17 Jan 2013 : Column GC307

Grand Committee

Thursday, 17 January 2013.

2 pm

Defamation Bill

Defamation Bill

Committee (4th Day)

Relevant documents: 7th Report from the Joint Committee on Human Rights, 8th Report from the Delegated Powers Committee, 9th Report from the Constitution Committee

The Deputy Chairman of Committees (Lord Geddes): My Lords, it is now 2 pm. I have to start the proceedings as usual by saying that in the event of a Division in the House, which is extremely unlikely, the Committee will adjourn for 10 minutes. Before we come to the first amendment, the noble Lord, Lord McNally, has a statement to make which is not debatable.

The Minister of State, Ministry of Justice (Lord McNally): My Lords, at the beginning of the Committee’s discussions on Tuesday, the noble Lord, Lord Browne of Ladyton, raised an issue in relation to legal advice which had been given to Rutland County Council. It suggested that the general powers given to local authorities in Section 1 of the Localism Act 2011 had overturned the bar on them suing in defamation, which was established by the House of Lords in Derbyshire County Council v Times Newspapers.

My officials have explored the issue with officials at the Department for Communities and Local Government, which is responsible for the 2011 Act. The Government are in no doubt that if a case were brought, the courts would still find that local authorities cannot bring action in defamation. The decision in Derbyshire was reached on public policy grounds, which we considered remain compelling. The House of Lords found that it would be contrary to the public interest for organs of government to be able to sue in defamation, and that it would be an undesirable fetter on freedom of speech. It must be borne in mind that Derbyshire was decided before the enactment of the Human Rights Act 1998. Consideration of Article 10 would only bolster the reasoning of the House of Lords in Derbyshire.

In any event, I can reassure the Committee that even if the issue was brought before the court and found to the contrary, the situation could be remedied by way of a statutory instrument under Section 5(3) of the Localism Act 2011. The power allows the Secretary of State to prevent local authorities using Section 1 powers to do anything specific in the order. In this case, an order could be made preventing any action being brought in defamation. I have already indicated in earlier debates our view that it is preferable for the courts to have the flexibility to continue to develop the Derbyshire principle, rather than to attempt to prescribe rigid boundaries in statute. That remains our view. In the unlikely event of any difficulty arising as a result of the provisions in the Localism Act, prompt action can be taken to address that without any need for primary legislation.

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Clause 7 : Reports etc protected by privilege

Amendment 39

Moved by Lord Mawhinney

39: Clause 7, page 5, line 14, at end insert—

“( ) After paragraph 8 insert—

“8A Communication between a Member of Parliament and any constituent.””

Lord Mawhinney: My Lords, although two days have passed, this is the first debate following that on Amendment 31, which was moved by the noble Lord, Lord Hunt of Chesterton. After we had adjourned, a thought occurred to me which I probably should have put on the record in that debate. In all truth, it did not occur to me then; but it has since, so I wish to do that. In col. GC239 of Tuesday’s Hansard, in summing up his amendment, the noble Lord listed a number of institutions with which he had been in communication in framing it. One of them was the Institute of Physics, which he said has 45,000 members. It was not until I was on my way home that I realised I should probably have said that I am an honorary member of the Institute of Physics. I suspect that does not even remotely influence anything but, for the record, I make that clear.

As regards Amendment 39, I want to point out that it was drawn to the Joint Committee’s attention that when a constituent speaks to a Member of Parliament, that Member, if he then relays the information given to him or her in the House, has privilege as far as Parliament is concerned. However, there was a question mark as to whether the communication between the constituent and the Member of Parliament was also covered by privilege. It seemed to the Joint Committee that it was extremely important that it should be covered by privilege because at the very heart of our democratic process is the concept and the reality that a Member of Parliament acts on behalf of his or her constituents. That ought not to be mitigated or reduced by pressures that would rule out things that the constituent could say to his or her Member of Parliament.

We were also told that the Government intended to bring forward legislation on privilege. We all understood that and the committee took the unanimous view that—how do I put this delicately?—this might be a long, drawn-out process, which started with ministerial statements some time ago that the Government intended to legislate in this area, and various steps have been taken along that path. There was no great confidence that we would soon reach the end of that path. Unanimously, the committee decided to recommend to the House and the Government to clarify the position and to remove any doubt that what is said between a constituent and his or her Member of Parliament should also be covered by privilege. The argument was raised by one witness that these days you cannot necessarily trust every Member of Parliament to behave appropriately in such circumstances, to be careful in the use of what would probably be highly contentious information and to use it in such a way that would be in keeping with the well established standards of the House of Commons.

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The Joint Committee took the view that an occasional misuse of information by an individual Member of Parliament was not sufficiently important to offset the fundamental issue that we were addressing. Our thoughts are encapsulated in this amendment, which I beg to move.

Lord Lester of Herne Hill: My Lords, I rise in support of the amendment and what I will say briefly has some relevance to my later Amendments 43 and 44, dealing with parliamentary privilege. I am very sympathetic to the idea explained by the noble Lord, Lord Mawhinney, that we should not wait for some future legislation as a result of the consideration of parliamentary privilege generally, but that where there is an issue that properly falls within the scope of defamation and nothing else, we should take advantage in this legislation to make the necessary amendments. I regard this as one necessary amendment for the reasons given by the Joint Committee on the draft Bill.

The Government stated in their response that this was best left to the forthcoming Green Paper and draft parliamentary privilege Bill. The Green Paper concluded that while some forms of correspondence between constituents were already protected by common law qualified privilege, it would be inappropriate to extend qualified privilege to all forms of correspondence as it would run the risk of potentially encouraging correspondence to MPs intended to circumvent court orders and damage the privacy or reputation of third parties. The Government expressed the view the it would better to continue to enable the courts to determine the boundaries of privilege in individual cases.

I understand that and it is an objection to a wider issue than liability and defamation procedures. It is all about breach of privacy and contempt of court. However, given that the amendment of the noble Lord, Lord Mawhinney, seeks only to provide qualified privilege in defamation proceedings and that there seems to be agreement that it is already covered by the common law in appropriate circumstances, I see no good reason in principle to oppose it. I note that the Libel Reform Campaign supports it. It suggested adding “Private” at the start of the amendment to distinguish between letters and e-mail and social media.

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 Phillips of Sudbury: My Lords—

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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: Am I done for?

Lord McNally: No.

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.

2.15 pm

Lord Mawhinney: My Lords, I think my noble friend in his careful reply hinted vaguely that I might have been motivated by a touch of cynicism. I am

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surprised about that given how long this has been in the hopper. A second Joint Committee has now been established and part of its job will be to review the findings of the first Joint Committee. Were I to be accused of cynicism, it might more usefully be applied in those circumstances rather than simply on the basis of time elapsed.

It is probably a somewhat unusual set of circumstances for a Joint Committee to be established in part to review decisions taken by a previously properly established Joint Committee, and I look forward to the potential for an exciting debate in your Lordships’ House about which of the Joint Committee reports the House gives most credence to were the two reports not to be identical.

As regards the question raised by the noble Lord, Lord Phillips of Sudbury, my understanding is that malice is always outside qualified privilege. As regards the question raised by the noble Baroness, Lady Hayter, I was careful to draft this amendment in general terms. I did that in part because as a former Minister I know well that if the spirit of the amendment is adopted, officials will always find an opportunity to tell the Minister that the amendment is not quite correctly drafted and that he needs to do this, that or the other. They do that extremely well, and I have been the beneficiary on many occasions, so I am not being in any sense rude or aggressive. I am simply explaining that it did not seem to me to be worthwhile to try to think up every set of circumstances. If the Minister accepts the principle, when the Bill emerged from Report, it would be drafted in the way that would be most sensible as far as the Government were concerned. On this issue, I guess that would be most sensible in terms of the House as well.

The issue is that day in, day out constituents correspond with their Members of Parliament and there ought not to be an inhibition on that. Personally, I would probably restrict it to the direct communication between the constituent and the Member of Parliament because it would be that on which the Member of Parliament would stand up and address the House of Commons. Anyway, the Member of Parliament has to exercise some judgment about what he or she wishes to say in the Chamber. I do not think our Joint Committee—I look to the noble Baroness to correct me if I am wrong—was trying to be picky to the last detail. We were trying to persuade the Government to accept this principle, which is why I worded my amendment simply to get the principle in front of my noble friend. I have heard what he said and have some sympathy, but do not feel encouraged that the Government’s timeframe will be such as to meet the urgency that I think the Joint Committee wanted him to feel on this subject. Of course, I will be happy to withdraw the amendment but, in doing so, I ask my noble friend to give it serious thought and perhaps to bear in mind that, were this to go into the Defamation Bill, when the Government’s all-singing, all-dancing piece of legislation comes forward, this clause could at that point be taken out of that Bill and put in to the new Bill so that all defamation was in one place. I beg leave to withdraw the amendment.

Amendment 39 withdrawn.

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Amendment 39A

Moved by Baroness Hayter of Kentish Town

39A: Clause 7, page 5, line 23, after “includes” insert “local government and”

Baroness Hayter of Kentish Town: My Lords, the amendment in my name and that of my noble friend Lord Browne of Ladyton would extend the privilege set down in Clause 7(4) to local government. This is probably the existing intention of the clause; we can see no reason why it would not be. It is really simply for the avoidance of doubt that the suggested wording would give comfort to those local journalists who play rather an important role in propagating the work of local councils.

It would also be useful to seek some clarification from the Minister, to whom we gave some notice, about whether this clause covers the Welsh and Northern Ireland Assemblies—although the Bill does not cover Northern Ireland, reports of that Assembly could well appear in our newspapers and affect people here—and the Greater London Authority. I am fairly sure that it covers all of those and is about government in its broadest sense, but we want the wording to make that clear. I beg to move.

Lord McNally: My Lords, as an afterthought on my noble friend Lord Mawhinney’s approach to amendments, I can confirm that officials do wonderful work. However, his approach also reminds me of a story that the noble Lord, Lord Healey, told. When he was Minister of Defence, a man came to him with a solution to the Russian submarine menace: you boil the North Sea, and when the water has evaporated you can see where the submarines are on the seabed. Denis said to the man, “That’s fine, but how do I boil the North Sea?”. The man said, “Look, Mr Healey, I’ve had a good idea. Surely you and your officials should work out the practicalities”. That is just a passing thought.

I understand why the amendment has been tabled. I hope that my reply will clarify matters; I am not sure, given the presence of some very informed noble and learned friends. What I say at this Dispatch Box is of assistance to judges and courts when they make such decisions. I think so anyway, as a non-lawyer. Is it called Pepper v Hart? You see, I am learning on the job here.

Clause 7(4) extends the provision in paragraphs 9 and 10 of Schedule 1 to the Defamation Act 1996 on qualified privilege attaching to information published by legislatures, Governments and authorities exercising government functions. The changes ensure that the provisions also cover fair and accurate summaries of material and that the scope of the defence is extended to the relevant publications no matter where in the world they occur.

Amendment 39A amends the definition of governmental functions used in subsection (4) and in the 1996 Act to include a reference to local authorities as well as to police functions. We do

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not believe that this is necessary. We consider that local authorities are already covered by the reference to,

“any authority performing governmental functions”.

