Lord Phillips of Sudbury
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Defamation Bill
Lord Phillips of Sudbury Excerpts(11 years, 10 months ago)
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Baroness Hayter of Kentish Town
On behalf of my noble friend Lord Browne, I thank the Minister—and, even more perhaps, his officials who did the hard work—for bringing so promptly to us the response on Rutland. Perhaps I should declare an interest as someone who is married to a member of the Institute of Physics.
I support the thrust of the amendment, but will the Minister, or perhaps the noble Lord, Lord Mawhinney, clarify whether it would cover all letters from MPs to constituents? We had a case locally where an MP attached to a letter a copy of a letter that they had received from another constituent—a row was going on between two constituents, as often happens. Would attaching that letter be similarly covered by privilege if it was then given, as it was, to the press? However, we undoubtedly support the intention of the amendment.
Lord McNally
When a Front-Bencher stands up, that is usually a signal that it is the end of the debate.
Lord Phillips of Sudbury
It is only a short point. Will the Minister confirm that the amendment will not affect a situation where a constituent writes to a Member of Parliament a brazenly vicious and malicious letter designed to cast some other constituent in the most deplorable of lights? I think that I am right in saying that malice would destroy the qualified privilege. On that basis, it might be worth having on the record that we are not by this amendment upsetting the law in that kind of situation, because it should not go that far.
Lord McNally
My Lords, the noble Lord, Lord Phillips, is the most frustrating of colleagues, because, the moment that I am tetchy with him about his cavalier approach to procedure, he then intervenes to make a very helpful comment. The question that he has asked, as well as the one asked by the noble Baroness, Lady Hayter, are ones on which I would be interested to hear the view of the noble Lord, Lord Mawhinney, because my reply is going to be to preach caution to the Committee.
I know that the noble Lord, Lord Mawhinney, unusually for him, expressed a degree of cynicism about how long the path ahead was for us on this, but I think that we should proceed with caution at this stage. It is an issue of relevance in a wider context than just defamation proceedings.
As noble Lords will be aware—and this is partly an answer to the suggestion of the noble Lord, Lord Mawhinney, that the Government were somehow dragging their feet—the Government published a draft Bill and Green Paper on parliamentary privilege in April last year. This sought views on a range of issues, including, in the broad context which I have mentioned, those which form the subject of this amendment and those in subsequent groups. Consultation on the draft Bill and Green Paper closed at the end of September, and a Joint Committee of both Houses has recently been established to consider the issue further. Therefore, in these circumstances we consider that it is clearly preferable for the issues relating to parliamentary privilege to be left to the Joint Committee to consider and take forward rather than pre-empting its considerations by including the provision in the Bill. No doubt, the deliberations of the pre-legislative scrutiny committee to which the noble Lord, Lord Mawhinney, referred and, indeed, these contributions will inform the deliberations of the Joint Committee, but on that basis I hope the noble Lord will be prepared to withdraw the amendment and leave the matter in the hands of the Joint Committee that has been established.
Lord Phillips of Sudbury
My Lords, as has already been said, Clause 7 substantially amends the provisions of Section 14 of the Defamation Act 1996 and, in particular, Schedule 1 to that Act. Subsection (7) of Clause 7 deals with reports of proceedings at meetings of listed companies and stipulates that qualified privilege should attach to,
“A fair and accurate copy of, extract from or summary of any document circulated to members of a listed company”.
There are then listed three cases in which the privilege applies. The first is where the document is circulated with the authority of the board of directors, and the second case is where the document is circulated by the auditors of the company. So far, so good and so predictable. However, in relation to qualified privilege, Clause 7(7)(b) seeks to amend Schedule 1 to the 1996 Act by substituting sub-paragraph (3) of paragraph 13 as follows:
“A fair and accurate copy of, extract from or summary of any document circulated to members of a listed company which relates to the appointment, resignation, retirement or dismissal of directors of the company”.
My amendment seeks to add, “or its auditors”.
Lord Bew
My Lords, I rise to support the amendment moved by the noble Lord, Lord Mawhinney, and to say that he has accurately recalled the discussion and the feeling of the Joint Committee. My sense is that we actually did get differing evidence. For example, I seem to recall that the Master of the Rolls was sceptical about extending privilege to academic conferences for the reasons that the noble Lord, Lord Mawhinney, has given us. On the other hand, we had a former Lord Chancellor, for example, who took the view that it was right to extend privilege. So there was a genuine difference of evidence from significant people. We were certainly much keener to protect peer-reviewed journals than we were to offer a new measure of protection for conferences for the simple reason that all of us who are academics have attended conferences that we are not sure would deserve this privilege. The Government may well have things to say to expand their thinking to produce a more enthusiastic response—on my part, at any rate. However, it is worth saying that they were somewhat cagey on this matter.
