Defamation Bill

Lord Morris of Aberavon Excerpts

Wednesday 19th December 2012 Grand Committee

[Lord Ahmad of Wimbledon]

We will take this on board in light of the comments that have been made. I seek the Committee’s indulgence on this. As I said, as ever, some valued points have been made and they will be duly considered. I will write to the Committee on that specific issue.

On Amendment 11A, my noble friend Lord Lucas spoke about Clause 3(4). Amendment 11A would remove the bulk of subsection (4) so that the third condition for the defence to apply would be satisfied if the defendant simply shows that an honest person could have held the opinion. That rather asks the question as to the basis on which they might have reached that opinion. Subsection (4) would simplify the current law. It would give some guidance as to the basis on which the opinion might have been formed, while avoiding the complexities which have made the defence too complicated and technical. The provision as drafted therefore strikes the right balance.

Amendment 12 would change the drafting of Clause 3(6) in a way which the Government do not believe would be helpful. Subsection (6) relates to situations where the “honest opinion” defence is raised but the defendant is not the author of the statement—for example where an action is brought against a newspaper editor in respect of a comment piece, rather than against the person who wrote it. In these circumstances, the defence will be defeated if the claimant can show that the defendant knew or ought to have known that the author did not hold the opinion.

To the extent that Amendment 12 shifts some of the wording in the subsection, it does not alter the effect. However, it also inserts a reference to the statement being published by the defendant in a form which is “substantially the same” as the statement by the author. This would create uncertainty in the law, as it could be read as implying that the defence might be available in situations where the defendant has changed the statement by the author. This is not desirable.

We have looked at specific issues. I return to the points made by the noble and learned Lord, Lord Berwick. I end my comments by again assuring him unreservedly that, while there were shortcomings, no offence was intended in my response. We will write to him fully on the matters he has raised previously and today. I hope that, on the basis of my comments, the noble Lord, Lord Phillips, will be prepared to withdraw his amendment.

[Lord Morris of Aberavon]

My Lords, I am sorry to say that I am confused by the Minister’s reply to the noble and learned Lord, Lord Lloyd of Berwick. It is not the Minister’s fault, I am sure; it is the departmental brief that he has been given. As I understand it— I may be wholly wrong—at present the Government are unable to respond to the noble and learned Lord’s comments which were canvassed in appropriate detail at Second Reading. Is the position that there is no government position?

[Lord Ahmad of Wimbledon]

I did refer to that. We believe that the situation is already covered by Clause 3(3), to be clear. However, I have again noted and totally taken on board the comments made by the noble and learned Lord, and acknowledged the fact that, as was mentioned at Second Reading, this issue would be fully addressed in a letter. As I have stated previously, I have asked the Committee whether we may write specifically on that issue and address any other issues which remain outstanding. Again, however, as I said in my comments, the Government’s position is that the situation is already covered by the clause.