Defamation Bill

Lord Puttnam Excerpts

Tuesday 5th February 2013 Lords Chamber

Moved by

[Lord Puttnam]

1: After Clause 1, insert the following new Clause—
“Arbitration Service for defamation and related civil claims against members of Independent Regulatory Board
(1) The Lord Chief Justice shall establish a Defamation Recognition Commission.
(2) Schedule (Recognition Commission) makes provision relating to the Defamation Recognition Commission.
(3) The Defamation Recognition Commission shall certify bodies as Independent Regulatory Boards in accordance with the criteria in Schedule (Recognition Commission).
(4) An Independent Regulatory Board shall provide a recognised arbitration service as set out in Schedule (Specialist Arbitration Service).
(5) A court shall take into account when awarding costs and damages whether either party, claimant or defendant in a dispute has chosen not to use the recognised arbitration service of an Independent Regulatory Board.
(6) A court shall award costs under subsection (5) on an indemnity basis unless the interests of justice require otherwise.
(7) A court may order a successful party to pay all the costs of proceedings if such party has unreasonably refused to use an available recognised arbitration service.
(8) A court awarding in its judgment exemplary damages where a defendant is guilty of a flagrant breach of a defendants rights, can also take into account whether—
(a) a claimant refused to use a recognised arbitration service;(b) a defendant refused to use or join a recognised arbitration service;(c) the court shall also take into account whether a defendant first sought advice from a recognised Independent Regulatory Board before publication.”

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[Lord Puttnam]

My Lords, I shall speak to Amendments 1, 24 and 25 and associate myself with those tabled by the noble Baronesses, Lady O’Neill and Lady Hollins.

Four months have passed since the Second Reading of this Bill—

[Lord Ahmad of Wimbledon]

My Lords, I ask those who are leaving the Chamber to, as a courtesy to the noble Lord, do so quietly.

[Lord Puttnam]

My Lords, four months have passed since Second Reading; two days earlier, on 7 October, the Prime Minister had committed to implement the Leveson recommendations so long as they were not, as he put it, “bonkers”. Since returning from the Christmas Recess, I do not believe myself to be the only Member of your Lordships’ House to have felt a little like the principal characters in Samuel Beckett’s tragicomedy Waiting for Godot. As your Lordships will remember, they came even to contemplate suicide—anything, as they put it,

“to hold the terrible silence at bay”.

These amendments are designed to break that terrible silence.

Like my fellow signatories I was moved to act following the remarkable display of unity mixed with frustration that typified the delayed debate on the Leveson inquiry that was held in your Lordships’ House on Friday, 11 January. This mood was, I felt, brilliantly summed up by my noble friend Lord Alli when he concluded:

“I … say to my fellow Back-Benchers on all sides of the House that leadership … does not always come from … the Front Benches. We, too, have our role to play … this would … be a good time to intervene on timing. If we believe that the recommendations of Lord Justice Leveson require action, we on the Back Benches in this place have a … constitutional role to play in making that happen”.

He went on to say:

“There is an onus on us to ensure change. In doing so, we can help to restore trust in the press, in the police and in … Parliament”.—[Official Report, 11/1/13; col. 381.]

He is right, of course. I believe that we, as active Members of this House, have an obligation to act, and to be seen to act, on behalf of victims past, present and future.

I am no lawyer, but my concern to create movement has been enormously buttressed by the support of the noble and learned Lord, Lord Mackay of Clashfern, the noble Baroness, Lady Boothroyd, and the noble and learned Baroness, Lady Scotland, all of whose exemplary careers and knowledge more than compensate for my legal and constitutional inadequacies.

The Bill before us contains a fatal flaw: it does not deal with the manner in which ordinary citizens will be able to utilise the protection that it offers. The Bill has been drawn up with the help of newspapers, which understandably see the world through their own looking glass. Anyone who reads the Bill as it stands will not find so much as a hint of the fact that we live in a country that has spent much of the past two years debating the fall-out directly attributable to the unaccountable power of newspapers over our public life and over the lives of ordinary citizens. It is almost as if Leveson never happened.