The Defamation Act 1952 covered information published,

“by or on behalf of any government department, officer of state, local authority, or chief officer of police”.

The 1996 Act was intended to extend this coverage. We are in no doubt that the reference to,

“any authority performing governmental functions”,

should be read as embracing the specific bodies referred to in the 1952 Act.

There is no indication that the absence of a specific reference to local authorities has caused any difficulty in practice. However, to take the specific point, we also believe that the devolved administrations would fall within the term “legislature”, which is used in the amendment to the 1996 Act made by subsection (4) of Clause 7 and elsewhere in relation to qualified privilege.

Lord Lester of Herne Hill: My Lords, am I in order in speaking?

Lord McNally: Probably not, but I will defer to the chairman.

The Deputy Chairman of Committees: It is unusual to speak after the Minister, but there is nothing to prevent any noble Lord speaking.

Lord Lester of Herne Hill: I am grateful to the deputy chairman. I am sorry to be unusual, but I normally am. Not only do I agree with what has been said but, in my mind, extending statutory qualified privilege in the schedule is one of the most useful things that the Bill does. We are dealing there with clearly prescribed situations, of which this is one, where, if the press gives a fair and accurate report, it will be protected, as will the public interest. The fact that this has been extended extremely broadly, as my Bill sought to do, whereas the 1996 Act did not do so, is a matter for congratulation.

Baroness Hayter of Kentish Town: I was going to use two words I now know I should not: they were simply “thank you”. I am not allowed to say that. I thank the Minister for his answer and beg leave to withdraw the amendment.

Amendment 39A withdrawn.

Amendment 40

Moved by Lord Phillips of Sudbury

40: Clause 7, page 6, line 6, at end insert “or its auditors”

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

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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”.

2.30 pm

The position of the auditors of listed companies in the present age could not be more important. A great deal of the disappointing events in the City and the financial world over the past few years has related to a want of probity, or at least of morality, as most would see it. The role of the auditors in policing the financial services legislation in the past, let alone in the future, could not be more vital. I do not think that is disputable in view of the fact that the documents circulated to members by the auditors of the company are expressly dealt with earlier in this proposed clause.

So, given the crucial importance of auditors and their high profile in the whole structure of a limited company in our law, it is vital that the qualified privilege attaches where the directors are dismissing the auditors of a listed company. That is a matter of the highest significance, not only to the members of the company but more generally to the proper regulation and probity of our largest companies. I feel, therefore, that the addition of auditors to this part of the clause is desirable from every point of view and is, indeed, essential. I beg to move.

Lord Mawhinney: My Lords, my Amendments 41 and 42 have been bracketed with this amendment, and I would like to speak to them at this point. I have great sympathy with what the noble Lord, Lord Phillips, has just said about auditors, and I hope attention will be paid to that.

In Clause 7(9) the Bill has:

“After paragraph 14 insert … a fair and accurate … report of proceedings of a scientific or academic conference”.

The Joint Committee spent a lot of time talking about this. It felt strongly that peer-reviewed articles were certainly right to be covered—and I would like to pay particular thanks to the noble Lord, Lord Bew, for his considerable help in helping the committee understand the issues on this particular matter—but it was much more nervous about the inclusion of conferences. I should add that from 1968 to 1984 I was an assistant professor, a lecturer and a senior lecturer in universities in the United States, and in this country and in those capacities I attended many academic conferences, as has the noble Lord, Lord Bew, and other noble Lords.

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“Conference” is a very widely drawn word. Having attended the world conference on radiation biology and radiation physics, I would have no difficulty in saying that it qualified for special consideration in the context of the Bill. On the other hand, and I speak carefully, conferences are called by a variety of people for a variety of reasons, not all of which deserve the sort of protection that we are envisaging in this legislation.

The Joint Committee came fairly firmly to the view that there ought to be protection. The wording “scientific or academic” included medicine. There were queries as to why medicine was not specifically mentioned but we thought “scientific or academic” was sufficient to cover all the academic disciplines.

We were very strongly of the view that there ought to be protection. We were equally strongly of the view that conferences ought not to be included unless my noble friend intends on Report to define, delineate and describe what the Government mean by an academic conference, or unless he wishes to add regulations about the reviewing of contents of conferences to bring them into line with peer-reviewed papers.

Amendment 42 adds to peer-reviewed papers coverage for material in archives that is of academic importance and subject to the ground rules specified in the particular amendment. The effect of the two amendments together is strongly to endorse peer-reviewed scientific and academic papers, to remove the Government’s intention to include conferences and to add authentic archive material.

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

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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: My Lords, I had not expected to need to reply about press conferences but, in the light of my noble friend Lord Phillips’s intervention, I better had. This question was dealt with by the House of Lords in a case that I was involved in called McCartan Turkington Breen v Times Newspapers, 2001 2 Appeal Cases, 277; the noble Lord, Lord Bew, may remember it.

Lord Bew: I do indeed.

Lord Lester of Herne Hill: What happened was that a soldier was found guilty of murder for, I think, killing a woman at a roadblock in Northern Ireland and sentenced to imprisonment. He was represented

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by a firm of solicitors in Northern Ireland. A group of senior military men had a meeting in a castle in, I think, Yorkshire in order to accuse the solicitors of negligence in the way that they had gone about defending the soldier. The meeting in the castle was open to the public, but very few members of the public were in fact able to get in. The law firm sued for libel and the defence was that it was a public meeting and therefore covered by statutory qualified privilege. The argument was that it was not really a public meeting but a press conference; they gave out a press statement and it was in a castle.

Lord Bingham gave the lead judgment, making it clear on free-speech grounds that the press are the eyes and ears of the public, and that where the public cannot get in easily on an occasion like that and the press can, the press must be free to make a fair and accurate report—it must be fair and accurate—of what is alleged at the press conference, which is to be treated as a public meeting.

On Article 10 grounds, the House of Lords clarified the meaning of “public meeting” to include press conferences. In fact my memory, although I may be wrong, is that the Faulks committee in 1975 had recommended that press conferences should be included. So I have no difficulty at all with the express words in the Bill making clear that it covers press conferences anywhere in the world, for the reasons given by the House of Lords, per Lord Bingham, in that case. My difficulty is with what is to be done with the amendment tabled by the noble Lord, Lord Mawhinney. I was looking at the Joint Committee report about it. Paragraph 48 states:

“The draft Bill goes some way towards tackling this problem by extending qualified privilege to include fair and accurate reports of what is said at a ‘scientific or academic conference’. We welcome this development, provided the conference is reputable”.

The report goes on to deal with peer-reviewed articles and recommends extending it to peer-reviewed articles in scientific or academic journals. Then, as the noble Lords, Lord Bew, and Lord Mawhinney, have done, it explains the definitional problems, and towards the end it recommends,

“that the Government prepares guidance on the scope of this new type of statutory qualified privilege in consultation with the judiciary and other interested parties”.

As I read this, the Joint Committee are saying that it is a good idea, but there are definitional problems, so include it, but with proper guidance.

2.45 pm

On the subject of proper guidance, I need to say something to the Minister and his well developed sense of humour. He mentioned the case of Pepper v Hart. I am not sure whether I have said this in Committee before, but when I was arguing Pepper v Hart, my opponent, the Attorney, said, “Don’t rely on anything Ministers say, especially in the middle of the night, because often they say it without much knowledge of what they’re doing”. Lord Ackner said to the Attorney, “Mr Attorney, is the maxim, ‘Think before you speak’ incompatible with good government?”.

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Baroness Hayter of Kentish Town: There is no answer to that. On the first point, on the face of it, it appears to be not a bad idea. I think that some of us feel that half the problem is that auditors are not sacked often enough. On the Financial Services Bill, we went through many of the things that they somehow failed to notice. I cannot resist saying that the people who would be most likely to sue are, of course, auditors. Auditors are firms. If we were to get our way about resisting non-natural persons having the same rights as natural persons, perhaps we could get around it that way. That is partly because I cannot resist reminding the Minister of that.

On conferences, my fellow members of the Joint Committee said that we felt that the peer-reviewed nature of the documentation or the speech is important. However, in many of the cases of scientific conferences where action has been taken, it has been taken by a corporation. That is not wholly so, but very frequently, so there may be more than one way to skin this cat. We would support the rightful emphasis on peer-review.

Lord McNally: In relation to Amendment 40, the Defamation Act 1996 gives a defence of qualified privilege to fair and accurate reports of proceedings at a general meeting of a UK public company and to copies of and extracts from various documents circulated to members of such a company.

Clause 7(7) extends this protection more widely to cover reports in relation to companies listed on recognised stock exchanges worldwide and to summaries of such material. This includes material circulated to members of a listed company which relates to the appointment, resignation, retirement or dismissal of directors of the company. The debate has reflected this. In drawing up this Bill, we have constantly challenged about where we are drawing the line and whether it is the right place to draw the line.

Amendment 40 would in addition extend qualified privilege to material relating to the appointment, resignation, retirement or dismissal of the company’s auditors. We do not consider that this would be appropriate. Extending privilege in this way would give protection to reports on contractual material between companies and their auditors such as issues of appointment and dismissal. We consider that this would be an inappropriate intrusion into how companies conduct their business affairs which could impact on business efficiency, and that it is preferable for the focus of Schedule 1 to continue to be on protecting fair and accurate reports of material which is publicly available.

Amendments 41 and 42 would alter the way in which the Bill extends qualified privilege—

Lord Browne of Ladyton: I am grateful to the Minister for giving away and apologise to Members of the Committee since I did not take part in the debate on this amendment. It occurred to me as he was speaking, and I draw his attention to the provisions of his own Bill, that the place where he seeks to draw the line and the restriction that he seeks to maintain may well already be overtaken by the provisions of new sub-paragraph (2)(a) which subsection (7) seeks to add to the schedule. I cannot think of any circumstances

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where the kind of document that the Minister is talking about in such a meeting would not be circulated to the members of the company with the authority of the board of directors of the company. That information will already be privileged as far as I can see. I may be wrong, but it seems to me that the Minister’s concern about revealing private commercial business of this nature is already overtaken by the provisions which he seeks to put in the Bill.

Lord McNally: I doubt that. We are moving the extra line to where a company has made a decision to change its auditors, which will be reported to the members of the company. There may be a number of reasons for that, but the report will be suitable for the annual general meeting, and other issues, personal or related to performance, may be covered by it. As I have said, in a number of these areas, we are drawing lines. Where there is a relationship between a company and its auditors, I just wonder whether it would be entirely conducive to good working relations between them if a reason for dismissal which was extremely damaging to the auditors was privileged in this way.

Lord Lester of Herne Hill: My Lords, I am sorry to say that I cannot understand that. We are dealing with a public listed company; we are dealing with the resignation or removal of directors, which is a very serious step; we are dealing with qualified privilege, quite rightly, to give a fair and accurate report of that. The auditors are officers of the company performing a vital role. If they are mixed up with some wrongdoing that needs to be reported, we are dealing not with some private, contractual, sensitive matter, but with what is in the report to the shareholders about the public listed company. That is already there. I cannot therefore see any good reason for not including the auditors in that. It is nothing to do with an ordinary, private commercial relationship, so I agree with the noble Lord, Lord Browne.