Perhaps I may say very briefly, referring to the privilege matters discussed and to what is about to come, as the one person who was a member of the Joint Committee on Parliamentary Privilege and of the Joint Committee on the Defamation Bill, that I am finding the discussion so far extremely helpful, I expect to find further discussions even more helpful, and I am learning a lot.
Lord Phillips of Sudbury
Given the noble Lord’s deep involvement in this issue, I understand what he is saying about the amendment proposed. However, is he not very concerned, along the same lines, by the provisions of Clause 7(5), which would allow,
“a press conference held anywhere in the world for the discussion of a matter of public interest”,
to have qualified privilege? It seems to me that you would be in the bizarre position of having a conference to which qualified privilege did not apply, but the press conference after the conference would be the subject of qualified privilege.
Lord Bew
The noble Lord makes a very good point, one that I was actually aware of. While I fully understand the ambiguity to which he referred, the reason why I am more open to the provision as it stands for press conferences is that in recent time we have had, to my knowledge, at least one celebrated case where a particular government department gave a press conference and people subsequently wrote perfectly legitimate articles on the basis of what was said by that department but none the less, the case went to court and substantial payments were made.
I cannot bring myself to say that it is reasonable that if a department of government holds a press conference and people actively report or elucidate on what is said there, there should subsequently be libel actions, which there have been in recent times. That is the reason why at the moment I am living with the press conference issue.
I am open to persuasion on this question of conferences, but those of us on the Select Committee want to know that the Government have thought enough about the fact that some academic conferences are not very well run and are somewhat chaotic, and that they have some way of thinking that responds to that. A fundamental thinking of our committee was that the deepest problem is that academics, in the sciences or in the humanities, can be driven by their research to certain conclusions, and at this point there is a chill point that means they would discover it was difficult to find an academic outlet because a journal might say, “Our budget is so small that if there is a libel action here, even though your research looks very interesting to us, we can’t possibly publish it”. We know that this is currently going on, and that seems to be the greatest single evil in this field that needs to be addressed. I feel less concerned in principle about defending the rights of someone who may be spouting off a little at a conference.
Lord Lester of Herne Hill
We are not supporting the amendment. We are urging the Government to accept that the amendment is not necessary because the matter is well within its scope.
Lord Phillips of Sudbury
Before this mini debate concludes, I would just say that I agree with my noble friend Lord Lester about the particularity of the post of auditor. It is not like the lawyers of the company. They are not officials of the company; they have a unique role, and I simply put it to the Committee that they should be on the same footing vis-à-vis defamation as the directors. They are not as it stands because of the point to which the noble Lord, Lord Browne, referred. Clause 7 refers only to privilege extending to documents circulated by the auditors of the company, but proposed new sub-paragraph (3), where the amendment would bite, refers to documents circulated by the company to the members of the company. At the moment, it gives qualified privilege to those documents vis-à-vis appointments, and so on, of directors but not of auditors. I am saying that it should be there, but it can be reflected on.
Lord McNally
Most certainly. That was the point that the noble Baroness, Lady Hayter, made, with which I heartily concur. It is interesting that when the Bill was debated in the other place, the move in the direction of conferences and other gatherings was warmly welcomed. I will reflect, but these proceedings will of course also be read by the scientific community. Perhaps it will help me. I have made this point time and again: I want to be able to look the scientific and academic community in the eye and say, “Look, this is the best that we can do in giving scientists and academics the maximum of freedom to indulge in proper debate and criticism in their areas of expertise”. I certainly accept that suggestion by my noble friend Lord Mawhinney. There has been a general welcome for our attempt to extend this more widely than the very narrow context of peer-reviewed articles in magazines of repute.
Amendment 42 would extend qualified privilege, subject to explanation or correction, under Schedule 1 to the Defamation Act 1996 to peer-reviewed articles and fair and accurate copies and reports of material in an archive where the limitation period for an action against the original publisher of the material has expired. In speaking to the amendment to Clause 6 tabled by the noble Lord, Lord Hunt of Chesterton, I expressed concern about extending the protection for peer-reviewed material more widely than in respect of articles in scientific and academic journals. This amendment would extend that protection even more widely to any peer-reviewed material, wherever it appears, and, as a result, would serve only to increase the risk of the defence applying in instances where the peer-review process had not been applied in a sufficiently robust way.
In respect of extending qualified privilege to archives, this is something that I know the Joint Committee on the draft Bill, chaired by the noble Lord, was in favour of. We indicated in the government response to the committee that we would consider this proposal. However, after considering the position further, we came to the conclusion that extending qualified privilege to archives would potentially make the defence available to a very wide range of material. There would also be considerable difficulties in defining what types of archive should or should not be covered. We believe that this would risk not providing adequate protection for claimants, and therefore we do not consider this amendment to be appropriate. There is no generally agreed definition of what constitutes an archive, and this amendment would potentially cover a very wide range of material.
