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House of Lords

Tuesday, 5 February 2013.

2.30 pm

Prayers—read by the Lord Bishop of Bath and Wells.

Taxation: Tax Collection

Question

2.36 pm

Asked by Lord Harrison

To ask Her Majesty’s Government whether they have sufficient resources and staff in place for the full collection of tax.

Lord Newby: My Lords, this Government are investing in HMRC so that it will collect £9 billion a year more from its compliance activities by 2014-15 than at the start of this Parliament. The number of HMRC staff in compliance roles fell under the previous Government. Under this Government there will be around 2,500 more staff tackling tax avoidance and evasion.

Lord Harrison: My Lords, given that the Public Accounts Committee found that £1.1 billion was lost to the Treasury by foolishly cutting 3,300 staff from the compliance and enforcement unit of HMRC, can the Minister give us a greater assurance that that folly will not be repeated, especially with the new comprehensive policy that has been announced on offshore tax evasion? Will the Minister say when that will be published, what its focus will be, and whether that, too, will be properly resourced to do the job that is required of it?

Lord Newby: My Lords, it is important to recognise that the big cut in staff in HMRC took place before 2010. The number of staff fell by 25,000, and 10,000 staff working in compliance roles—that is, the very staff about whom the noble Lord is concerned—were cut during that period. We have added 2,500 staff in that area since we came in and they are generating a very significant amount of additional funding. On international tax evasion and avoidance work, a whole raft of initiatives is under way. There is a new unit within HMRC and we are working very closely with the OECD. I am sure that a number of further announcements in this area will be made during this calendar year.

Lord Sharkey: My Lords, the 2010 comprehensive spending review committed HMRC to improving the customer experience. However, in December last year, the National Audit Office concluded that customers were still not getting a good service. For example, last year 20 million calls went unanswered and there was a cost of £33 million in phone charges to customers kept hanging on. Will the Minister say whether HMRC intends to increase staffing and resources to address this problem?

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Lord Newby: My Lords, HMRC has a target of answering 90% of calls. It was more than achieved in the third quarter and was certainly a better performance than that achieved in some earlier parts of the year. An example of the challenge that HMRC finds itself facing in this respect is that the number of calls that it gets per day ranges from 86,000 to 3.2 million on a peak day. Either a very small number or a very large number of people phone, and it is unsurprising that on a small number of days it is impossible to reach the 90% target. However, HMRC has put more resource in. It has upgraded the equipment and, as I said, the 90% target has been more than met in the last quarter.

Lord Eatwell: My Lords, when he assumed office, the Chancellor of the Exchequer commissioned a study on the creation of a general anti-avoidance regime. The committee that performed that study reported two years ago. When are the Government going to do something about it?

Lord Newby: I am surprised that the noble Lord does not know that the Government are committed to introducing a general anti-abuse rule in this year’s Finance Bill.

Lord Hamilton of Epsom: My Lords, the Government could do with fewer tax inspectors if they simplified the tax system. How are they doing on that?

Lord Newby: My Lords, I think everybody agrees that we have a particularly barnacle-encrusted tax system. This Government have set up the Office of Tax Simplification, which has started work in this area. One advantage of the general anti-abuse rule is that once such a rule is in place, it should not be necessary to introduce as much new tax legislation to deal with tax abuse, because the general rule will cover it.

Lord Barnett: My Lords, will the legislation include a definition of aggressive tax avoidance as compared with ordinary tax avoidance?

Lord Newby: I think that the noble Lord is crying for the moon.

Baroness Farrington of Ribbleton: My Lords, will the Minister help me? I have heard conflicting figures for staffing at HMRC. Can he tell me the figures for the total staffing complement over the past three years, as well as give me the breakdown between individual areas of work?

Lord Newby: My Lords, the staffing level at HMRC fell from about 94,000 to 66,000 under the previous Government. Under the comprehensive spending review, it is due to fall by about another 10,000. While that is happening, there will, as I said, be an increase of about 2,500 for compliance. There will therefore be a shift towards more compliance against a backdrop of a significant change in the way in which people submit tax returns. In 2010 only 42% of corporation tax

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returns were submitted online, but in 2011-12 that number had increased by 96,000. As I have said before, the number of staff you need to process that kind of activity has fallen considerably because they are no longer dealing with paper returns.