Lord McNally: I am Daniel in the lion’s den here. I will certainly look at—

Lord Browne of Ladyton: In the interests of clarity, I am not very pleased with how I put the argument earlier. I can put it much more simply. With respect to the noble Lord, Lord Phillips of Sudbury, I think that his amendment is unnecessary. The circumstances that he envisages in this sort of environment are already covered by the provisions of the government amendment that we all support. I cannot imagine that what he seeks to allow to be reported and to attract privilege would be circulated other than with the authority of the directors to the members of the company. I think that it is unnecessary but it may be an issue that needs to be thought about. I am concerned that perhaps in telling the Committee the line that has been adopted and to hold the line at a particular point, the Minister may already have crossed that line in any event by these provisions.

Lord McNally: I will reflect on that but I am also very concerned and do not want to enter a field regarding the professional relationship between auditors—or,

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perhaps I may respectfully suggest, lawyers—and companies, where there is a barn door left open. I understand, as indicated by the noble Lord, Lord Browne, that the intention of the proposal is to give protection. I am willing to reflect on whether where we have drawn the line is exactly right, and I will listen to expert opinion in this Committee. As a layman, I also feel a slight tingle between the shoulder blades about where we are going in terms of the relationship of professions such as auditors and lawyers with their clients. I, too, would like advice on these matters.

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.

3 pm

Lord McNally: You can see, Lord Chairman, that this is a very interesting Committee. Amendments 41 and 42 would alter the way in which the Bill extends qualified privilege to certain types of material. Again, I was interested in the interventions and understand some of the concerns expressed. We thought about whether we should try to define “conference”, and perhaps we will have another think about that. If anyone has a suggestion, they know my address.

As the Committee will know, we had a lot of discussions with editors of a number of scientific and academic journals. They were keen to stress that qualified privilege for peer-reviewed articles was seen as the most important priority by them. I very much agree with the point that the noble Baroness, Lady Hayter, made in her intervention. We should hold close to the protection of a proper peer-review process in the changes that we are making to the law.

As the noble Lord, Lord Bew, indicated in his recollection to the Committee, these editors and others were not opposed to the extension of qualified privilege to fair and accurate reports of proceedings of scientific and academic conferences, or to fair and accurate copies of, extracts from or summaries of matters published at such conferences. Our impression was that the scientific community has welcomed this extension.

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We do not agree with this amendment. The protections set out in subsection (9), along with the protection in Clause 6 and a number of other measures in the Bill are an important step forward and reflect our aim of ensuring that scientific and academic debate is able to flourish.

Lord Mawhinney: We are all agreed on the importance of peer review. As my noble friend is going to think further about conferences—he has just said that he will—will he do so in the context of peer review? That is the principle that we are all hanging on to. The Joint Committee could not find to offer to him a satisfactory way which enshrined peer review in the context of conferences, partly because peer-reviewed papers are peer reviewed ahead of publication. Peer review in conference would be subsequent to whatever was being said. Will my noble friend at least assure the Committee that when he reflects further on conferences, he will do so specifically in the context of peer review?

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

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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.

Amendment 40 withdrawn.

Amendments 41 and 42 not moved.

Clause 7 agreed.

Amendment 43

Moved by Lord Lester of Herne Hill

43: After Clause 7, insert the following new Clause—

“Reports etc of certain Parliamentary matters protected by absolute privilege

(1) The following are absolutely privileged—

(a) a fair and accurate report of proceedings in Parliament;

(b) a fair and accurate report of anything published by or on the authority of Parliament; and

(c) a fair and accurate copy of, extract from or summary of anything published by or on the authority of Parliament.

(2) The court must stay any proceedings where the defendant shows that—

(a) the proceedings relate to the publication of anything that falls within paragraph (a), (b) or (c) of subsection (1); or

(b) the proceedings seek to prevent or postpone the making of any such publication.

(3) This section also has effect in relation to the Welsh Assembly and the Northern Ireland Assembly (and any reference to Parliament is to be read as a reference to the Assembly in question).

(4) The Parliamentary Papers Act 1840 is repealed.”

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Lord Lester of Herne Hill: In speaking to Amendment 43, it may be convenient for me to speak also to Amendment 44 as they both deal with privilege. If that is not convenient, I shall speak to Amendment 43 only, but they are grouped together.

There is one defect in Amendment 43, which is that subsection (4) should not repeal the Parliamentary Papers Act 1840 for reasons that I shall explain.

I know that the Minister will say in his reply, “Leave it all to the Committee on Parliamentary Privilege”, but I hope that these amendments will eventually persuade the Government that that is not a convenient and sensible course. That will be particularly true when we come to the Neil Hamilton affair and Clause 13, which was being dealt with 13 years ago by the Joint Committee on Parliamentary Privilege of the noble and learned Lord, Lord Nicholls of Birkenhead. There has never been a more authoritative committee, crowded as it was with jurists former law officers of the Crown and with evidence given by every conceivable expert on parliamentary privilege. The idea that we should now revisit what that committee said about Clause 13 of the Defamation Act is not sensible.

However, before I come to that, I need to deal with Amendment 43. The amendment would have the effect of reinstating Clause 7 of the Bill that I produced to provide absolute privilege in defamation proceedings for fair and accurate reports of proceedings in Parliament. Section 1 of the Parliamentary Papers Act 1840 prevents any civil or criminal proceedings in respect of a report, paper, votes or proceedings published by order of either House. Section 2 confers similar protection on copies of such publications. Section 3 confers a lesser degree of protection on any extract from or abstract of such publications, which must be published in good faith and without malice.

Newspaper reports which are not taken from Hansard are also protected at common law. The case of Wason v Walter, 1868-69, 4 Queen’s Bench, 73, established that by analogy with reports of court proceedings, a publisher of a report of a parliamentary debate is protected at common law from actions for defamation. If the whole debate is published, the protection is absolute. If less than the whole is published, the protection is qualified by the requirement that it is published without malice, as stated in the Joint Committee on Parliamentary Privilege report 1999, paragraph 356.

Court proceedings now enjoy absolute privilege under Section 14 of the Defamation Act 1996. Section 15 confers qualified privilege on reports of the proceedings in public of a legislature anywhere in the world, as well as material published by or on the authority of a Government or legislature anywhere in the world, which we have just discussed. The report must be fair and accurate and published without malice and in the public interest.

Wason and Walter was decided by analogy with the privilege afforded to court proceedings. Chief Justice Cockburn said that given the,

“paramount public and national importance that proceedings of the Houses of Parliament shall be communicated to the public … to us it seems clear that the principles on which the publication of reports of proceedings of Courts of Justice have been held to be privileged apply to the reports of Parliamentary proceedings. The analogy between the two cases is in every respect complete”.

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The same protection should therefore be conferred on fair and accurate reports of parliamentary proceedings as applies to court proceedings.

In 1999, the Joint Committee on Parliamentary Privilege of the noble and learned Lord, Lord Nicholls of Birkenhead, described the 1840 Act as being,

“drafted in a somewhat impenetrable early Victorian style”.

It recommended that the,

“protection given to the media by the 1840 Act and the common law itself should be retained.

We consider, further, that the statutory protection would be more transparent and accessible if it were included in a modern statute, whose language and style would be easier to understand than the 1840 Act. We recommend that the 1840 Act, as amended, should be replaced with a modern statute”.

The 1840 Act was considered more recently by the House of Commons Culture, Media and Sport Committee in its report Press Standards, Privacy and Libel, at paragraphs 94 to 102. Referring to the 2009 case between Trafigura and the Guardian newspaper, that committee concluded that Parliamentary Questions tabled regarding the case were clearly covered by these provisions and would not therefore be covered by the then existing super-injunction which prevented publication of any reference to the case. That interpretation was challenged by the firm of Carter-Ruck, acting for Trafigura. I do not think that I need to go through that, but the committee concluded:

“The free and fair reporting of proceedings in Parliament is a cornerstone of a democracy. In the UK, publication of fair extracts of reports of proceedings in Parliament made without malice are protected by the Parliamentary Papers Act 1840 … They cannot be fettered by a court order. However, the confusion over this issue has caused us the very gravest concern that this freedom is being undermined. We therefore repeat previous recommendations from the Committee on Parliamentary Privilege that the Ministry of Justice replace the Parliamentary Papers Act 1840 with a clear and comprehensible modern statute”.

Neither committee specifically addressed the question of whether publication of reports of parliamentary proceedings should be absolute or remain qualified. The approach taken in my Bill was endorsed by the Joint Committee on the draft Defamation Bill on the basis that it is of fundamental importance that proceedings in Parliament can be reported upon freely by the press to ensure that people can discover what is being said and done by elected representatives on their behalf. In paragraph 51 of its report, my noble friend Lord Mawhinney’s committee said:

“We recommend adding a provision to the Bill which provides the press with a clear and unfettered right to report on what is said in Parliament and with the protection of absolute privilege for any such report which is fair and accurate”.

The Government’s response left the issue to the Parliamentary Privilege Green Paper. I will not take further the time of the Committee by reading any of that, but some of the issues which they raise have nothing to do with defamation, but with privacy and contempt of court. I accept that the issues raised in their Green Paper on contempt and privacy may be best dealt with in more detail by the Joint Committee on Parliamentary Privilege or the Law Commission in its review, now pending, on the law of contempt of court. However, none of that is any good reason for not giving effect to what the committee of the noble Lord, Lord Nicholls, recommended 13 years ago, what

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the Commons committee has recommended and what the Joint Committee on this Bill has recommended. That is three committees over more than 13 years concentrating only on defamation, not on privacy or contempt.

3.15 pm

Amendment 44 would repeal Section 13 of the Defamation Act 1996, effectively reinstating Clause 16 of my Bill. Clause 13(1) provides that:

“Where the conduct of a person in or in relation to proceedings in Parliament is in issue in defamation proceedings, he may waive for the purposes of those proceedings”.

Accordingly, if a Member of Parliament is accused of accepting money to ask Parliamentary Questions, as happening in the Neil Hamilton affair, the MP may waive the privilege given by Article 9 of the Bill of Rights 1688 and, in that event, evidence may be given and questions asked about the MP’s conduct without infringing parliamentary privilege. It is not possible to counterclaim for damages for slander spoken in Parliament, even against the claimant MP, who has himself waived privilege for the purpose of the proceedings.

Section 13 was strongly criticised by the 1999 report of the Joint Committee on parliamentary privilege, chaired by the noble and learned Lord, Lord Nicholls of Birkenhead, in some detail. It was attacked as undermining the basis of privilege and creating indefensible anomalies, and states:

“A fundamental flaw is that it undermines the basis of privilege: freedom of speech is the privilege of the House as a whole and not of the individual member in his own right, although an individual member can assert and rely on it. Application of the new provision could also be impracticable in complicated cases; for example where two members ... are closely involved in the same action and one waives privilege and the other does not. Section 13 is also anomalous: it is available only in defamation proceedings. ... The Committee considers these criticisms are unanswerable”.

The Joint Committee recommended that Section 13 should be repealed and replaced by a new provision under which either House on the advice of a committee would make a general waiver of Article 9 in an appropriate case. It states:

“We recommend that the mischief sought to be remedied by section 13 ... should be cured by a different means. Section 13 should be replaced by a short statutory provision empowering each House to waive Article 9 for the purpose of any court proceedings, whether relating to defamation or any other matter, where the words spoken or the acts done in proceedings in Parliament would not expose the speaker of the words or the doer of the acts to any legal liability. Each House will need to consider appropriate machinery once the section has been repealed”.