I am have to say again—and I am not opening any gates for reconsideration on this—that I was, until a few weeks ago, the Minister for the National Archives. I am extremely proud to have held that position because it is one of the jewels in our crown in terms of a national asset. As I said to the noble Lord, we are again worrying about where to draw the line. On this occasion, we draw the line, as far as he is concerned, on the wrong side of his amendment, but I hope he will agree to withdraw it.
Lord Phillips of Sudbury
I am grateful for what the Minister said and for the contributions to the debate on this amendment which have prised out a matter not hitherto appreciated. However, rather than prolong this debate, I suggest that there be a conversation with the Minister hereafter and perhaps a return on Report.
Lord McNally
It might be an indication of how confused the Minister gets that it was subsequently clarified to me that the noble Lords, Lord Lester and Lord Browne, were both supporting me—something that I was not aware of when I heard their speeches.
Lord Phillips of Sudbury
That does not change my reply. I beg leave to withdraw the amendment.
Lord Phillips of Sudbury
My Lords, I do not know whether my few words in Amendments 45 to 47 could be described as eloquent.
Lord Phillips of Sudbury
Oh, elegant. Well, they are certainly not elegant and certainly not eloquent. Nevertheless, they are designed to make life a little easier for whoever hereafter will read this Act of Parliament. They are very modest drafting amendments, putting the definition right up where it first appears in two places, dispensing with the need for subsection (2) and saving words—which is never a bad thing in legislation. It is as simple as that.
As to the much more substantial amendment moved by the noble Lord, Lord Browne of Ladyton, and supported by the noble Baroness, Lady Hayter of Kentish Town, I await what the Minister has to say with more than usual intensity. I can quite see that there are many issues of some subtlety around this that need, as always, to be weighed. I am inclined to support them but I am waiting to hear from him.
Lord Marks of Henley-on-Thames
My Lords, I support the principle of Amendment 44A moved by the noble Lord, Lord Browne of Ladyton. The single publication rule in this Bill is an important reform for avoiding multiplicity of actions and is thoroughly welcome, but its impact is markedly diminished by restricting its application to republication by the same publisher. I can see no justification in principle for restricting a claimant suing on a second publication by the original publisher but permitting him to sue on a publication at a later date by a second publisher.
Lord Mawhinney
My Lords, politics is frequently described as the art of the possible, but it is also described as dealing with truth and people’s perception of the truth, and the latter is frequently harder than the former for politicians to handle.
I was reminded of this particular issue because there have been a number of very high profile legal cases called, mainly in the tabloid press, libel tourism. Because they have been high profile and involved lots of money, a perception has been created that this is a major problem. In fact, though, the evidence given to the Joint Committee was that it was not a major problem, in the sense that it happened not frequently but occasionally. However, the perception of it being a major problem probably meant that it needed to be addressed, and the Government, in my view and that of the Joint Committee, have sought to address libel tourism in Clause 9. My amendment would clarify that if you are resident in this country you could take out legal proceedings wherever the libel was alleged to have taken place. This country has a reputation of being a friendly place in which to bring major libel cases, but in many of the few they have precious little to do with England and Wales—and “precious little” is probably a euphemism for practically nothing.
We as a Committee were keen to ensure that, in defining what you could not do, we did not raise any question about what a bone fide resident in this country could do, irrespective of where the libel took place, so long as the UK resident could show that he or she had been seriously and substantially harmed. If something defamatory was said in a far-flung part of the world and no one in this country ever heard about it, that would not pass this test. On the other hand, it would pass the test if there was perceived to be serious harm done in the perception of people in this country. The amendment is not complicated, nor does it seek to persuade the Government to go into new territory that they do not want to go into. It is with the grain of the Government’s thinking but would clarify that trying to address libel tourism does not diminish the right of residents of this country, subject only to the harm test.
Two other amendments are linked with this one. On Amendment 49, it is quite clear from the Government’s Bill that the court has to make a decision about what is “appropriate”. What is “clearly appropriate” will therefore fall into the same category. My sense is that “clearly” is a higher level than “appropriate”. A court is perfectly capable of deciding “appropriate” and “clearly appropriate”, and at this stage I am ambivalent until I hear from the Minister why he thinks this is a good or bad idea, because I can see arguments in both directions.
Initially, I had a sympathetic reaction to Amendment 50A. However, I started to think a little more about what the words say. In our law we do not often require people to demonstrate that they have funds available before they begin proceedings; indeed, if that were a general tenet of the law of this country, Members of Parliament would have a lot less to do because constituents would stop coming to them and saying, “I won a law case but the person doesn’t have the wherewithal to meet the bill”. Indeed, I have been in that situation myself.