Lord Tebbit: My Lords, will my noble friend think again about the answer that he gave to the noble Lord, Lord Barnett? The noble Lord asked a perfectly simple and straightforward question and it deserves a rather better reply.

Lord Newby: My Lords, my reply would be that the Government are cracking down very hard on tax evasion and tax avoidance. We are putting more resources into this area. We are submitting more cases for prosecution and are having more successful prosecutions. The key question is: what is the outcome on the ground? Are more people who avoid and evade tax being taken to court, and are abusive practices being cracked down on? Yes, they are.

Ministerial Code

Question

2.44 pm

Asked by Lord Campbell-Savours

To ask Her Majesty’s Government whether they will review the arrangements for enforcement and monitoring of the Ministerial Code.

Lord Wallace of Saltaire: My Lords, the Prime Minister is the ultimate judge of the standards of behaviour expected of a Minister and the appropriate consequences of a breach of the standards set out in the Ministerial Code.

Lord Campbell-Savours: My Lords, now that it has been clearly established that the Cabinet Secretary, Jeremy Heywood, totally failed to carry out a full inquiry into the Mitchell affair, by discarding the evidence and in doing so, perpetrating a huge injustice on Andrew Mitchell, the former government Chief Whip, is it not now time to transfer the responsibility for carrying out inquiries into alleged ministerial transgressions from the Cabinet Secretary—indeed, anybody in Downing Street—to the Parliamentary Commissioner for Standards for Commons’ Ministers and to the Commissioner for Standards in the case of Ministers in the House of Lords? Surely we all recognise that all Ministers are Members of Parliament and should be subject to rules set by Parliament.

Lord Wallace of Saltaire: My Lords, I remind the noble Lord that the Cabinet Secretary’s recommendation to the Prime Minister was that the e-mails were unreliable evidence and that Andrew Mitchell should stay in post. In the evidence that he gave to the Public Administration Committee on 10 January, he said:

“My report to the Prime Minister basically said that there were some inconsistencies and inaccuracies between the account

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in the e-mails and what I could see in the CCTV footage. What was fundamental was the conclusion, which was that you could not rely on these e-mails to terminate Andrew Mitchell’s career”.

What then followed was a continuing press campaign, possibly with others involved, that led to Andrew Mitchell later offering his resignation.

Lord Marlesford: My Lords, does my noble friend regard it as really satisfactory that the allegations of misbehaviour by the Metropolitan Police in respect of Mr Andrew Mitchell are being investigated by the Metropolitan Police?

Lord Wallace of Saltaire: My Lords, I need to be very careful about commenting on an ongoing police investigation. Given that the investigation is ongoing, I will say that I note the noble Lord’s concern.

Baroness Royall of Blaisdon: My Lords, under the Ministerial Code, Ministers are responsible for their special advisers. In the Sunday newspapers there were allegations that the special advisers of the right honourable Michael Gove MP might have been acting improperly. If that were to be the case, what would be the consequences for the Secretary of State?

Lord Wallace of Saltaire: The noble Baroness will be aware that allegations of this sort arise from time to time. She will remember the case of Damian McBride in the previous Government. On the whole my experience in government is that special advisers work very well with their Ministers, but the Ministerial Code is quite clear that special advisers are appointed by Ministers, subject to the Prime Minister’s approval, and are accountable to their Ministers. If they behave outside their responsibilities, it is their Ministers who should hold them to account.

Lord Grocott: That does not seem to square with what happened in the case of Jeremy Hunt if, as the Minister has just said, Ministers are responsible for the activities of their special advisers. We had a Secretary of State acting in what was described as a quasi-judicial capacity who was clearly and demonstrably sympathetic to one side rather than the other in a very important ministerial decision. Surely it is an odd conclusion that the special adviser should lose his job and the Minister should not only remain in his job but be promoted.

Lord Wallace of Saltaire: I am not fully aware of exactly what happened in that case, and I am fully prepared to write to the noble Lord if I can get some further information. Of course, if special advisers operate beyond what the Minister has asked them to do, they must take responsibility as the Minister requires.