The Parliamentary Privilege Green Paper noted these criticisms and Clause 16 of my Bill, and invited views on whether Section 13 should be,

“repealed without replacement, amended, or left as it is, given that the existing power of waiver has never been used”.

Given the huge authority of the committee of the noble and learned Lord, Lord Nicholls of Birkenhead, 13 years ago, and the evidence of law officers past and present, anyone could not but realise that it is remarkable that this Government, when dealing with parliamentary privilege generally, should not have the guts, or the

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political will to get rid of a really disgraceful provision that is Section 13, which was put in to appease Neil Hamilton at the time. It was attacked by everybody in the House of Lords during the debates and by great jurists, such as Lord Simon of Glaisdale. It was put in and carried on a Whip. Every expert in the field ever since has said that it was completely unconscionable. Given the pressure on the parliamentary timetable, it seems to me that as this is only about defamation and nothing else, we should now do as past committees have said and get rid of it. It should be left to both Houses to work out the proper machinery afterwards.

I forgot, in my overlong remarks, to explain why my proposed new subsection (4) is wrong in proposing the repeal of the whole of the 1840 Act. The new provision should apply only to defamation. If one left out the whole of the Act, there would be a gap in relation to other matters. For that reason, that bit is wrong. I beg to move.

Lord McNally: My Lords, just to give some sense of momentum on this, I can tell your Lordships that the Joint Committee that has been established on parliamentary privilege is asked to report by 25 April 2013.

I listened carefully to what my noble friend said. As always, he made an extremely well informed and well researched contribution, but can I just put to the Committee a political reality? We are dealing with probably one of the most sensitive areas of the functioning of our parliamentary democracy; that is, parliamentary privilege. There is not a snowball’s chance in hell of the Houses of Parliament in an area, which is so sensitive and so important, allowing this Committee and this Bill to make decisions which go ahead of what the Joint Committee is going to do.

As the Government’s Green Paper pointed out, the point of parliamentary privilege is not defamation or what is published in the newspapers; it is the right of Members of Parliament to conduct their business in Parliament. That is why parliamentarians are so careful and so jealous about how we should handle this.

Therefore, I am sorry to say that I can give my noble friend no other response than the one that I gave to the noble Lord, Lord Mawhinney: that the Joint Committee is now in being. Certainly, my noble friend’s contribution today will be well worth reading by that committee, but it is a matter for that committee and I urge my noble friend to withdraw his amendment.

Lord Lester of Herne Hill: I am grateful. I learnt this appalling word from Europe, comitology, which is the study of committees, and I have gone too much into the past committees. Although I am not surprised by the Minister’s reply, I am deeply disappointed by it, because what my amendments seek to do is extraordinarily important but modest. The first would clarify the 1840 Act on a completely non-controversial issue so far as that Act, which is all about reporting proceedings in Parliament, is concerned. The second amendment would remove what everyone has always agreed was a gross anomaly. We apparently will have to wait for yet another committee to look at this, but I am liable to

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return to it on Report, because I am not satisfied by the stonewalling. On that basis, I beg leave to withdraw the amendment.

Amendment 43 withdrawn.

Amendment 44 not moved.

Clause 8 : Single publication rule

Amendment 44A

Moved by Lord Browne of Ladyton

44A: Clause 8, page 7, line 3, leave out from “if” to end of line 6 and insert—

“(a) a statement is published to the public (“the first publication”); and

(b) there is subsequently published (whether or not to the public) that statement or a statement which is substantially the same.”

Lord Browne of Ladyton: My Lords, the amendment, which is in my name and that of my noble friend Lady Hayter, would apply the single publication rule to the subsequent publication of the same material by any publisher rather than by the same publisher. As it appears to be convenient to the Committee, I shall speak also to Amendments 47A and 47B which stand in our joint names, too, and may make some passing reference to the amendments tabled by the noble Lord, Lord Phillips of Sudbury. I intend to speak to the amendments comparatively briefly, because this issue was rehearsed in Committee in the House of Commons, but I am seeking further information, if possible, from the Government.

Under the current law as I understand it, each publication of defamatory material gives rise to a separate cause of action which is subject to its own limitation period. That as I understand it, although I have no experience of it, is known as the multiple publication rule. Clause 8, which I support, very sensibly introduces a single publication rule to prevent an action being brought in relation to publication of the same material by the same publisher after a one-year limitation period which will apply from the date of first publication. I have no intention of going through the effect of the six subsections of this clause. They are there for Members of the Committee to read for themselves.

3.30 pm

Amendment 44A is intended to probe why the protection of the single publication rule is restricted to the re-publication by the person who published the first statement. I argue that it should not be relevant who subsequently published a statement as long as the manner of publication is not “materially different”, as set out specifically in this clause. I am supported in this argument because it reflects a recommendation of the Joint Committee; again, I do not intend to go into its reasoning, which is there in its very valuable report.

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In the Commons, the Government stated that they did not think that,

“extending the single publication rule in such a way would provide adequate protection for claimants”.—[

Official Report

, Commons, Defamation Bill Committee, 26/6/12; col. 143.]

and that they thought that Clause 8 struck the right balance. In the context of the rest of this Bill and the objectives that it seeks to achieve, I cannot for the life of me understand why there is a sub-balance of a balance. If one publication triggers the right to sue and repeated publication by the same person does not regenerate that right, I do not understand why repeated publications by others would. This whole clause seems to depend on a level of implied knowledge on the part of the claimant that should be of relevance, no matter who republishes.

Amendments 47A and 47B are here for the same purpose. The effect of Amendment 47A would be to allow a court, in considering whether a subsequent publication of the same, or substantially the same, material was made in a materially different manner from the original publication to have specific regard to the,

“quality and credibility of the source”,

of the re-publication compared with that of the first publication. I realise that there may be arguments—I give the Minister fair notice that he does not need to rehearse them all—about the elegance of some of our phraseology. If we agree about the purpose of this, I am perfectly happy that it be phrased in some other way. However, let me just explain the purpose.

Both these amendments, but specifically Amendment 47A, are designed to allow the Committee to explore whether there has been a material change if the first publication is in a less credible source than a subsequent publication. It is designed to elicit further clarification as to what “materially different” means. It is for the purpose only of allowing those who will seek to have access to the law in this area, after it is amended, to have some sense of what it was intended and designed to achieve. For example, the readership of two blogs may be the same but they may have a very different impact, depending on whether an authority on the subject or a lay member of the public runs them. Whether there is a materially different effect depends on whose blog it is.

To complete this discussion, when this matter was considered and debated in Committee in the House of Commons, the Government did not consider that the amendment was appropriate. They argued that they would find it “difficult to see” when the amendment would apply, and said:

“If a statement is published for a second time by the same publisher, the comparative quality and credibility of the source will … always be the same, even though the place where the subsequent publication appears may be different”.—[Official Report, Commons, Defamation Bill Committee, 26/6/12; col. 144.]

I beg to differ with that. I can see why publication in one set of circumstances can be materially different and that because the list in subsection (5) is nonexhaustive, the court could take these relevant considerations into account. My noble friend and I seek by this amendment to give the Government, through the Minister, an

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opportunity to explain further what, in the circumstances of modern publication that we are considering, “materially different” may mean.

Amendment 47B seeks to extend the protection of Clause 8 to other categories of republication by providing greater detail as to what constitutes a materially different publication. I am wary of lists for the reasons that have been apparent in other parts of this Bill, but I think that they are helpful at least for the purpose of exploring what is in the Government’s mind. This amendment is designed to cover two specific instances in which a subsequent publication should not be deemed to be materially different.

The first situation is where a statement is part of a scientific or academic journal that was originally accessible only on payment of a fee, which then becomes accessible free of charge—perhaps on the internet after a period of time. Publishers often find that a few weeks after the first publication the number of reads of the paper copy of the article tails off dramatically, at which point it is logical to make the article more widely available. Policywise, it also enables scientists in developing countries to have access to scholarly resources to which they otherwise would not have access because they have to go through a paywall of some description.

The second situation is the creation of archives on the internet or on microfilm, which are in a different form from the original publication and should not lose the protection of the clause. This particular amendment is supported by the Libel Reform Campaign. In their response in the Commons, the Government stated that their consultation recognised that subsection (4) of the Bill as presently drafted,

“might mean that the single publication rule does not apply to an article that is made available on a free-access basis after it was initially published in a subscription-based scientific journal”.

They added:

“There may, however, be circumstances when making a previously subscription-based journal article freely available could significantly increase the extent of the publication”,

and therefore cause harm—serious or more extensive harm, I suppose—to the claimant. Again using the striking of the balance argument, the Government said that it would not,

“strike the correct balance to say that a claimant could never bring an action in such a case”,

and,

“that it would be unduly inflexible to set out in statute specific instances when the test of whether a publication has been made in a materially different manner may, or may not, be satisfied”.—[

Official Report

, Defamation Bill Committee, 26/6/12; cols. 144-45.]

I fully anticipate that the Minister will rehearse some of these arguments. I hope that I have not stolen all of his thunder and may have saved the Committee some time. By re-raising these issues in this truncated form against the background of the debate, I hope that it gives the Minister and his advisers, who have had more time to think about this issue, an opportunity to give us more and better specification about the words that the Government have chosen to put in this legislation, which broadly are supported.

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Before sitting down, I turn to Amendments 45, 46 and 47, which are in the name of the noble Lord, Lord Phillips, but which are grouped with the two amendments in my name. My understanding of these amendments is that they are designed to produce a more elegant phraseology. If that is right and if it is considered to be more elegant, I support them. If there is something more significant to them, I wait respectfully for the noble Lord to explain it to me and I will respond to it. I beg to move.

Lord Phillips of Sudbury: My Lords, I do not know whether my few words in Amendments 45 to 47 could be described as eloquent.

Noble Lords: Elegant.

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 Ahmad of Wimbledon: In terms of audibility for all noble Lords, please could noble Lords make sure that their mobile phones are kept well away from the microphone because they cause issues with listening and difficulties for all concerned.

Lord Marks of Henley-on-Thames: I rather hope it was not mine, but it might have been. At any rate, it has been moved now.

The proviso of republication in a different manner as the application of the rule in my view provides sufficient protection. That was the unanimous and strongly held view of the Joint Committee, and it is one which I urge the Government to reconsider. I would add one caveat which is that, while I support

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the principle of this amendment, I can see the need for its qualification to ensure that this situation is addressed. It is possible to envisage a first publication by an insolvent publisher and then a second publication by a publisher who is worth suing. It would be perfectly reasonable for a claimant to take the view that he did not propose to sue the first publisher, but that he did wish to sue a publisher at a later date when the original limitation period might have expired because that publisher was worth suing and was likely to be good for the costs and the damages. It does not seem to me to be beyond the wit of draftsmen to cater for that position and to allow suing a second publisher in those circumstances. Subject to that caveat I support the amendment.