I am not entirely clear how you would prove to the court’s satisfaction that not only did you have the money but it would still be there when the judgment was made. Having the money before you start and still having it when you finish are, conceivably, two entirely different issues, so I have some hesitation about the amendment of the noble Lord, Lord Singh of Wimbledon. Again, I would also be interested to hear what the Government have to say. I beg to move.
Lord Phillips of Sudbury
My Lords, I speak to Amendment 49 in my name. I believe that Clause 9(2) goes too far in requiring a court to be not merely satisfied that England and Wales is the most appropriate place to bring an action but clearly satisfied. It is not clear to me quite what that would mean in any event. Is it applying a criminal law test of “beyond reasonable doubt”? I think it loads the dice against a person who is not domiciled in the UK.
Lord Mawhinney
What the clause actually says is,
“satisfied that … England and Wales is clearly the most appropriate place”,
not,
“clearly satisfied that … England and Wales is the most appropriate place”.
Would that make any difference to his argument?
Lord Phillips of Sudbury
I am obliged to my noble friend for picking up my slackness. No, I do not think it would. The wording, as the noble Lord, Lord Mawhinney, just said, is:
“England and Wales is clearly the most appropriate place”.
I think it is quite enough to leave it to the judge to decide whether it is the most appropriate place. That is a strong test in itself and, as I say, I do not think it is right to load the dice in this regard. In my view, what is provided for in Clause 9 goes far enough to stop the most undesirable cases of libel tourism.
On Amendment 50A in the name of the noble Lord, Lord Singh of Wimbledon, I am afraid I agree with my noble friend Lord Mawhinney. It would make the position of the poor litigant wanting to protect his or her name and reputation even more unequal than it already is. We know that legal aid does not apply to defamation proceedings and to have a provision that requires him or her to satisfy a court that they have resources to meet costs arising from an unsuccessful action means that at least half the population will never be able to protect their reputation, and that cannot be right.
Lord Singh of Wimbledon
On that point, it is the litigant from abroad that I am concerned about, not the defendant in this country—a litigant with substantial funds.
Lord Phillips of Sudbury
With respect, it says:
“Action against an individual domiciled in the UK”.
It does not say anything about where the plaintiff is domiciled. It talks about where the defendant is domiciled. If I were suing the noble Lord, he is domiciled in the UK but so am I. This clause does not affect my domicile, only his.
Lord Singh of Wimbledon
My Lords, this whole amendment is concerned with protection against those domiciled abroad using their wealth and remoteness to chill freedom of expression in the UK. It could be that the wording is clumsy. I will come back to that. It is intended to be applicable equally to wealthy businesses and religious cults. My concern is with the latter.
Many in this House will be aware of the power and influence of powerful cult leaders who claim deep religious insights denied to the rest of us. They often attract and get large donations from rich businessmen and media celebrities, which they use to acquire property and business interests, and often to fund expensive lifestyles. More worryingly, they also prey on the superstitious and vulnerable, promising to use their influence with God to help people meet life’s challenges or to cure incurable diseases. In one case, a cult leader got a woman to sign over her property in return for a promised cure for cancer. Sadly, the woman died soon after. I believe that it is in the public interest that such activities are exposed.
There are many more such cases in which superstitious and vulnerable people are deprived, sometimes of virtually all that they have. The power and attraction of such organisations is totally dependent on uncritical acceptance of their claims to special powers; they use their might and muscle to silence those who, in the public interest, dare to challenge them. Many such organisations are domiciled in the subcontinent of India, or in the United States and Canada, and use their wealth and power to stifle any public-interest questioning of their activities. They also use their remoteness from the UK to avoid paying the costs of any finding against them.
There are many examples. I will give one of a young journalist, who questioned the practices of an Indian sect and found himself in a ruinous lawsuit. After three nightmare years facing financial ruin, he eventually won his case but has no prospect of recovering some £50,000 spent in doing so, as this would involve further protracted litigation in Indian courts. The attitude of such foreign-based litigants is very much, “Heads I win, tails you lose”. It might be that the amendment’s wording is clumsy but its intention is very clear. I believe it will significantly deter those who use power and remoteness to intimidate those in the UK who are genuinely concerned about their activities..
Lord Marks of Henley-on-Thames
My Lords, I rise briefly to support the amendment proposed by the noble Lord, Lord Mawhinney. Again, this was a recommendation of the Joint Committee. We took the view, I suggest rightly, that it is entirely correct that cases against those who are not domiciled here or in a convention country should be restricted if they are brought by claimants who are themselves domiciled outside the jurisdiction. But I do not think it right for a local potential claimant within the jurisdiction to be debarred from suing a foreign defendant for a libel that has caused the local claimant serious harm here, even if there may be other countries that are at least as appropriate. For example, an Italian newspaper could publish a libel in Italy and England that would cause a local English claimant damage in both jurisdictions. There may be reasons for the defendant to argue that Italy would clearly be the most appropriate forum for the resolution of the dispute but, as it stands, this section would debar the English claimant from suing in England.