Lord Elis-Thomas: My Lords, will the Minister address himself to the Question put so succinctly by the noble Lord? Should there not be, outside of government, a way of dealing with complaints against Ministers, which is equal to how Members are dealt with in this House and in the other place?

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Lord Wallace of Saltaire: My Lords, at that point we begin to get into fundamental constitutional issues about the relationship between the Executive and Parliament. While preparing for a Question on collective responsibility that will come up next week, it occurred to me that this was something over which we fought a civil war in the 17th century and then had a further revolution in 1689. However, we never quite resolved the question of how far it is the Executive who have independent authority or how far Parliament is able to assert its sovereignty over the Executive.

Lord Elton: Is the Minister aware that Parliament was invented to control government and not to serve it, and therefore that it is perfectly proper for Parliament to have a view on these issues and to try to change them?

Lord Wallace of Saltaire: It is perfectly possible for Parliament to have a view. Having read several recent reports by the Public Administration Committee and the Public Accounts Committee of the House of Commons, I can say that Parliament makes its views felt extremely actively and frequently.

Lord Stoneham of Droxford: May I ask my noble friend the Minister whether the Government are considering changes to the Ministerial Code in the light of the Leveson report, or whether they are putting their energies into achieving an agreed code of practice that would apply both to Ministers and the opposition Front Bench, in order to ensure the transparency of future relationships between all leading politicians and senior media executives, as recommended by Lord Justice Leveson?

Lord Wallace of Saltaire: My Lords, the Ministerial Code now makes it clear that Ministers should report their meetings with all interested parties—which clearly includes those covered in this part of the Leveson report concerning media proprietors, newspaper editors and senior executives—so such meetings should be covered by the Ministerial Code.

Lord Foulkes of Cumnock: My Lords, is the Minister aware that the Ministerial Code in Scotland is so narrow and lax that the First Minister gets away regularly with lying to Parliament—and other transgressions?

Noble Lords: Oh!

Lord Foulkes of Cumnock: I will tell noble Lords about the transgressions later. Seriously, do we have any reserved powers to look at the Ministerial Code in Scotland and tighten it?

Lord Wallace of Saltaire: My Lords, I am not sighted on that supplementary question, but I look forward to the enjoyable evening on which the noble Lord, Lord Foulkes, tells me about the transgressions that he feels have happened in the Scottish Executive.

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Food: Banks

Question

2.52 pm

Asked by Lord Dubs

To ask Her Majesty’s Government how many official visits to food banks have been made by Ministers of both Houses since May 2010.

The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord De Mauley): My Lords, Ministers meet a wide range of organisations and individuals at locations all over the country. There is no central record of visits to food banks since May 2010 but I can inform noble Lords that, in their official capacities at Defra, my noble friend Lord Taylor of Holbeach and Caroline Spelman both made visits to FareShare in 2011, that my noble friend Lord Taylor and I have both visited FoodCycle, and that I will soon visit FoodCycle again.

Lord Dubs: I am sure that the Minister will agree that the volunteers working in food banks provide an essential support service for people in poverty. Will the Minister comment on the fact that from April there will be savage cuts in the welfare budget, estimated at some £3 billion, which will hit the incomes of the poorest in our society, while at the same time there will be £3 billion-worth of tax handouts for the better off? Do the Government have any contingency plans to provide extra support for the voluntary organisations running food banks so that they will be able to cope with the inevitable extra needs that will be created?

Lord De Mauley: First, I absolutely echo the noble Lord’s welcome for the work done by the volunteers who work in these wonderful charities. We know that families are seeing the price of their weekly shop increase. The impact of food price inflation is a real concern to us. Food prices are affected by global drivers such as world food prices, oil prices and exchange rates. In answer to the noble Lord’s supplementary question, there are several schemes that help people, especially children, get a nutritional diet, including Healthy Start and the school fruit and vegetable scheme.

Baroness Parminter: Will my noble friend outline any plans the Government have to encourage the food industry to divert surplus food to organisations such as FareShare, which help feed local people and contribute to meeting the Government’s target of no food waste going to landfill?