Lord Brown of Eaton-under-Heywood: I was not proposing to speak to this amendment at all but it seems to me that there is an enormous distinction to be made between person A and person B as to which publication one is being denied by the Limitation Act the opportunity of proceeding in respect of. It is, with respect, not only whether the second publisher may be financially worth suing as opposed to the first publisher which must be catered to in this provision, but surely also the standing and reputation of the publisher. One can very well imagine a situation in which one simply would not be bothered to be defamed by person A because that person’s standing and reputation was itself so low and yet a republication by somebody of real repute and standing would trigger one’s intent to sue. So if this Amendment 44A is to be accepted, that sort of thing should be catered to, whether under the provisions of subsection 4, with a specific provision about material difference lying on occasion in the character and position, financially and otherwise, of the publisher, or in some other way, I leave to others to consider.

As to the other amendments, I agree with the view that Amendments 45, 46 and 47 are a simpler and more elegant fashion of expressing those provisions. As to Amendment 47B and the proposed insertion of new Section 5A, I am neutral as to how desirable it is to spell out these considerations which shall not be regarded as materially different. I would respectfully suggest that the expression should be not,

“shall not be deemed to be”—

it is not a question of deeming—but

“shall not be regarded as”,

but that is a very minor point indeed.

Lord Lester of Herne Hill: On my noble friend Lord Phillips’s Amendments 45, 46 and 47, I hardly ever argue with parliamentary counsel as being defective in the way that they approach their work. With respect to my noble friend and to the noble and learned Lord, Lord Brown, I do not think that it is an improvement to save two words by twice repeating,

“or a section of the public”,

when it is clear beyond argument in Clause 8(2) that protection to the public includes publication to a section of the public. I therefore oppose what Lord Wilberforce once described as “the austerity of tabulated legalism”.

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3.45 pm

Lord Ahmad of Wimbledon: My Lords, we have heard much about balance. In order to provide balance from the Dispatch Box, at least in terms of the coalition, it is only right and appropriate, after my noble friend has spoken, that I now address the Committee and deal with some of the issues that have been raised. I listened with great interest to the noble Lord, Lord Browne, proposing the amendments and noted with great care what he said. At times I felt that some of my responses had winged their way over to him.

I shall respond to the amendments in front of us and share some thoughts as well. I assure noble Lords that when looking at the tabling of an amendment and its implications, both I and my noble friend Lord McNally look at these wordings in rigorous terms to test their application, ultimately from a layman’s perspective, to try to understand and get behind the true meanings of the different clauses.

Amendment 44A would amend Clause 8(1) to provide that the single publication rule would apply to the publication of the same material by any publisher rather than by the same publisher. As noble Lords have acknowledged, this would significantly extend the scope of the single publication rule, and there are implications for the protection for claimants. I shall talk through some technicalities. First, it would mean that if the claimant were to bring an action in relation to the original publication and that action took more than a year to resolve, he would then have to rely on the court to exercise its discretion under the Limitation Act and permit him to bring a further action against another person who might have republished the material. Although the claimant may have obtained a court injunction against, say, a local newspaper in this regard to prevent further publication of the material, another newspaper under different ownership in a neighbouring town would still be free to republish it.

The scenario painted by my noble friend Lord Phillips is certainly not something that I have looked at, and I will have to refer to our officials in that regard. Sorry, it was my noble friend Lord Marks who painted the scenario on solvency, which was an interesting proposition to dwell on.

I talked about understanding what this would mean from a layman’s perspective. In our discussions, one of the things that have been conveyed to me is that the purpose behind the amendment, or at least its effect, would be, in short, that one newspaper could simply report what another one had reported without paying any due regard to whether it was defamatory. Of course, in these circumstances a court has a discretion and in some cases would be likely to exercise its discretion in favour of the claimant. However, the concern remains for the Government that this process would involve additional delay and expense. We do not believe—I am going to use the words again—that it would strike the right balance.

Amendment 47A relates to the provision in subsection (5) that the single publication rule does not apply where the manner of the subsequent publication is materially different from the manner of the first publication. As the noble Lord, Lord Browne, acknowledged, unless considered in conjunction with

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Amendment 44A, it is difficult to see how this amendment would apply. When a statement is published for a second time by the same publisher, as Clause 8 provides, the comparative quality and credibility of the source will, in most cases, always be the same, even though the place where the subsequent publication appears may be different.

In any event, the Government do not consider that the amendment is necessary. Subsection (5) identifies certain matters to which the court may have regard in considering whether publication is made in a materially different manner. It is difficult to see what relevance the fact that a subsequent publication has been made in a more credible place has to the question of whether a claimant should bring a claim.

The noble Lord, Lord Browne, raised the question: what does “materially different” mean? The noble and learned Lord, Lord Browne, acknowledged that to define “materially different” may be a little fact-sensitive. We believe that the question of whether the publication is materially different should be decided by the courts rather than that we should attempt to provide a definition in the Bill. In the unlikely event that the court considered issues such as those contained in Amendment 47A to be relevant, there is nothing to prevent the court taking them into account.

Amendment 47B provides that subsequent publication shall not be deemed to be materially different in two specific instances: first, where the statement is part of an academic or scientific journal and goes from being accessible only on payment of a fee to being accessible free of charge; and, secondly, where the subsequent publication is as a result of an archive accessible on the internet. We recognise that concerns have been expressed about the importance of archives and material in scientific and academic journals. We have taken action elsewhere in the Bill to protect material which has been properly peer-reviewed.

However, there may be circumstances in which making previously subscription-based journal articles freely available could significantly increase the extent of the publication and could cause serious harm to the claimant. This is also the case where the material was previously available only in an off-line publication and is placed on an archive accessible on the internet as this may bring it to the attention of a much wider audience. We do not consider that it would be right to say that a claimant should never be able to bring an action in these cases, which would be the effect of the amendment.

In any event, the court would need to be satisfied that the publication has been made in a materially different manner, and how that test is applied is, again, best left to the court to determine in each individual circumstance. In the event that the court decides to allow a claim to proceed, the serious harm test would have to be satisfied for the claim to succeed. We, again, believe that this strikes the right balance.

On Amendments 45, 46 and 47, I cannot add much more to the words of my noble friend Lord Lester in describing the Government’s position. We believe that there is clarity in the Bill as drafted. On that basis, I hope the noble Lord will withdraw his amendment.

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Lord Browne of Ladyton: My Lords, I am grateful to noble Lords for participating in this short debate on the amendments, and I am grateful to the Minister for his response, even if it was substantially predictable. I am particularly grateful for what I might call the neutral support of the noble Lord, Lord Phillips, but why should I expect anything more since that is what I give his amendments? I am grateful to the noble Lord, Lord Marks of Henley-on-Thames, for his overt support of Amendment 44A, and grateful, too, to the noble and learned Lord, Lord Brown, for the benefit of his wisdom. I have to say that I see the strength of his argument to a degree and I am sure that it was reflected in the words of the Minister. I venture to suggest, however, that if that is the nature of his thinking on this issue, if we come back to it in the future, he might apply that logic to Amendment 47A and find that he should be supporting it even if it could be better and more elegantly drafted.

I will look very carefully at what the noble Lord has had to say. I am interested in a thread of consistency running through the way in which we legislate. I am tempted to say that the answer to the example that he gave of republication in a different town as a justification for restricting this single publication rule to the same person lies in Clause 8(4). That could be said to be “materially different”. I say with respect to the Minister that it is not a complete answer. From the point of arguing against myself, I prefer the argument of the noble and learned Lord, Lord Brown, but that may already be accommodated in the potential of subsection (4).

In trying to tease from the Government further specification on “materially different”, it is no answer to say that it will be left entirely to the courts, when subsection (5) seeks to do that in part. There are two examples of what would be relevant to the court in determining whether the manner of the subsequent publication is materially different. I appreciate that it is not intended to be an exhaustive list; we could go round in circles debating it, but it is no answer to suggest that it is a matter entirely for the court when the Government themselves seek to specify it in the clause. We should either put in some or none—we will go back to our earlier debates. I am seeking consistency. I am concerned that I may stir the noble Lord, Lord Lester, and may add time to this. I am trying to do this quickly and will go away and reflect on it. I beg leave to withdraw the amendment.

Amendment 44A withdrawn.

Amendments 45 to 47B not moved.

Clause 8 agreed.

4 pm

Clause 9 : Action against a person not domiciled in the UK or a Member State etc

Amendment 48

Moved by Lord Mawhinney

48: Clause 9, page 7, line 29, at end insert—

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“( ) A person domiciled in England or Wales may bring an action for defamation in respect of publication by a person to whom subsection (1) below applies provided that they can demonstrate that such publication has caused them serious and substantial harm.”

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

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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”.

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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 Lester of Herne Hill: My Lords, I shall speak briefly only to Amendment 50A, tabled by the noble Lord, Lord Singh of Wimbledon, to bring him good news as to why it is not needed because we have something else in place. When the noble and learned Lord, Lord Mackay of Clashfern, was Lord Chancellor we dealt with a Bill whose Title was something like the “private international law miscellaneous provisions Bill”—the team behind the Minister will know its

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correct name. I was concerned that people in countries such as Singapore or Malaysia, which have draconian libel laws and use them to suppress dissent and unpopular views without, I am afraid, any proper respect for the right to free speech, would be able to bring those laws into this country and enforce them here in libel proceedings.

I was concerned about that because the EU was in the process of harmonising tort law, including libel law, and seeking to abolish what is known as the double actionability rule of common law, which provides that if a wrong is committed in another country—a road accident in Gibraltar, for example—the victim could bring a claim for negligence in this country based on what had been done in Gibraltar, but only if it was actionable under the law of this country as well as Gibraltar’s. In other words, domestic British legal standards had to apply and be satisfied. Under the EU harmonisation programme, the danger was that if you abolished the double actionability rule it would mean that someone in one of these other countries could bring in their bad, repressive libel law and rely upon it in this country.

Of course, President Obama did precisely the same thing that I am about to say that we did to the Malaysia and Singapore. In that Act, we kept the double actionability rule in place but only for libel proceedings. The effect is that the Defamation Bill, when it becomes law, will provide the British standard; anybody coming from another country and seeking to use the defamation law coercively will have, under the double actionability rule, to satisfy the standard anyway of the Defamation Act, including the Defamation Act being read with the constitutional and conventional right to free speech. So there will already be very strong reasons in public policy why such a person will not get very far if they seek abusively to bring libel proceedings in those circumstances.

4.15 pm

I mention President Obama because, before we had this Bill, when the common law was notoriously chilling on free speech, the noble Lord, Lord Singh, may remember that the Congress of the United States did something pretty rude to us and provided that English libel judgments were unenforceable in the United States on similar grounds. That is my way of trying to explain that we already have defensive mechanisms in our system that would be enforceable to deal with the kind of abuse with which the noble Lord, Lord Singh, is rightly concerned.

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,

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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.

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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 Marks of Henley-on-Thames: Perhaps I may correct something that I have said. My example, which was off the cuff, of Italy was wrong: it ought to be the United States or somewhere outside the Brussels and Lugano conventions.

Lord McNally: I was just thinking that myself, but I did not want to raise it.

Broadly, at the moment we consider it is right that these cases should be caught by the test and therefore not automatically take place in our courts. Where a claimant in a case where the defendant is domiciled outside the UK, EU or Lugano convention states is unable to satisfy a court that, of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place to bring the action in respect of the statement, then he or she should be refused access to our courts and should be required to seek redress abroad. Such cases are not likely to arise with any frequency but, when they do, they give rise to legitimate concerns about libel tourism which uses up the time and resources of our courts.