The clause is intended to restrict libel tourism so far as is consistent with the Brussels and Lugano conventions. It does that, but it should not also restrict local claimants from suing foreign defendants here when their reputations have been damaged here, even if there may be other jurisdictions in which they might equally well or better sue.
The amendment achieves what should be the aim of the clause. I am not sure that the proviso relating to harm is necessary, because I would be content to rely on Clause 1 for the serious harm test. But subject to tidying it up, I suggest that the amendment proposed by the noble Lord, Lord Mawhinney, is entirely justified.
Lord Phillips of Sudbury
My Lords, I briefly comment on what the noble Lord, Lord Singh of Wimbledon, said. I have to stick to my earlier analysis, but after hearing what he said, if his amendment had incorporated the purport of that I would have been very sympathetic to it—notwithstanding what my noble friend Lord Lester said, because his clause would address a different issue. The only question I have is whether the security for costs arrangements that can be invoked here might not come to the aid of the person to whom he refers.
Lord McNally
My Lords, this has been an extremely useful debate. From the beginning there has been a question of whether libel tourism exists, and there are varying views on this. Indeed, without breaking too many confidences, when I explained to a very senior member of the Government that we were trying to curb this so-called libel tourism, he said, “Are you sure? Should it not be the more the merrier?”. He had the idea that if foreigners wanted to come and use our excellent legal and judicial services they should be welcomed. In another respect, of course, we make a great play of the excellent facilities at the Rolls building for doing just that. However, there was a problem not only with the numbers but in the use of threats to stifle publication or opinion—the so-called chilling effect—and it is right that we have had this debate.
Amendment 48 would mean that the effect of the provisions on libel tourism reflected in Clause 9 would be narrowed as cases where the claimant is domiciled in England or Wales would no longer be caught even if the main impact of the alleged libel was outside England and Wales. The Government do not consider that narrowing the scope of Clause 9 is appropriate. It would mean, for example, that a Russian oligarch domiciled in England and Wales could sue a person outside the UK/EU in the English courts in circumstances where the alleged main harm to his reputation has occurred in, say, Uzbekistan.
Although I am sure the hearts of my colleagues behind me will sink, I have listened to the debate and I will study again the remarks made and the example given by the noble Lord, Lord Marks.
Lord Phillips of Sudbury
Perhaps I may make a comment, but not to pick up the point so clearly made by the noble Lord. It occurs to me, especially in the light of the amendment tabled by the noble Lord, Lord Singh of Wimbledon, that it is odd that if this is dealing with libel tourism, it is about actions by plaintiffs not domiciled in the UK rather than dealing with defendants not domiciled. It seems to me that it is the wrong way round, but that could be the subject of discussion.
Lord Phillips of Sudbury
My Lords, I, too, am extremely unhappy with the amendment. To take a literal point, why only a senior figure in public life? Why not a senior figure in the private sector, for example, where the consequences of the substance of a libel trial may be at least as important as for a senior figure in public life?
Above all, this provision—although I perfectly understand that my noble friend Lord Mawhinney did not advance it in any spirit adverse to the principles of our legal system—as my noble friend Lord Lester just said, would create a privileged class of person. It is not compliant with equality before the law. What is more, it trenches on the discretion of the judge, which I believe is the only reasonable way of limiting the right of privilege of trial by jury, given that that judge will be able to take into account all factors that seem to him or her relevant in that particular case. I am also bound to say that I cannot think of another provision in English law that discriminates in this way. I hope very much, although this was persuasively argued by my noble friend, that it will not be given credence by the Government.
Baroness Hayter of Kentish Town
My Lords, when coming back to this it is helpful to have been a member of the Joint Committee and heard the evidence. Before I address the amendment, given that it is the only one on the clause, it is worth saying how important the clause is; the removal of the presumption in favour of a jury is one of the most important parts of the whole Bill. I thought that we ought to get that on the record. While juries are very rarely used, the fact that they can be used at all is what has added to cost with regard to the extension of time in this. They drag out action, mostly because they deny the ability of the judge to take early views on issues that, quite properly, they feel must wait in case there is a jury trial, so they have not been able to take an early view until the doors of the court swing open. It was our view on the Joint Committee not only that this was important for the reduction of costs but that we hoped that judges would seize the opportunity for some really good case management, and tried to pull this stuff back as much as possible to get the time and therefore the money reduced. I do not think that we will ever go quite as far as the American system of case management, but I think that we were mentioning an urge to be as early and robust as possible.