In his reply, the noble Lord, Lord McNally, might wish to recall the absurd situation that he and I were placed in 10 years ago when we were asked to scrutinise the then Communications Bill but not to debate or discuss the implications of the emerging digital world. That was pushed safely back into the “too difficult” drawer. We have all looked a little daft ever since. These amendments seek to address those real-world concerns. They put into effect an arbitration system that would allow ordinary people to get redress if they are defamed under the new definitions that we are passing into law within the body of this Bill.

The Bill may deal with some of the perversities of the current libel system, which is largely to be welcomed, and it can be reasonably expected to lead to fewer defamation actions against newspapers. However, for the citizen who has a case in law that suggests they have been wronged by the press, the Bill has absolutely nothing to say about access to justice or the costs of seeking that justice in the courts, all of which is plainly unaffordable except for the very wealthy. After everything that we heard at the Leveson inquiry, the problems of access to justice and to remedies are far too important to be left unresolved. It is fundamental to the issue of balancing the rights of the citizen against the rights of the press; it cannot continue to be overlooked or shoved off to form part of some future piece of legislation.

Fortunately for us, Lord Justice Leveson has already proposed a ready-made and carefully considered solution. The advantage of our simple amendments is that they closely follow those recommendations, which laid out exactly the way in which this system of low-cost arbitration should be introduced to deal with legal disputes involving newspapers. They also have the merit of showing that the arbitration service proposed by Lord Justice Leveson can be put into effect in a remarkably simple and straightforward manner.

After his exhaustive and searching inquiry into the newspapers and their relationship with politicians, Lord Justice Leveson’s written recommendations said that the board, by which he means the new independent self-regulation body to be set up by the newspapers,

“should provide an arbitral process in relation to civil legal claims against subscribers, drawing on independent legal experts of high reputation and ability on a cost-only basis to the subscribing member. The process should be fair, quick and inexpensive, inquisitorial and free for complainants to use (save for a power to make an adverse order for the costs of the arbitrator if proceedings are frivolous or vexatious). The arbitrator must have the power to hold hearings where necessary but, equally, to dispense with them where it is not necessary. The process must have a system to allow frivolous or vexatious claims to be struck out at an early stage”.

That is the system that these amendments seek to put into effect. It also happens to be the system for which the newspapers have shown broad support, and it closely resembles the system welcomed by the noble Lord, Lord Hunt of Wirral, who is holding the national newspapers’ negotiations with the Government. In his evidence to the Leveson inquiry, the noble Lord said:

“It could prove extremely valuable to the UK system of self-regulation if such a provision could be inserted as an amendment to the current government Bill”.

He went on to say:

“I do not believe this in any way crosses a ‘red line’ for those of us who have serious qualms about a statutory regulator”.

The newspapers also know only too well that an arbitration service could save them collectively hundreds of millions of pounds a year in legal costs.

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The amendment also deals with recognition. My position on this is quite clear. We stand ready to build this new structure. As the noble Baroness, Lady Jay, knows, the Irish system merely acknowledged the existence of a body that had already been created two years earlier by the industry. We stand ready to build a completely new regulatory structure, and I am sure it should be subject to serious scrutiny by an outside verification body, but the noble Lord’s quotation from me is extracted from the submission I made to Lord Justice Leveson. It is taken rather out of context. The implication is that I was talking about an arbitration service, when in fact I was making the point that I felt very relaxed, indeed positive, about the possibility that the editors’ code might be recognised in the Bill. That was the point that I was making.

[Lord Puttnam]

I would make one point to the noble Lord, because I think that he is picking unnecessarily at what I said. He was clear that he believes himself to be an independent chair. He is not an independent chair. He is an appointed chair, appointed on the basis of his rejection of statutory regulation. That is the position that he comes from. He is an extremely persuasive speaker, but it is very important that he does not claim independence. He is not in any sense recognised by the House as independent on this issue.