We do not believe that the requirement to show that England and Wales is clearly the most appropriate place to bring the claim will cause undue inconvenience to claimants domiciled here who legitimately wish to bring an action in this jurisdiction to protect their reputation. It is likely that in most cases where a claimant is domiciled in England and Wales the Clause 9 test will be satisfied as the main harm to reputation will have been caused here and, in those circumstances, a claimant will readily be able to show that this is the most appropriate place to bring the claim. However, claimants should not be able to use our courts to pursue libel actions which are more appropriately heard elsewhere, even if they are domiciled here.

Amendment 49 would make a small amendment to Clause 9, but would have an undesirable impact on its effectiveness. Clause 9 provides that a court does not have jurisdiction to hear and determine an action to which the clause applies unless it is satisfied that, of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement.

Amendment 49 would remove “clearly”. We do not believe that this would be appropriate. Great concern has been expressed in Parliament and elsewhere about libel tourism. The amendment would reduce the strength of the test to be applied by the courts and could have the effect of leading to their allowing more claims to proceed in this jurisdiction in instances where the question of whether this is the most appropriate place

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to bring the claim is more marginal. We believe that most people who have commented on these issues would agree with us that it is important to give a signal to the courts that Clause 9 should be applied robustly, and that claims should be allowed to proceed only where this is clearly the most appropriate jurisdiction.

Turning to Amendment 50, I understand the point made by the noble Lord, Lord Singh, about drafting. Perhaps I may say in passing that as soon as he starts speaking my mind comes to mornings when I feel tetchy, down-at-heart and at war with the world, and his mellifluous voice comes on “Thought for the Day”, and, at the end of it, I always feel a little bit better about the world. The amendment would require an organisation or individual bringing an action against a person domiciled in the United Kingdom to provide evidence that it or he has funds in the UK to meet any costs that might arise were the action to be unsuccessful. As the amendment is drafted, this would apply where both parties are domiciled in the UK as well as where only the defendant is domiciled here. This would put potential claimants with limited resources at a serious disadvantage, as has been said by a number of those who have spoken in this debate. For example, it would mean that if an individual wished to bring an action against a national newspaper based in the UK, he or she would have to show that he or she had sufficient means to pay the newspaper’s costs, which could be substantial, in the event that the action was unsuccessful. This would considerably restrict access to justice.

However, the point that the noble Lord, Lord Singh, raised and the specific examples that he gave should give us pause for thought. As with the other points made about the way in which our laws are being used, the ability of those from abroad with resources to intimidate those making legitimate criticism of their behaviour should give us pause. The noble Lord, Lord Lester, gave assurances on that matter. As always with advice from the noble Lord, I wish to take it away and consider it, and ask my advisers whether the assurances that he gave are sufficient to protect against the abuses. How we protect against the kind of threat and intimidation that comes short of reaching court, I do not know, but perhaps one of the defences is that, when the Bill becomes an Act, people will be more aware of the protections in our law against such intimidation.

We recognise the concerns that exist about the costs of defamation proceedings for both claimants and defendants, and are firmly committed to reducing them. As I have mentioned in debating earlier amendments, the provisions on costs protection which we have asked the Civil Justice Council to consider, together with changes to the Civil Procedure Rules to support early resolution of key issues, will help claimants and defendants of limited means to bring and defend claims.

I have given noble Lords an assurance that I will look at this debate and see whether we have got the balance right. I am not sure that I can give any idea that we are going to give up “clearly”; I am going to defend that to the very last. I can see us at some future

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date on Report voting at 11.20 pm on whether “clearly” should stay in the Bill, with the noble Lord, Lord Browne, seeing an opportune moment to defeat the Government. Until that moment, I ask noble Lords not to press their amendments.

4.30 pm

Lord Lester of Herne Hill: I shall explain in case I was not clear. I was trying to say that all the defences—the requirement of serious harm, the public interest defence, qualified privilege—will be able to be used as a shield against an unscrupulous claimant, and the double actionability rule would require that too.

Lord McNally: Noted.

Lord Mawhinney: My Lords, I listened carefully to what my noble friend said, and he generated in me a little surprise; I was under the impression that he and I were singing from the same page of the hymn sheet on this one. I shall suggest to him why he and I may appear to be thinking differently and invite him to reconsider one thing that he said.

I incorporated into the amendment the view of the Joint Committee about “serious and substantial harm”. We have already debated that and the Government have a view. If their view turns out to be as we suspect it to be from this debate, I am not chasing on “serious and substantial”; I used it merely because the Joint Committee did, but I am not sure that anyone is going to get too precious about that aspect of the amendment.

As I said at the beginning, the amendment was designed to protect those who live in this country so that they would not get excluded. My noble friend chose to interpret that—perfectly correctly; I have no complaint—by citing a Russian oligarch who lived here and who had been libelled in Uzbekistan, I think he said, and the damage was in that country.

This is the point that I would like my noble friend to think about: if you take this amendment as a freestanding amendment, it allows itself to be interpreted in the way in which my noble friend interpreted it. However, if the amendment became part of the Bill then it would sit just a few lines above Clause 2, where the court has to make a decision as to whether this is the most appropriate location for a legal case to be heard. Given the example that my noble friend used, an English court would be asked to decide whether or not this was the most appropriate place for a Russian oligarch living in Kensington to take action against someone who slandered or libelled him in Uzbekistan. I yield to no one in my admiration for British justice and I am guessing that, if you put together the amendment and Clause 2, judges would say, “No; the fact that you are here allows you to come and ask us, but it doesn’t mean that this is the most appropriate place for you to do this”. When my noble friend says that he will reflect further on this debate, I invite him to look at his example against the pairing of the amendment and Clause 2, which would both be an integral part of this overall clause, and invite him to accept that Clause 2 has a mitigating effect on the amendment. If he buys the general argument that I am encouraging him to think about, and if he says that in order to clarify this

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we need to tweak the new amendment to make crystal clear what we are trying to say, then I am free and easy with that; in fact, I would be delighted were he to do so.

Given that caveat, because I think that we are not very far apart and that a drafting tweak might clear that up, I thank my noble friend for his response. I note that he is nodding in thoughtfulness—I attribute nothing else to him other than thoughtfulness—and in that spirit, I beg leave to withdraw the amendment.

Amendment 48 withdrawn.


Amendment 49

Tabled by Lord Phillips of Sudbury

49: Clause 9, page 7, line 38, leave out “clearly”

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.

Amendment 49 not moved.

Clause 9 agreed.

Amendment 50 had been withdrawn from the Marshalled List.

Amendment 50A, in substitution for Amendment 50

Tabled by Lord Singh of Wimbledon

50A: After Clause 9, insert the following new Clause—

“Action against an individual domiciled in the UK

(1) This section applies to an action for defamation against a person who is domiciled in the United Kingdom.

(2) The organisation or individual bringing the action, in addition to satisfying the court of serious harm, must also provide evidence of funds in the UK to meet any costs arising from an unsuccessful action.”

Lord Singh of Wimbledon: On rereading the wording, I feel that it does say what I intended it to say but that is drafting. I am grateful to the noble Lord, Lord Lester, for his comments and assurances, and I am particularly grateful to the Minister, Lord McNally, who gave the impression that he would look at this a little further. In those circumstances, I shall not move the amendment.

Amendment 50A, in substitution for Amendment 50, not moved.

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Clause 10 : Action against a person who was not the author, editor etc

Amendment 50B

Moved by Lord Browne of Ladyton

50B: Clause 10, page 8, line 24, at end insert “damages for”

Lord Browne of Ladyton: The amendment, standing in my name and that of my noble friend Lady Hayter, would confine Clause 10 to actions for damages only. I say at the outset that I support Clause 10. It is a significant improvement in the law, and that position is supported by those who practice commercial activities. The Booksellers Association, to which I will refer later, is a strong supporter of Clause 10, but it does not think that it goes far enough for reasons I am about to give in support of the amendment.

Amendment 50B would restrict Clause 10 to action for damages only. It would provide that a court does not have jurisdiction to hear and determine an action for damages,

“for defamation brought against a person who was not the author, editor or publisher of the statement complained of unless the court is satisfied that it is not reasonably practicable for an action to be brought against the author, editor or publisher”.

The intention is that when the primary publisher cannot be found, the claimant would still be able to sue the secondary publisher for an injunction of some description, a take-down order or for a book to be removed, even if they were not able to pursue an action for damages.

I am in the fortunate position of being familiar with the Government’s position on this amendment because it was moved in the House of Commons. The Government thought that it could lead to a situation that even when it is reasonably practicable for an action to be brought, the secondary publisher would end up having to defend the claim, although they would not be liable for damages if the claimant were successful. Nevertheless, the Government said that they would give further consideration to this issue. The response from that further consideration may well be Clause 13, which was not there at the time of that debate. I cannot anticipate fully what the Minister will say, but I have an expectation that he may refer to Clause 13.

Clause 13 merely provides in the context of a judgment that the court may order a statement to be taken down. It would be more appropriate to make it clear that claimants retain the right to bring an action when the remedy sought is not damages. Again, this could perhaps be better drafted to achieve that, and I am content to discuss that. If the Committee can be persuaded to support the principle of this argument, I urge the Government to take the argument seriously.

For ease of dealing with these three amendments that I have grouped together, Amendment 50D is a consequential amendment on Amendment 50B and provides that nothing in Clause 10,

“prevents a court from granting any injunction or order requiring a person to cease publishing a defamatory statement”.

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It may be unnecessary, but it is coupled with it. Again, I have the benefit that the Minister who dealt with this debate in the House of Commons indicated that further consideration would be given to this issue, too, but it may be that the further consideration has resulted in Clause 13, at least in part.

Amendment 50C is an inelegant amendment. It seeks to do something that I do not think that I have ever seen before in legislation, and it can be criticised for that reason. However, because of the nature of these proceedings—we are encouraged by the noble Lord, Lord McNally, to treat them as some form of seminar discussion—I have retabled this amendment. It mixes up the substance of the issue with the issue of jurisdiction. I understand that, and I am happy to take on the chin that criticism of it. However, if we move towards each other in relation to this, or if the Minister can give a better explanation than there has been otherwise about a specific aspect of this argument, and we go beyond this in agreement, I am sure that this amendment can be redrafted in another way.

At the heart of this amendment is a belief on the part of the Booksellers Association and those who advise it—indeed, there may be people in your Lordships’ Committee who have advised it at one time or other; happily, I have not—that the innocent dissemination defence, which existed previous to the 1996 Act, as a matter of fact and practice is now repealed effectively, although perhaps that was not the Government’s intention. The debate in the other place was interesting because the then Minister who dealt with it conceded in the debate that there were different views on the effect of Section 1 of the Defamation Act 1996 as to whether the defence that it provided was weaker than or as good as the innocent dissemination defence. With this short debate that I hope we will have, I seek to elicit from the Government a clarification of their position as to whether there is a difference between Section 1 of the 1996 Act and the effect of the Bill, taken together, on the one hand and the pre-1996 defence of innocent dissemination on the other, and why the Government believe that this combination that we are now presenting to secondary publishers is better than what they had before 1996.