The Joint Committee did not go as far as saying that there should be no jury trials, although some people suggested that. As the noble Lord, Lord Mawhinney, has said, it seemed that there were cases, such as a judge, where, for reasons of public confidence, a jury would need to be there to ensure that it was not one judging their own, if you like. Again, as much for public confidence as for anything else, that could also mean people who were involved in appointing judges, or people who were very senior in Government. In such cases an independent jury is there as much to give the public confidence in the hearing as for any great insight that the jury may bring.
The feeling of the Joint Committee, which I support, is that such cases should be few and far between. Most importantly, the Bill, and I think that this is the purpose of the amendment, should signify that we are talking about a very few cases in exceptional circumstances. This does not really relate to a TV star or a celebrity, in the word of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, or an athlete or the head of a business. We were looking more at those people who are involved in the broadest sense in the judicial and legislative process who, to the outside world, perhaps seem a bit cosy. Those are the sorts of cases that would be the exception.
We were looking for some indication to be given, because otherwise the fact that there could be a jury will have exactly the effect that has been suggested—possibly more cases, and people arguing that they should have a jury. We therefore want to try to shut that off as early as possible. A final decision still has to be made by a judge. Whether it is easier or harder for the judge to do that, it is important that they are given some guidance. Those in our Lordships’ House who have been judges know better than I whether it is easier or harder to do that without guidance. In a sense, guidance needs to be given to those who might be either claimants or defendants about whether they have a small or a large chance of getting a jury trial. They need to know that the circumstances are very limited.
We were partly searching for some indication to be given that we are talking about a very small number of cases. Cases where public confidence would almost demand that they were heard not simply by a jury should be few and far between. We look forward to the Minister’s response on this.
Lord Browne of Ladyton
My Lords, Amendment 51C would disapply the LASPO Act in relation to defamation proceedings and Amendment 51D would apply one-way costs shifting to defamation proceedings. Both the amendments are probing amendments. I have some sympathy with the Minister in being prodded on this issue again. He may have thought that he had seen it off with his letter of 10 December and the assurances that he has repeatedly given us, but I am afraid that I shall invite him to discuss again costs in relation to defamation.
As noble Lords will be aware, and as I think the Minister is acutely aware, this issue was addressed during the passage of the LASPO Bill, when calls were made to disapply it in relation to defamation and privacy proceedings. Assurances were given by the Minister that this would be addressed in the Defamation Bill. I do not seek to keep him specifically to that assurance, because I suppose that, on one view, a substantial amount of water has passed under the bridge since that debate and many other things are going on. Whatever intention other noble Lords may have in the debate that will ensue on this, I have no intention of transgressing into the debate about the Leveson recommendations and their consideration in tri-party talks; I have managed until now not to mention “Leveson” anywhere in your Lordships’ House, and I had intended to keep it that way.
Throughout the passage of this Bill, we have had further assurances that something will be done to address the cost of defamation proceedings, and the Government recently gave a commitment that LASPO would not apply to defamation until they had resolved the situation in relation to costs. That stay of execution, as it were, is very welcome. Our amendments are, however, designed to elicit further information from the Government as to the timing of these proposals and what they will consist of, to the extent that the Minister is in a position to share that information with me.
I want to make one very specific point to the Minister which I hope he will address when he responds. I have before me his letter of 10 December 2012, which was very welcome and very helpful in covering a number of issues before the Committee convened to consider this Bill in detail. Under the heading “Cost Protection in Defamation and Privacy cases” it sets out that,
“the Government is keen to provide some form of cost protection so as not unduly to damage the interests of impecunious parties. The Government has asked the Civil Justice Council (an independent advisory body, chaired by the Master of the Rolls) to advise on this by the end of March 2013”.
So I realise that we will have to be patient until the end of March 2013 to see what the council under the chairmanship of the Master of the Rolls advises. In order to instruct those deliberations, we have the benefit of annexe A to the letter, which sets out the terms of reference of the Civil Justice Council’s remit.
I am limited in my understanding of all of this, never having practised in this jurisdiction, but I understand that cost protection is designed to protect a party from the liability to pay the other side’s costs if their case fails. If my case fails, cost protection is designed to protect me from the liability to pay costs, or to reduce my liability. That addresses half of the problem. The serious part of the problem is how does one deal with the impecunious client who does not have the ability to institute proceedings in the first place if LASPO and the Jackson reforms are applied to defamation? How does one encourage lawyers to take on cases on some form of contingency basis, in the light of the application of LASPO and the Jackson reforms? The Government may believe that that is dealt with through the cost protection order process, but I am not satisfied that it is. Will the Minister address that issue? I beg to move.