Lord De Mauley: My noble friend asks an apposite question. As I have said, we thoroughly support the work of charities such as FareShare and FoodCycle, which work with the food industry to ensure that surplus food is distributed to people who really need it. Defra Ministers held a round-table meeting with retailers and food charities in July to explore the barriers to food redistribution. They also considered an outline proposal from FareShare and FoodCycle

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that seeks to make redistribution easier for both charities and retailers. This proposal would build on the partnerships that most major retailers already have with redistribution charities.

Lord Wigley: My Lords, does the Minister accept that an increasing number of people who are in work are resorting to food banks? The CAB has identified this as a result of high interest rates combined with low wages and insecure work. In these circumstances, what will the Government do about introducing a living wage?

Lord De Mauley: My Lords, the noble Lord is absolutely right that we need to help the poorest in our country. That is why, over the past two years, the Government have provided grants of around £2 billion to help freeze council tax; the fuel duty increase that was due to take effect on 1 January was cancelled and the increase planned for 1 April deferred until 1 September; and we have lifted the personal tax allowance and taken 2 million of the lowest-paid people out of tax altogether. It is, of course, why we have the Healthy Start and school fruit and vegetable schemes. It is also good news that on 23 January we learnt that employment is up by 90,000 and that the rate of job growth last year was the fastest since 1989.

Baroness Hollis of Heigham: My Lords, the Minister said that the duty of the Government is indeed, as I am sure we would all agree, to help the poorest in the land. Following the Question of my noble friend Lord Dubs, how does the Minister reconcile that statement with the fact that, from April onwards, some of the poorest families in the land, including something like 1 million children, will lose £40 to £60 per week, over time, from their benefits? What estimate has the Minister made of how many of those families will need to go to food banks in order to survive until they get their payment at the end of the month?

Lord De Mauley: My Lords, with respect to the noble Baroness, we are straying a little from food banks. The difficult economic situation is having an impact on everyone, including workers, who find their wages either being frozen or increasing only by small amounts. The Government have protected poor and vulnerable groups as far as possible while undertaking the urgent task of tackling the fiscal deficit. Work remains the best and most immediate way out of poverty, and we have continued to prioritise providing the best possible work incentives through welfare reform and increasing the personal allowance.

The Lord Bishop of Bath and Wells: My Lords, food banks are usually used in an emergency to stave off hunger. However, there is a risk that people with no other source of food will become reliant on them, including the 60% of those who use them who are already in work. Will Her Majesty’s Government ensure that welfare reform does not leave families more at risk from hunger?

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Lord De Mauley: My Lords, I think I have laboured the point on that enough.

Lord Knight of Weymouth: My Lords, we have heard about the increasing reliance on food banks from a number of noble Lords. We know that a quarter of parents put food back when they get to the checkout in the supermarket because they are struggling with rising prices and falling wages, and that the hereditary poor are increasing again. Will the Minister agree to visit a local food bank with me so that we can thank its volunteers together and ask the recipients whether they are in work and what is their view of benefits reform under this Government?

Lord De Mauley: My Lords, as I said in my initial Answer, I shall shortly be visiting FoodCycle. I agree with much of what the noble Lord says.

Baroness Corston: I note, in passing, that FoodCycle is not a food bank. Would the Minister be interested to know that, during the years of the Major Government, my staff in my former constituency of Bristol East never once received a phone call from anyone in work, in floods of tears, because they could not afford food? I gather that now happens routinely on his watch. Will he please tell us not that he is concerned about poor people who do not have enough food, but what he is going to do about it?

Lord De Mauley: My Lords, in answer to the noble Baroness’s first question, we know that these organisations are part of a complex and community-led response to these issues. There is a range of food aid provision, from very small local provision through to national charities working on the redistribution of food. We welcome the actions of all these organisations working locally in the community to help meet local needs. Of course we are concerned about those who need to turn to charities for food, but we should not suggest that the work of such organisations or the need to help and support the most vulnerable in our society is a recent phenomenon. The use of food banks went up 10-fold under the previous Government.

Forestry

Question

2.59 pm

Asked by Lord Greaves

To ask Her Majesty’s Government whether they plan to introduce legislation in this Parliament to establish the Public Forest Estate management body proposed in their response to the Independent Panel on Forestry’s Final Report.

The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord De Mauley): My Lords, subject to parliamentary time, the Government will look to introduce legislation at the earliest opportunity in order to establish the new

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independent body to manage the public forest estate and hold it in trust for the nation. I declare an interest as a woodland owner.