The amendment requires that a prima facie case should exist. Although Section 1 of the Defamation Act 1996 is available to booksellers as a defence, the Booksellers Association contends that it is weaker than a common law defence of innocent dissemination, which that section replaced. As I have said before in Committee, the Minister who then dealt with it substantially conceded that point but only went as far as to say that there were differing views on the section as to whether one was weaker than the other and did not express what the Government’s position was. I think that there is at least a reasonable expectation on the part of secondary publishers that the Government should nail their colours to the mast and say what they are creating here by this process.

The Booksellers Association also contends that under Section 1, booksellers and other secondary publishers lose the protection if they know or have reason to believe that a publication contains any defamatory statement, whereas under the previous

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defence of innocent dissemination a defence would have existed if the bookseller had a reasonable belief that the alleged defamatory material was not libellous, having in most circumstances received assurances from lawyers that one of the defences applied.

4.45 pm

Finally, they contend that the effective repeal—the elimination of the innocent dissemination defence—has had, and this is a phrase I thought I would never use in these debates, a chilling effect on booksellers whereby a claimant’s lawyers often now send threatening letters to booksellers warning that unless a publication containing the alleged libel is immediately withdrawn from sale, proceedings will be started against the bookseller and the books removed from the shelves. Paragraph (c) of our amendment is therefore intended to reinstate the defence of innocent dissemination for booksellers. I have a sheaf of letters, which I will not share with the Committee, from some of the most significant firms of lawyers in the country to small booksellers across the country threatening in very strident terms just this sort of action. I fully understand why small independent booksellers, who may have 20 copies of this book on the shelf, take them down and do not sell them in those circumstances. That may represent for booksellers, who have a lot of competition, their whole profit for that week or month, and I suspect, although I have not explored this, that those who wholesale the books to them are not prepared to take them back. That clearly is not where we intend to be.

I have already covered the issue of the mixing-up of the substance of the case with jurisdiction, and I concede that that is not the right thing to do, but it allows us to have this debate in a concentrated form. If we come to a point where we feel that we need to do something about this, then we can work together to try to do it in a better way. I see some of the logic in the arguments rehearsed by the Government in previous debates in respect of this particular amendment, but there is an expectation on the part of secondary publishers and, in particular, booksellers, which are in a particular situation, that they should understand clearly what the Government are presenting to them and what circumstances they will be living in in the future. If we can improve their position by moving back towards the innocent dissemination defence, in my view they are a group of people whom we should try to assist. I beg to move.

Lord Lester of Herne Hill: I am very grateful to the noble Lord, Lord Browne, for the way in which he has just presented the amendment. I do not have the Booksellers Association as my client, although I did some time ago meet it in order to discuss the problem which has been eloquently described. I have, however, acted for Amazon US and Amazon UK and I would like briefly, because it harps back in a way to Clause 5 and the internet, to link that with what we are now discussing because it is quite important. If I walk into Daunt Books in London to buy a book, I am reasonably clear that if the bookseller has no reason to believe that the book is defamatory, the bookseller would have a defence under the defence of innocent dissemination as it was before 1996 and probably under Section 1 of

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the 1996 Act as well. I agree that there is some lack of clarity about the effect of Section 1 on the common-law defence in that situation.

The problem becomes much more acute for the international bookseller who is selling via the internet. The case that I was once in—thank goodness it never led to an argument because it was settled—is a very good example. A book published in the United States completely wrongly and in a defamatory way attributes to police officers in Northern Ireland the killing of Catholics. It is completely disgraceful and defamatory. So the police officers go against the author who is made bankrupt. They go against the publisher who is made bankrupt, so they have no recourse at all. So they go against the international bookseller on the basis that it has sold a defamatory book on the internet. When we buy that on our computers online, whether from Amazon US or Amazon UK, that is an act of publication. There is therefore publication by the bookseller of something that is defamatory and therefore Amazon is liable. Amazon, shipping the book from its warehouse in California, has absolute immunity under US law. Amazon does not have immunity under UK law, nor should it, and the same applies to Amazon UK.

The practical problem is: what is the position of the international bookseller? It can try to rely on Section 1 of the 1996 Act. The problem with that is that it is quite narrow and very unclear as to how it applies. It can try to rely on the e-commerce directive and to give new meaning to Section 1 of the 1996 Act. It can try to rely on Article 10 of the European Convention on Human Rights to give clarity as well. But all I can say is that some years ago I had a merry time—well paid—in trying to work out the answer to the puzzle that I just described.

If something like Amendment 50C were included, and the noble Lord, Lord Browne, is quite right in saying how difficult it is to clarify some of this, it would have benefit not only for the home-grown London bookseller but for the international bookseller in trying to resolve what would otherwise be extremely complicated problems that I have probably failed properly to explain.

Lord Mawhinney: If peer-review is one of the principles that we want to hang on to, combating chilling effect should be another that we want to hang on to. I have no idea, and I am not competent to judge, whether the wording of the amendment tabled by the noble Lord, Lord Browne, is right and precise, but combating chilling effect ought to be deemed to be so.

Lord Ahmad of Wimbledon: My Lords, I will take all three amendments together as they have been grouped. In doing so, I will refer first to Amendments 50B and 50D. They seek to provide that Clause 10 should prevent an action for damages for defamation being brought against a person who was not the author, editor or publisher of the statement complained of unless the court is satisfied that it is not reasonably practicable for an action to be brought against the author, editor or publisher, but should not prevent a court from granting any injunction or order requiring a person to cease publishing a defamatory statement.

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As the noble Lord, Lord Browne, indicated, the amendments were originally tabled in Committee in the other place by the honourable Member for Newcastle-under-Lyme. His concern was that circumstances could arise where a claimant who had successfully brought an action against the author of defamatory material on a website was left in the position of being unable to secure removal of the given material. This situation might arise as a result of the fact that an author may not always be in a position to remove material which has been found to be defamatory from a website, and the new defence in Clause 5—together with the more general protection provided to secondary publishers in Clause 10—might prevent the website operator from being required to do so. As the noble Lord acknowledged, it was precisely for this reason that the Government introduced Clause 13 into the Bill on Report in the other place.

In an offline context where a successful action is brought against an author, editor or publisher and a secondary publisher is made aware of the successful action, we believe that in the great majority of cases the secondary publisher would act responsibly and remove the defamatory material from sale.

However, there are issues that still appear pending and this point has been reiterated by my noble friend Lord McNally and made by me as well. We are listening in great detail to the debates and discussions in Committee. As has been illustrated from the Government’s perspective in the other place, appropriate clauses and amendments are being introduced to refine this particular Bill if and when they are needed.

Amendment 50C is identical to the one tabled on Report in the other place. It was said then that it was in part an attempt to codify the defence of innocent dissemination. As the Government explained then, Clause 10 is about jurisdiction. To require the court, as part of an assessment on jurisdiction, to assess the merits of the case before it in the manner proposed would be highly unusual and potentially confusing. Furthermore, it would involve additional evidence and expense, which would be wasted in the event that it was held that it was reasonably practicable for the claimant to pursue the primary publisher. Such arguments are properly pursued once it is established that the court indeed has jurisdiction. Subsection (1)(c) would also put the onus on the claimant to show what was in the knowledge of the secondary publisher, which, as well as being practically very difficult, would be a significant shift in the current law.

The noble Lord, Lord Browne, drew to the Committee’s attention the fact that there is a debate over the terms of Section 1 of the 1996 Act—the noble Lord, Lord Lester, referred to this as well—and how that compares to the common-law defence. A question was raised about the Government’s position. The Government believe that it is preferable to adopt the approach in Clause 10 of directing claimants towards those who are actually responsible for defamatory material. This reflects the approach that we have taken elsewhere in the Bill. In the unlikely event that it is not reasonably practicable to sue the author, editor or publisher, Clause 10 allows a claimant to bring an action against

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a secondary publisher, such as a bookseller. However, nothing in the clause would then prevent that bookseller from deploying any defences available to him them.

We believe that this approach strikes a fair balance that provides substantial protection for secondary publishers while not denying claimants a means of redress where this is deemed appropriate. I hope that on that basis of these explanations, the noble Lord will agree to withdraw his amendment.

Lord Browne of Ladyton: My Lords, I am grateful to the noble Lord, Lord Lester of Herne Hill, for his intervention and for indicating the value of at least one of my amendments in a broader, international sense. I think that that will help to concentrate our minds on the value of looking with some care at the provisions of Clause 10. I am grateful to the noble Lord, Lord Mawhinney, for his reminder that we should be seeking a direction of travel away from what may inadvertently have been created by the effect of Section 1 of the 1996 Act on the common-law defence that existed.

I am grateful, too, to the Minister, although I have to say that I am disappointed in his articulation of the Government’s position. There is a lack of courage on their part if, even in these circumstances where we are all agreed on the direction of travel, they are not willing to say that the law in relation to secondary publishers is moving in the direction of undermining the chilling effect of the behaviour of lawyers, who often act for very wealthy clients, intimidating small people from pursuing business because to some degree it involves an expression of free speech.

The appropriate response to this short debate is to indicate to the Minister that I will go away and think about this again. With regard to the first of our amendments, Amendment 50B, after this debate I am minded to consider whether Section 13 should be broader in scope. That may be the answer to the problem and a more appropriate way of dealing with it—not to restrict it only to secondary publishers and the web but to seek that it be broader in scope. That might be a simpler way of addressing at least part of the problem.

On the pre-1996 common-law position being better and less chilling than the present situation, even when improved by Clause 10, I am not sure that I will abandon my attempt to persuade the Government that something must be done. I now have the difficult job of solving how one can do that without challenging the court to deal with jurisdiction and the substance of the case at the same time. My limited experience of practising before the courts—limited by being elected to the House of Commons, although it was 20 years’ experience—suggested that once one started to make arguments about preliminary issues, one often got far into the substance of the case to do. In making arguments before the court, it was quite difficult to do the sort of thing that we suggest is possible here, by keeping these two issues separate. Apart from anything else, you often do not understand the arguments until you understand the facts and where the credible argument likely lies in a set of circumstances well enough. Anyway, never mind that.

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I will go away and think about this again. We may have room for some progress in extending the scope of Clause 13. I am not sure that I will ever persuade the Government to move beyond, with all due respect, a slightly timid position on innocent dissemination, but we may have to return to this issue on Report. In the mean time, I beg leave to withdraw the amendment.

Amendment 50B withdrawn.

Amendments 50C and 50D not moved.

Clause 10 agreed.

5 pm

Clause 11 : Trial to be without a jury unless the court orders otherwise

Amendment 51

Moved by Lord Mawhinney

51: Clause 11, page 8, line 38, at end insert—

“( ) A court may only order a trial with jury in a case involving a senior figure in public life and when that person’s credibility is at stake.”

Lord Mawhinney: My Lords, there is no need to take any time to establish that all of the members of the Joint Committee believe in the importance of trial by jury. That was not the issue. The issue was whether jury trial was appropriate in defamation cases. Most of us went into the committee being unsighted, and the evidence was very quick and almost unanimous: judges had in effect already decided that jury trials were probably not the way to go in defamation cases. A number of witnesses told us that there had not been a jury trial for defamation or libel in the past 18 months to two years; the practice had largely ceased. We were moving to a position of saying that we endorsed the present situation.