Lord Phillips of Sudbury
My Lords, I cannot clearly say whether I do or do not support these two amendments as they have all sorts of ramifications and implications. What is common ground between the noble Lord, Lord Browne, and the noble Baroness, Lady Hayter, is that the position of not only the impecunious would-be litigant, but that of the not-well-off would-be litigant in relation to defamation, whether as plaintiff or defendant, is astonishingly unsatisfactory. It makes this branch of law, more than any other, one in which equality before the law is frankly mythical, unless one finds an extraordinarily public-spirited solicitor who will in effect act for nothing if his client’s case collapses. Even then, there would be costs possibilities for the poor litigant, whether as defendant or plaintiff, in that he or she may end up having to pay the other side’s costs. All I am doing is sympathising with my noble friend Lord McNally in having to answer these two issues. At the moment, there is no ready answer, although the idea of changing the recently passed LASPO legislation for defamation has its own problems if one believes, as I do, that the methods of paying lawyers under the conditional or contingency fee system have led to great problems of public interest. That is a rather ineffectual contribution to the debate on these two amendments.
Lord McNally
My Lords, I will not, at this hour, reopen the debate on LASPO except to say that what we were addressing, following the advice of Mr Justice Jackson, was the inflationary effect of the no win, no fee regime that we have replaced. How it will work out in terms where any success fees will be paid from damages we will have to see. But let us not be in any doubt that there was a problem that was generally agreed had an extremely inflationary effect on the cost of justice in this country.
Lord Mawhinney
My Lords, just as I paid tribute earlier to the noble Lord, Lord Bew, for his contribution, so I pay tribute also to the noble Baroness, Lady Hayter, and the noble Lord, Lord Marks. Without them I am not sure that the Committee would have come to this conclusion. The noble Lord, Lord Marks, has just eloquently explained our thinking and our reasoning. Indeed, my noble friend Lord McNally may remember that the noble Baroness, Lady Hayter, had one or two questions for him on this subject when he came to give evidence.
The noble Lord, Lord Browne, said that we proposed a pilot, and the noble Lord, Lord Marks, has confirmed that. I would add that we proposed a pilot in part because we thought that this was such a radical idea that the Minister would need some help in dealing with the legal profession. We could hear the legal profession lining up against this idea and we wanted to side with the Minister, so we suggested a pilot. However, he should not be unaware of the fact that he will have one or two sessions of arm-wrestling with people who were not overly persuasive to the Committee before, hopefully, he gives effect to this particular amendment.
Lord Phillips of Sudbury
My Lords, I add my strong support for this amendment. You could almost say that we have been mourning the failure to provide justice in the defamation field for more years than I can remember. The Society of Labour Lawyers published a document, Justice for All, back in the 1960s. The Society of Liberal Democratic Lawyers published its blueprint 20 years ago. Every legal body that I am aware of has bemoaned the intractable problems related particularly to defamation. However, I see here the seeds of a breakthrough. It is very difficult for us lawyers to accept that sometimes the best is the enemy of the good, and I would far rather have some rough and ready justice within a sensible, practical framework such as might be provided under this amendment than I would see justice spurned. I hope that we can be open-minded and a bit imaginative and, before this Bill is done, provide something that will remedy what is at present a shame for us all.
Lord Browne of Ladyton
My Lords, I am grateful for the support of the noble Lords, Lord Marks of Henley-on-Thames and Lord Mawhinney, but I am not surprised by it because the amendment draws support already from the report of the Joint Committee. I am grateful also for the overt support of the noble Lord, Lord Phillips of Sudbury.
I have to thank the Minister for his flattering if somewhat inaccurate and probably libellous description of me. It is unworthy of him to suggest that I am a bandwagon-jumper in any sense. I will privately produce evidence to him that this is an issue which I have been discussing with members of the legal profession in England in various guises for some months now, because it is not entirely what he and the noble Lord, Lord Faulks, described and discussed. This very specific provision is presented in this fashion, taking advantage of the specialist Patents Court, to make another criticism that I think the Minister will have to face should he seek our shared ambition of moving these cases to the county court—that is, there are already specialist judges who do these cases, but they are in the High Court. There will be, I predict, resistance on the part of the judiciary, among others, who will say that this difficult, complicated work, which requires High Court judges, has to be kept there.
The reason why I presented the amendment in this fashion, having thought about it for some time—since long before the exchange between the noble Lord, Lord Faulks, and the Minister took place—is that I cannot think of a more complicated area of law and fact than patent law. If a specialist court at county court level, with specialist judges, works for that area of the law, then I believe it can work for defamation.