[Lord Hunt of Wirral]

I just point out that when I applied for this post, I asked a noble and learned judge what independence meant, because I was concerned about the fact that I would be appointed by the industry. My noble and learned colleague from the judiciary said, “Don’t worry about that. The House of Lords will judge whether you are independent or not”. So I place myself in the hands of my noble colleagues. You will have to decide. I think that the test is whether someone is of independent mind. I think that it is essential that whatever structure is created, the majority of people who administer and are responsible for the new system are people of independent mind.

There is no straightforward definition of that. The point that I made in my submission to the inquiry was that the Republic of Ireland had a voluntary self-regulatory system established some years earlier. It was only after it had proved itself that it was incorporated into the Defamation Act in 2009. That matters, because what Lord Justice Leveson called for was a body that was clearly proven to be independent-run.

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Amendments 1B and 1C (to Amendment 1) not moved.

[Lord Puttnam]

My Lords, I do not intend to delay the House any longer than necessary but I would like to make one point very clearly. Speaking from the Front Bench, the noble Lord, Lord McNally, frequently and quite rightly stressed the importance of cross-party support. This is a cross-party amendment in every sense. I would never have brought it to the House had it been anything else. We start from the premise that this has cross-party—and powerful—support.

I also take up two points that the noble Lord, Lord Hunt, made, because they are important. We all agree that the issue here is trust. I put it to him that there is some discontinuity between him saying that the newspaper industry accepts the architecture of Leveson and the fact that—as the noble Lord, Lord Fowler, pointed out—day after day, whenever Leveson or any form of regulation is raised, the newspapers’ response is near hysteria. Where is the equivalence between the hysterical reaction of the newspapers and their apparently comfortable relationship with the noble Lord, Lord Hunt, as he moves towards an equitable solution? That is why I find myself so untrusting of where this is going. The noble Lord also said that other countries look to us on this matter, and he asked an important question: what sort of country do we want to be? It is very clear that 78% of the population of this country do not want us to be one in which the lives of the McCanns and people like them are ripped apart by newspaper and press abuse. That is the country we do not want to be.

It has been interesting to listen to the criticism of this amendment. A great deal of it has been about what the amendment is not. I make no claims about its faults—there are a number of them. Yet, in respect of the all-party talks that have dominated this discussion and of which we have heard so much, I am reminded of the fate of a frighteningly similar set of talks that have been held for many years—more years than I can remember—regarding the issue of party funding. Any thoroughgoing democrat knows that party funding needs to be in a form that supports the maintenance of a serious democracy. But the instant a momentary or fragmentary form of party advantage raises its head, all thoughts of what might be the right direction for the electorate, let alone the country, seem to go out of the window. My real concern is that these all-party talks seem to conform to that type of pattern, and it worries me greatly.

As Sir John Major brilliantly reminded us in his evidence before Leveson, and as Lord Justice Leveson repeated in his own concluding remarks,

“if one party breaks off and decides it’s going to seek future favour with powerful proprietors and press barons by opposing”—

the recommendations of this inquiry—

“then it will be very difficult for it to be carried into law”.

As I see it, our job in this House is to shoulder that difficulty and carry at least some of these recommendations into law. In truth, I think that it is the very least that we owe Lord Justice Leveson for all the extraordinary effort that he has put into this. As the noble Lord, Lord Lester, illustrated, the abiding fault of legislators is to make the perfect the enemy of the good. The amendments in my name and the names of the noble and learned Lord, Lord Mackay, the noble Baroness, Lady Boothroyd, and the noble and learned Baroness, Lady Scotland, do exactly what they say on the tin. They offer a solution that is quick, just and affordable and, most of all, they offer a remedy that is entirely independent of both government and the media. As my granddaughters might put it, what is not to like about that?

My noble friend—and he really is my friend—the noble Lord, Lord McNally, suggested from the Front Bench that he understood exactly where I want this to go but that I should withdraw the amendment. What flashed across my mind, because I know that he is fond of the film, is that 30-odd years ago I made a movie called “Chariots of Fire”. There is a scene in which Eric Liddell is brought before the Prince of Wales and other dignitaries and asked to run on Sunday. I will always remember his response. He says: “God knows I love my country, God knows I love my King, but I cannot do as you ask”. I think it is very important that we test the mood of the House, and I would like to request that we do so.