Then we got evidence from the editor of the Guardian. In his evidence, he said something which caused us all to perk up. He referred back to the case of the Guardian against Jonathan Aitken. He said that he and his newspaper had wished that that trial had been conducted in front of a jury. He made the case that occasionally, perhaps even exceptionally, people in public life needed to be tried in front of their peers simply because of the public perception and ramifications of someone in high office being in that position. He specifically mentioned judges, Members of Parliament and, if my memory is right, very senior people in the Armed Forces, where the credibility of the public and the individual were such that they needed to be tried in those circumstances. However, other than that, he said that what the judges had already established was the way to go. All I have sought to do in this amendment is accurately to reflect our evidence. I hope that I have done so faithfully. I beg to move.

Lord Brown of Eaton-under-Heywood: My Lords, there can be few occasions, particularly at five past five on a Thursday afternoon, when one feels entitled to tell, so to speak, a story from one’s own experience. However, I believe this to be just such an occasion.

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Over a quarter of a century ago, I tried, with a jury, the case of the late Robert Maxwell suing Private Eye. It was a defamation case. The burden of the central complaint that Maxwell was making was that Private Eye had published a piece which insinuated that he had tried, by means of free holidays and the like, to bribe the then leader of the Labour Party—Neil Kinnock—to recommend him for a peerage: plus ça change. The case was opened—as all these cases invariably are—at great length and the witnesses started to go into the witness box. I came back from lunch on the fourth day to find a note from the jury which read, “Please, sir, can you tell us what a peerage is?”. On the fourth day of a case all about peerages they did not know what that meant, which did not increase my faith in, and admiration for, juries.

A later case over which I presided in the Court of Appeal was that of Grobbelaar, who secured a very large award from the jury—I cannot remember the exact amount but I think that it was about £100,000—on the basis that he had been libelled by a newspaper which had accused him of match fixing. Noble Lords will remember that he was a Zimbabwean who I think played for Liverpool at the time. We eventually held—we were upheld in this by the Appellate Committee of the House of Lords—that that was a perverse award. Again, that was not greatly to the credit of juries. Therefore, I confess that I am very strongly opposed to juries in defamation cases, not least when important people—celebrities—are involved. Juries tend to be mesmerised by celebrity. Indeed, that is true of defamation cases and there are many other instances—it is perhaps invidious to mention them—where that can be seen to be so in the libel context and perhaps more widely.

Under Clause 11 as drafted, defamation cases will be tried without a jury unless a court orders otherwise. The matter is left to the general discretion of the court. Obviously, only very exceptionally would it be thought a good idea to have a jury trial with all the disadvantages of such a trial in terms of length, expense, unreasoned judgment and all the rest of it. If I may respectfully say so, the problem as I see it in this proposed amendment is that it is, first, too prescriptive and, secondly, may well encourage the use of jury trial. In the original report of the Joint Committee, it was recognised in paragraph 25 that it would be undesirable to restrict this discretion—that is, the court’s general discretion—although it is fair to say that it went on to state that it should be possible to outline general principles. The general principle later referred to was that the circumstances in which the discretion should be exercised,

“should generally be limited to cases involving senior figures in public life and ordinarily only where their public credibility is at stake”.

The first problem with the proposed amendment is that it limits the discretion of the court because it states that:

“A court may only order a trial with jury”,

in this class of case, and there may be others. For that reason, it also raises in acute form the definition problem of deciding who is properly to be regarded as a senior figure in public life and when that person’s credibility is at stake. Perhaps more fundamentally,

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the amendment raises the very concerns that the Government in their response to the Joint Committee report refer to in paragraph 62. It was there said that:

“Concerns were expressed that including guidelines in the Bill could be too prescriptive and could generate disputes”.

I have already alluded to that as one of the problems. It goes on to say that:

“There would also be a risk that detailed provisions setting out when jury trial may be appropriate could inadvertently have the effect of leading to more cases being deemed suitable for a jury than at present”,

which would work against the committee’s view, one that the Government share, that jury trials should be exceptional. If this clause is amended as proposed, there is a risk that if somebody who claims to be a senior figure in public life whose credibility is at stake wants a jury or, indeed, the defendants to a claim by someone who is arguably within that description want a jury, then initially you have a dispute and a debate as to whether it is a case where it is permissible to have a jury and, if so, the suggestion would be that Parliament would have implicitly sanctioned the thought that that is indeed a case where it is appropriate, whereas I would suggest through my earlier illustrations that not even in that case would it generally be appropriate for a jury trial. I would respectfully oppose the amendment.

Lord Lester of Herne Hill: My Lords, I am so glad that the noble and learned Lord, Lord Brown, has just made that very important contribution. I agree with all of it and therefore I can be extremely brief. I could add recollections from my own casebook of cases where juries were wholly inappropriate. The particular one I have in mind is the Convery case in Northern Ireland, but I will not go into that now.

I want to make only a couple of points. The first is that in the 19th century, Albert Venn Dicey said in his Introduction to the Study of the Law of the Constitution that the best safeguard of free speech is the English jury, which is far better than all those charters of rights, whether continental or American. That was the view at the end of the Victorian era, and Fox’s Libel Act did of course place great emphasis on the role of the jury. It was that Act, as Sir Brian Neill reminded me, that led judges to be very concerned about not giving rulings on meanings too early because they did not want to interfere with the jury. I was surprised to discover, when acting for newspapers, that they no longer believed that trial by jury was a good safeguard of free speech. They preferred the reasoned judgment of a single judge which could be appealed, because it was a reasoned judgment, to the unreasoned and incapable of being appealed judgment of a jury. In my Private Member’s Bill, with Sir Brian Neill as my guide, I took the step of saying that, not always but normally, trials should be by judge alone and not by jury.

Much to my surprise, the free speech NGOs and others, with the one exception being Liberty for reasons I understand, all supported it, as did the entire press. I note, of course, what Alan Rusbridger has said, but I do not agree at all with making a special case for celebrity public figures. As the Minister will remember, recently in another context the House agreed to abolish the old common law offence of scandalising the judiciary.

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The Law Commission agreed with that, as did the senior judges. It could not be seen why senior judges should be made a special case to be protected from gross offence, rudeness and attack when nobody else could be. Were we to approve this amendment, we would be saying that there was a special privileged class, called the great celebrity or public figure, who were to be given special point under the legal system. That would create completely the wrong impression.

One of the most important reforms is abolishing a presumption of trial by jury. The reason is that that then enables the Government, in their procedural changes, with the judges’ co-operation, to make all kinds of changes that would not be possible if the normal mode was trial by jury. This is an extremely significant clause and I very much hope that the Government hew to it without amendment.

5.15 pm

Lord Lloyd of Berwick: Could the noble Lord just inform me, although I am sure I ought to know this: is Fox’s Libel Act still on the statute book?

Lord Lester of Herne Hill: I think so but I am not absolutely certain.

Lord Lloyd of Berwick: Well, if you are not certain, who is?

Lord Lester of Herne Hill: I am not certain.

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

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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

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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 McNally: My Lords, perhaps I should say at the outset that both my party and the coalition Government are more attached to jury trial than perhaps some of the comments about the quality of juries in this debate. Part of the coalition agreement is about our support for jury trial. However, we as a Government also accept the strong arguments made by the Joint Committee. The contributions from my noble friend Lord Mawhinney and the noble Baroness, Lady Hayter, put this amendment in context, but for me the extremely helpful intervention by the noble and learned Lord, Lord Brown, removes any reason for lengthening this debate. He explained clearly the dangers of going along the lines of the amendment. We believe that under the terms of Clause 11 as drafted, the courts will have a wide discretion in deciding whether jury trial is appropriate.

I take the point made by the noble Baroness, Lady Hayter, in her closing remarks. Part of what we are hoping is not to open the gates to more jury trials or to create any special class of person who should be put into jury trials. Much of what we are hoping for, as a result of this legislation and other actions taken, is much more robust case management by judges to make cases more easily and cheaply dealt with. However, I have to tell my noble friend that, although I understand his loyalty to the committee of which he is chair, the Government would not find his amendment acceptable.

Lord Mawhinney: My Lords, I do not need to take too much time. I thought it was interesting that all three distinguished lawyers who took part in the debate with very impressive political sleight of hand got us into celebrities extremely quickly. The Joint Committee did not discuss celebrities; I did not mention celebrities; the Bill does not mention celebrities; and the amendment does not mention celebrities. But celebrities are easier to attack than generals, admirals, members of the Cabinet or senior judges, so I am not surprised that they went for celebrities, but we might at least have the record straight.

Normal behaviour now does not do juries. It has not for the past 18 to 24 months. There has not been one, we were told. I carefully said in my opening remarks, “exceptionally” and “occasionally”, and that was the view. It remains my view precisely because—and I think the noble Baroness, Lady Hayter, said it better than I did—wrapped up in all this is an element of public confidence. It is easy to squander public confidence. If you have ever been a Member of Parliament, you know it is extremely hard to get it back once you have squandered it, so I wish my noble friend well. He has the lawyers on his side, there is no question. I look forward to listening to him defending to the rest of the country how doing away with jury trials in defamation cases enhances the coalition’s commitment to jury trials. I beg leave to withdraw the amendment.

Amendment 51 withdrawn.

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Clause 11 agreed.

Clause 12 agreed.

Clause 13 : Order for removal of defamatory statement from website

Amendment 51A

Moved by Baroness Hayter of Kentish Town

51A: Clause 13, page 9, line 14, at end insert—

“( ) Regulations may make provisions as to the procedure to be followed on the making of an application for an order under subsection (1).”

Baroness Hayter of Kentish Town: My Lords, I rise to move this amendment which is tabled in my name and that of my noble friend Lord Browne of Ladyton. He mentioned Clause 13 in an earlier debate about whether it is possible that we will need to broaden this for the reasons that were discussed in relation to booksellers.

In general, we are very pleased to see Clause 13 in the Bill. It was brought back by the Government on Report in the other place in response to an issue that our Labour friends raised in Committee there. They were rightly concerned that circumstances could arise in which a claimant had successfully brought an action against the author of defamatory material online but would be unable to secure the removal of that material. We welcome the new clause and the fact that the Government—as they have promised to do all the way through the Bill, so I should not be too surprised—have listened.

However, Amendment 51A adds what our amendment in the Commons also included, which is a call for regulations setting out the procedure for making a removal order. Again, it is part of the clarity which we believe is important for people to know how to apply to a court to make such an order. I know that all the lawyers are very familiar with these things, but ordinary claimants and defendants are less so.

This part of our original amendment was not addressed by the Minister in the Commons, although he said he would go away and think about the amendment generally, so we hope that the Minister will be able to enlighten us on his colleague’s reflections on this.

Amendment 51B is a belt-and-brace or clarification measure. It is designed to ensure that the removal of defamatory material from a website should not prevent the claimant being able to bring an action in defamation. I think it is clear, but clarification is of help. I beg to move.

5.30 pm

Lord Ahmad of Wimbledon: My Lords, I thank the noble Baroness for introducing the amendments. I want to revert to the broadening of the scope which was talked about in Clause 13. Again, in the spirit of what has been said before by my noble friend Lord McNally, if that is required and desired, the Government are happy to contemplate it.

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