Lord Greaves: My Lords, I hope the whole House will join me when I thank the Government for the good sense in what they call their “refreshed” forestry policy, when I thank the Independent Panel on Forestry, under the excellent chairmanship of the right reverend Prelate the Bishop of Liverpool, and when I congratulate all those people who rallied some two years ago when they felt that their local forests and woods were under threat.

Does the Minister agree that, following the despair and fear there was at that time, there is now hope and expectation about the future of our public forest estate, to be held in trust for ever for the people of this country, and that there is a real enthusiasm for the Government getting on with their new, refreshed forestry policy, certainly during this Parliament?

Lord De Mauley: Yes, my Lords, we are committed to keeping the public forest in public hands, to maintaining and improving public access to our woodlands, and to increasing woodland cover very substantially over the next 50 years. Everyone has a role to play in managing our woodlands better, as well as in increasing woodland cover. Noble Lords will know that all Governments zealously guard the contents of the Queen’s Speech and these are not divulged in advance. What I will say is that the Government fully intend to do this, and to do it expeditiously.

Lord Clark of Windermere: My Lords, I, too, join the noble Lord in thanking the Government for their U-turn on forestry, which is very welcome. But it is incumbent upon us now to make sure that the new architecture is right and fit for purpose. I have my doubts as to whether we will see legislation in this Parliament. Therefore, the Forestry Commission is going to have to ensure that the forest estate is kept in a suitable state for it to be handed over to the new body. Bearing in mind the massive cuts that the Forestry Commission has had of late, will the Minister give me an assurance that there will be no further redundancies and cuts in the budget of the Forestry Commission?

Lord De Mauley: My Lords, what I will do is confirm that we will support the Forestry Commission to the level required to secure the long-term success of it and its successor. This long-term success includes enabling it to become more financially sustainable through the increased generation of trading income. We have put back £3.5 million into the Forestry Commission’s budget next year specifically to make up for the income that would have come from sales of woodland. We have allocated £2 million to the Forestry Commission to recognise additional pressures arising from Chalara and the importance of implementing the commitments in the IPF response. We will continue to provide funding to ensure that the public can access their public forests and woodland over the remainder of the current spending review period.

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Baroness Sharples: Does my noble friend not agree that with four bodies already dealing with forestry, one more is really one too many?

Lord De Mauley: My Lords, I do not think we are going to have one more, save that we will effectively split the management of the public forest estate away from what Forest Services does.

Baroness Royall of Blaisdon: My Lords, I, too, welcome the Government’s commitment to keep the public forest estate in public ownership and I salute all those campaigning organisations that did a splendid job in changing the mind of the Government. Like my noble friend, I am concerned about the forest estate as it is now. Recently, Ministers have quietly cut 500 Forestry Commission staff and a quarter of the budget, and the admirable chair of the Forestry Commission has resigned. My noble friend quite rightly asked for an assurance from the Minister that there will be no further cuts in the staff of the Forestry Commission. Will the noble Lord answer that specific question?

Lord De Mauley: My Lords, we recognise concerns about the future funding of the estate. However, we continue to face very challenging financial circumstances, requiring hard choices to be made across the whole public sector. The Forestry Commission and the public forest estate have had to bear their share of the cuts that we have had to make to bring public spending under control. Nevertheless, we want to ensure that the public forest estate can continue to provide a high level of public benefits. We are therefore carefully considering the estate’s financial needs for the long term. In particular, we want to place it on a secure financial footing for the future by enabling it to generate as much income as possible through its commercial activities without having to resort to unsustainable land sales to make ends meet.

Lord Cavendish of Furness: My Lords, like my noble friend, I declare an interest as a forestry owner. Does he agree that the present situation, under which the Forestry Commission is my competitor but also my regulator, is intolerable, and will the new arrangement reverse that situation?

Lord De Mauley: That is certainly the intention.

Lord Foulkes of Cumnock: Has the Minister ever experienced any conflict of interest by being both a Defra Minister and a woodland owner?

Lord De Mauley: Yes, my Lords, that it is why forestry is not within my personal policy brief.