I am also told that it is in the nature of the legal profession that our very senior judges tend to have been in the profession for a period of time and retire. I am not entirely sure what further lifespan on the Bench—that is the wrong phrase—what further time on the Bench the judges in the High Court who are specialists on defamation have. Although I do not know this, the suggestion was made to me that there is a probability that they will retire, or at least that a significant number of them may, within a comparatively short time. I am not sure whether that is right but they will have to be replaced sometime, and it should not be beyond the ability of the legal profession to produce judges at county court level who have this specialism.
I am not entirely sure whether the Minister is right that the creation of a specialist court or courts, such as the patent courts, does not require primary legislation. If it does not then I am interested to know why the patent courts were created by primary legislation if we can create specialist county courts without it, but maybe the law has been changed since they were created.
Lord Phillips of Sudbury
Might the noble Lord encourage the Government to look at the possibility of empowering registrars of county courts to do much more of the preliminary work? They could have a much bigger role, but again that might require primary legislation.
Lord Browne of Ladyton
I am grateful for that intervention from the noble Lord, Lord Phillips. The best that I can say is that I am sure the Minister has heard that suggestion, and when he is deliberating further on this potential development I am sure that he will take into account.
I am reassured that this is sufficiently high among the Government’s priorities to be a possibility—that is the best that we can expect at this stage. We will continue to keep an eye on this issue while the Bill is before the House.
Baroness Hayter of Kentish Town
My Lords, the Committee has heard from me before, as has the House at Second Reading, on my admiration for the concentration of the noble Lord, Lord Mawhinney, both on the ordinary citizen—particularly in Peterborough—who might get caught up in a libel case, whether as claimant or defendant, and also on the need of anyone involved to be able to read and understand the Bill after enactment without the need of lawyerly guidance, as he has just outlined. This is his final throw and we should support him.
We do not want the courts to so run away with interpretation and reinterpretation of the Act that a simple reading of it would give very little guide to the current law on defamation, so nuanced will it have become in learned judgments. I imagine that the noble Lord, Lord Mawhinney, would want Parliament to come back to this at that stage and say, “Look, the Act no longer represents the law; we should amend it”. We concur completely with his desire that untutored people should know their rights and their duties in regard to defamation and we hope that the Government can respond positively to the amendment.
In the mean time, as we close this part of our scrutiny of the Bill, I thank the Lords Deputy Chairmen who have guided us through procedures; the Bill team, who have assisted us throughout, both here and in other meetings, for their patience; the Ministers for their mostly good humour and occasional cheekiness; and our colleague, Sophie Davis, for keeping my noble friend Lord Browne and myself as close to the straight and narrow as was in her ability to do.
Lord Phillips of Sudbury
I associate myself and these Benches with the most recent remarks of the noble Baroness, Lady Hayter.
Lord McNally
A few weeks ago in the House I tried to make a Churchillian quote and got it completely messed up. I shall have another go.
“This is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning”.
I have got it right this time.
The only doubt I have had is about how vigorously the Committee have taken up my invitation for discussion. I will not make that mistake again. Next time, I will be utterly Stalinist in ramming the Bill through.
Our considerations of the Bill have been extremely useful. The constructive way in which the Opposition have approached the Bill and brought their experience to it, and the fact that the noble Lord, Lord Mawhinney, has seen his duty as chairman of his committee not ending with the delivery of the report but has helped and guided us on the thinking behind so many of the recommendations, have been extremely helpful. My colleagues on these Benches have been extremely helpful and it has been great to have the help of some distinguished judges.
We now move on to Report and it is rather sad that I cannot accept the final amendment tabled by the noble Lord, Lord Mawhinney, as it stands. He was an experienced Minister and will know that the two things that I have been told to avoid, even in my brief ministerial career, are annual reports to Parliament and sunset clauses, which are usually the stuff of Opposition amendments. I cannot accept an annual report because, as the noble Lord will know, arrangements already exist for post-legislative scrutiny. The Ministry of Justice is committed to fulfilling the requirements of post-legislative scrutiny in relation to this legislation.
However, taking up the point which was partly implicit in what the noble Lord, Lord Mawhinney, said and in the final remarks of the noble Baroness, Lady Hayter, I cannot make commitments on spending money in the Ministry of Justice because we have not got any. The noble Baroness is absolutely right that once this legislation is passed, a simple guide for laymen and laywomen on what we have done, how we have done it and how it will be applied, both on our website and in printed form, would be extremely useful. In that spirit I will take away the amendment and hope that the noble Lord will withdraw it.
Lord Phillips of Sudbury
Would it not be possible to think of what was done in the Charities Act 2006? This is landmark legislation in defamation. Could there not be a review within four or five years, which would not impose, obviously, the obligation of an annual review but would ensure that this did not go by the board because there was another Government with other priorities?
Lord McNally
But, my Lords, that is exactly what will happen. There will be post-legislative scrutiny within three to five years of this Act passing.