, Lord Mawhinney. The noble Lord and the committee were able to deliver on time. The committee was fortunate in his leadership. It had a formidable task. None of us, I believe, was a leading expert in this rarefied field of law. My only experience, as a lifelong criminal practitioner, was advising on one case of defamation alone in my whole career. Perhaps this was a good thing. But throwing a discrete subject like this into the laps of parliamentary colleagues— however distinguished—was a heavy burden to tackle. There is a general belief in favour of pre-legislative scrutiny but it comes at a price. We sat for 18 sessions from April to October, and each session entailed considerable preparation. It may be an indication of how much time was saved to Parliament that the Commons disposed of it in five sessions of Committee. I do not propose to make any Committee points, but will concentrate on the broad thrust of some aspects of the Bill. We shall return in due course to look at some of the valuable comments made and some of today’s observations from the noble Lord, Lord Lester.

I welcome the Bill now, as I did in the committee, and give it my support, subject to what I have just said. Its object is to simplify the law of defamation and to make the law more transparent and more accessible, laying the ground for reducing the stratospheric and chilling state of costs in that field of litigation.

The Bill’s twin aims are to protect freedom of speech and at the same time provide adequate protection for reputation. It also seeks to come to terms with the technological developments of our age. The man or woman in the street needs easy access to the law, hence the observations of the noble Lord, Lord Mawhinney, that he prefers statute to common law. That may be so, but we should seek to ensure that the burdensome costs of bringing and defending actions, particularly cases brought by the powerful, are made more tolerable.

In addition to legislation, a great deal can be achieved by the reform of court procedures and stronger, earlier case management by our experienced judiciary. This should be strongly encouraged. The missing link in this debate, which we have been told about already—the lacuna—is the lack of publishing of regulations and the Civil Procedure Rules necessary to achieve this. The Government have had enough time to lift this veil. It is a serious criticism which should be remedied before too long; we should know what they have in mind as regards the regulations and changes in procedures.

Trial by jury has now to all intents and purposes fallen out of use. I remember the time when one of the most senior High Court judges, Sir Michael Davies, presided over most such trials. When the jury came to assess damages, he suggested that if they regarded the damage to reputation to be high, they should think of the cost of a detached house; if moderate, the cost of a medium-sized car; and if comparatively small, the cost of a nice holiday. Such words were a simple guide but, as far as I can recollect, they usually seemed to work.

The very fact of the possibility of a jury trial—remote as it now is—increases the cost of preparation and delays decisions. As part of the process of aiming to reduce costs, it was wise of those drafting the Bill to try to eliminate the possibility even further. In practice, it would no longer be a presumption. The matter will be left to the judges, but there may still be those rare instances—and the committee considered them—where, for example, public figures are involved and judges might find it in the public interest to have a jury trial. I hope that they would be very rare indeed. As one who has spent more than half his life addressing juries in criminal cases, I do not yield one iota in my defence of such a system where the liberty of the subject is at risk. We had some indication in the comments by the Minister that there would be, in effect, no read-across to criminal trials. I am sure that we will get that assurance before the end of this debate; I would value it very much.

The committee wrestled with the problem of definition but could not come up with one save to leave it, as I have said, to the experience of judges and a practice which has hardened over the years. The issue of limiting costs goes deeper. There should be every encouragement to the early determination by a single judge of many of the issues. Where jury trial in a particular case remained on the table, it would fetter their jurisdiction to determine many such matters. The costs implications are obvious. The simplification of the law and the early determination by a judge of issues, including striking out, coupled with the possibility of mediation and arbitration, should go a long way to lower costs.

The draft Bill proposed that,

“a statement is not defamatory unless its publication has caused or is likely to cause substantial harm to”,

a person’s reputation. The committee was persuaded by the noble and learned Lord, Lord Mackay of Clashfern, that there were better words for the initial hurdle that had to be overcome and to include “serious harm”. The Bill now proposes what is hoped would be an even simpler and, equally, a slightly stricter test of,

“publication … likely to cause serious harm”,

on its own. I surmise that there may not be a great deal of difference in practice, but it seems to raise the barrier just a little to the bringing of actions. Only time will tell, but I welcome this formulation, and we will see.

This brings me to an important point of procedure for all pre-legislative committees. It is important that the proposers of a Bill make it clear, in a way that the courts can take into account, when that Bill is seeking to make changes of substance in the law and when it is simply proposing to codify the common law. That is a vital distinction. Such a course would have been a great help to the committee and perhaps to the courts. Having said that, I was perhaps more alarmed than my colleagues in foreseeing the possibility, if not the probability, of litigation on the meaning of some of the words in the Bill. Despite the care and consideration that has been shown in its drafting, I surmise that this is inevitable, at least in the earlier years after it becomes an Act. I suppose that that is the price of any purported reform of the law.

I bear the scars of having assisted in the introduction of the breathalyser Bill in 1967—another inherited Bill—and of becoming one of the architects of a small cottage industry of litigation for a few years. The overriding object of ensuring that people of all backgrounds have access to the legal system should they be seriously defamed is a worthy one. The aim of reducing costs, one hopes, will minimise the chilling effect of the present system, which is out of reach of many people. I welcome the creation of the defences of “truth” and “honest opinion” to replace the common law defences of justification and fair comment. I also welcome the creation of the new defence of:

“Responsible publication on matter of public interest”.

It is new in the sense that it abolishes the common law defence known as the Reynolds defence. We have heard the noble Lord, Lord Lester, today, and recent submissions have been made to many of us. I suspect that in Committee we will have to examine this very closely and see whether it has achieved what the Government had hoped it would. Noble Lords have to pause for only one moment to consider that some of the issues that I have raised may well be ripe fields for litigation.

Lastly, there is a brave attempt in Clause 15 to tackle some of the problems of the internet. In the department’s memorandum prepared for the Delegated Powers Committee of this House, it indicated that provisions for the new notice procedure are likely to,

“be lengthy, detailed and technical and are not considered suitable to be on the face of the Bill … The aim is to provide greater flexibility to adjust aspects of the new procedure in the light of experience”.

As we all know, this is a field of rapid developments, and primary legislation would not cope with what may be the needs of the future.

The committee spent a great deal of time as part of its emphasis on cost savings on early resolution and believed in the development of a culture in which expensive legal action is the last, rather than the first, resort. I cannot improve on the words of the committee dealing with a strict enforcement of the pre-action protocol. It referred to,

“a presumption that mediation or neutral evaluation will be the norm; voluntary arbitration; and, if the claim has not been settled, court determination of key issues using improved procedures”.

I hope that in our consideration, the committee has assisted the Government and the House in what is an important and worthy reform.