Baroness Parminter: Can my noble friend explain why the Government are trying to get rid of tree preservation orders, which was announced as part of the Red Tape Challenge on the same day that they announced their very welcome policy on forestry?

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Lord De Mauley: My Lords, as part of the Red Tape Challenge, tree preservation order regulations have been included on the website. We are not saying that we want to get rid of the regulations or protection for trees. It is a chance for the public to tell us which regulations are working, which are not, which should be scrapped, which should be simplified and what can be done differently.

Baroness Farrington of Ribbleton: My Lords, will the Minister please answer in full the question asked by my noble friend Lady Royall?

Lord De Mauley: My Lords, I consider that I have done so.

Statutory Instruments

Membership Motion

3.06 pm

Moved by The Chairman of Committees

That Lord Walpole be appointed a member of the Joint Committee in place of Lord Rees-Mogg.

Motion agreed, and a message was sent to the Commons.

Immigration and Nationality (Fees) (Amendment) Order 2013

Motion to Approve

3.06 pm

Moved by Lord Taylor of Holbeach

That the draft order laid before the House on 19 December 2012 be approved.

Relevant document: 15th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 29 January.

Motion agreed.

Control of Donations and Regulation of Loans etc. (Extension of the Prescribed Period) (Northern Ireland) Order 2013

Motion to Approve

3.07 pm

Moved by Baroness Randerson

That the draft order laid before the House on 5 December 2012 be approved.

Relevant document: 15th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 29 January.

Motion agreed.

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Civil Enforcement of Road Traffic Contraventions (Representations and Appeals) (Wales) Regulations 2013

Motion to Approve

3.07 pm

Moved by Baroness Randerson

That the draft order laid before the House on 19 December 2012 be approved.

Relevant document: 15th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 29 January.

Motion agreed.

Scrap Metal Dealers Bill

Scrap Metal Dealers Bill

Report

3.07 pm

Report received.


Defamation Bill

Defamation Bill

Report

3.08 pm

Amendment 1

Moved by Lord Puttnam

1: After Clause 1, insert the following new Clause—

“Arbitration Service for defamation and related civil claims against members of Independent Regulatory Board

(1) The Lord Chief Justice shall establish a Defamation Recognition Commission.

(2) Schedule (Recognition Commission) makes provision relating to the Defamation Recognition Commission.

(3) The Defamation Recognition Commission shall certify bodies as Independent Regulatory Boards in accordance with the criteria in Schedule (Recognition Commission).

(4) An Independent Regulatory Board shall provide a recognised arbitration service as set out in Schedule (Specialist Arbitration Service).

(5) A court shall take into account when awarding costs and damages whether either party, claimant or defendant in a dispute has chosen not to use the recognised arbitration service of an Independent Regulatory Board.

(6) A court shall award costs under subsection (5) on an indemnity basis unless the interests of justice require otherwise.

(7) A court may order a successful party to pay all the costs of proceedings if such party has unreasonably refused to use an available recognised arbitration service.

(8) A court awarding in its judgment exemplary damages where a defendant is guilty of a flagrant breach of a defendants rights, can also take into account whether—

(a) a claimant refused to use a recognised arbitration service;

(b) a defendant refused to use or join a recognised arbitration service;

(c) the court shall also take into account whether a defendant first sought advice from a recognised Independent Regulatory Board before publication.”

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

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

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

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

“to hold the terrible silence at bay”.

These amendments are designed to break that terrible silence.

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

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

He went on to say:

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

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

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

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

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

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

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

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

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

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

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

He went on to say:

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

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

3.15 pm

It goes without saying that the arbitration service would not be everything that Leveson recommends, but it is the element of Leveson that cannot happen without the support of Parliament. The courts and the newspaper industry are unable simply to set up their own. Without statutory authority, the courts would not be able to give preferential treatment to those newspapers that used the low-cost arbitration service. That is why the newspaper industry and the courts need our help, which I believe is provided by these amendments. Parliament would be giving power to the courts, and in doing so would be giving recognition to the newspapers’ own independent self-regulation body. Parliament would not—I repeat, not—be taking any new powers unto itself.

The amendments offer us the opportunity to break the logjam that would appear to have afflicted both the talks between the newspapers and the Government and the talks between the three main political parties themselves. At the very minimum, we would have the opportunity to make justice in disputes with newspapers quick and affordable. Now that the issue of cost protection in court actions regarding defamation has been referred to the Civil Justice Council, the Government at present have no declared policy on how they intend to ensure that the defamation courts are open to citizens of ordinary means. If the Government struggle to accept these amendments, then, in a positive spirit, I hope that the Minister can tell us what the Government’s policy in this respect will be and when that might come about.

In asking the House to support these amendments, I also ask noble Lords on the government Front Bench to consider the visible choice that is opening up ahead of them: either to support an arbitration service set up by the newspapers themselves that is all of a piece with the system recommended by Lord Justice Leveson, or to maintain a government position that, when it comes to it, amounts to nothing much more than a refusal once again to allow access to justice for anyone other than the wealthy, the powerful and the influential. I know the Minister far too well to believe for a single moment that that is his intention, but that is the way in which the present Bill, if left unamended, is more than likely to be interpreted. I beg to move.

Amendment 1A (to Amendment 1)

Moved by Baroness O'Neill of Bengarve

1A: After Clause 1, line 9, leave out “in accordance with” and insert “provided that they satisfy”

Baroness O'Neill of Bengarve: My Lords, I have put my name to this amendment to Amendment 1, moved by the noble Lord, Lord Puttnam, because it is urgent to establish an effective, affordable and independent route for resolving claims of defamation. In doing so, I declare an interest as chair of the Equalities and

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Human Rights Commission. Unlike my noble friend Lady Hollins, who also brings the expertise of experience of intrusion and defamation to this debate, I bring only a track record of speaking and writing on the conflict between rights to freedom of expression and other rights, including the right to reputation.

I do not think that it is a matter of dispute that we need a cheap and effective way of resolving claims of defamation. However, the mechanism for resolving such claims needs also to be fair, and that means that it has to be independent not only of the interests of both parties but also of the Government. The noble Lord’s amendment seeks to achieve that. I think that this amendment to the amendment would do so rather more effectively; it is at least more explicit, which enables your Lordships to consider what it would actually take to achieve independence in this matter.

Both amendments build on Lord Justice Leveson’s proposal to create an independent recognition commission that will validate the standards to which any voluntary regulatory body for the media works. Lord Justice Leveson’s proposal is, as we all recognise, ingenious because it offers a way of retaining media self-regulation while requiring that self-regulation to meet adequate standards of fairness and independence as certified by a recognition body. The amendment sets out incentives for media organisations to participate in a voluntary regulatory body—it will be much cheaper for them if that body is recognised by an independent recognition body—and it also sets out incentives for claimants to use the arbitration service. Again, it will be cheaper and quicker.

The complaints system run by the PCC—or should I perhaps say the former PCC?—was in many ways cheap to use, but it had a range of deficiencies, which have been much discussed in your Lordships’ House and in Lord Justice Leveson’s report, and it lacked that crucial form of independence. I do not think that we should pass a defamation Bill that fails to address these fundamental defects. The connections between intrusion and defamation are too close for us simply to overlook them.

The detail of these amendments and of Schedule 17 is complex, although they have been much discussed by those with the relevant drafting expertise. I do not think we are likely to come much closer to satisfying the requirements of all parties. I hope very much that the Minister can indicate that the Government will accept these amendments or at least can indicate that their fundamental purpose will be secured by government amendments at Third Reading. I beg to move.

Lord Lester of Herne Hill: My Lords—

Baroness Boothroyd: My Lords—

Noble Lords: Boothroyd!

Lord Lester of Herne Hill: I am so sorry.

Baroness Boothroyd: Not at all. The noble Lord has the Floor.

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Lord Lester of Herne Hill: One can see why the other place was so well regulated.

It is essential for the three main political parties to reach agreement on what needs to be done to give effect to the recommendations of Sir Brian Leveson’s inquiry. If these amendments are designed to put pressure on the coalition Government to achieve that aim, they are most welcome. But if they are intended to become part of this Bill, then I cannot support them, despite the great authority of their supporters, including a former Lord Chancellor, a former Attorney-General, and my old friend and Cork neighbour, the noble Lord, Lord Puttnam. I am not aware that he took much part in the earlier deliberations on the Defamation Bill, and most of what he said about the Bill is wrong, but I am not going to go into the details now because I do not think it is relevant. The Government have done a great deal to secure a Bill that balances reputation and free expression, tries to deal with the abuses of costs, procedural rules, downscaling and so on and so forth. It is not a Bill, as the noble Lord suggested, that has been written by the newspaper industry. In its original form, it was written by me, and I made quite sure that the original Bill and the Government’s draft Bill were not like that at all. That is not relevant to what we are now considering.

I made clear during the debate on Leveson that I support statutory underpinning to make press self-regulation effective and that my little Bill is intended to do that. I shall, if necessary, introduce a Bill on those lines in the next Session, no doubt improved by this debate. I want to make it clear that I have strong objections to excessive statutory intervention, including the use of exemplary damages as a sanction, which was twice rejected by the previous Labour Government as punitive, but which the draft Bill put forward by the noble and learned Lord, Lord Falconer, for some reason includes. The sanction of exemplary damages is likely to be in breach of the convention right to freedom of expression, especially when read with the coercive amendment punishing publishers who fail to seek clearance pre-publication from a statutory regulatory board. During the Leveson debate, I pointed out that Mr Justice Eady had set out in detail in his judgment in the Mosley case,

“why it would be wrong in principle and a violation of free speech to extend exemplary damages”.—[

Official Report

, 11/1/13; col. 374.]

That was the position of the previous Labour Government.

The concept of pre-clearance and punitive damages was also rejected by the European Court of Human Rights in its judgment of 10 May 2011 in the Max Mosley case, in which I intervened for Guardian Newspapers. The European Court decided in paragraph 129:

“Although punitive fines or criminal sanctions could be effective in encouraging compliance with any pre-notification requirement, the Court considers that these would run the risk of being incompatible with the requirements of Article 10 of the Convention … It is satisfied that the threat of criminal sanctions or punitive fines would create a chilling effect which would be felt in the spheres of political reporting and investigative journalism, both of which attract a high level of protection under the Convention”.

The Leveson inquiry was concerned with serious press misconduct involving gross media intrusions on personal privacy. The Bill before the House is, as

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its Long Title makes clear, a Bill to amend the law of defamation. It is not a Bill to amend the law of privacy. These amendments would stretch the scope of the Bill beyond its object and purpose by referring to what is described as,

“defamation and related civil claims”,

to include, apparently, violations of personal privacy. They cannot do so, and therefore do not address the central concerns of the Leveson report, but seek to use this Bill as a vehicle which was designed for a very different journey.

Leveson recommended an arbitral process in relation to civil legal claims that, as the noble Lord, Lord Puttnam, has said, would be,

“fair, quick and inexpensive, inquisitorial and free for complainants to use … The arbitrator must have the power to hold hearings where necessary but, equally, to dispense with them where it is not necessary”.

It would seem that Sir Brian Leveson did not consider whether what he proposed would be compatible with Articles 6 or 10 of the convention. It is unclear whether the movers of these amendments intend Part One of the Arbitration Act to apply. It is also unclear whether they intend the arbitration arrangements to be voluntary and entered into freely. Apparently they do not intend that, and the amendments are silent on these crucial issues.

Article 6 of the convention guarantees a fair and public hearing in the determination of civil rights and obligations by an independent and impartial tribunal established by law. In Paul Stretford v Football Association—where the noble Lord, Lord Pannick, appeared for the FA—the Court of Appeal examined the relationship between an arbitration agreement and Article 6 of the convention. The Court of Appeal considered that the provisions of the Arbitration Act were important in the context of Article 6, because the Arbitration Act, unlike these amendments, provides for a fair hearing by an impartial tribunal, and its mandatory provisions ensure that the High Court has the power to put right any want of impartiality or procedural unfairness. The Court of Appeal noted that the Strasbourg jurisprudence has made it clear that the arbitration agreement must be voluntary and not compulsory. It said:

“By compulsory in this context is meant required by law”.

The scheme envisaged by these amendments is inquisitorial and not adversarial. It is not a voluntary scheme because of the threat of exemplary damages for failure to use a recognised arbitration service. The arbitrator does not satisfy the requirements of judicial process by an independent court or tribunal established by law. The arbitrator can dispense with hearings in his or her discretion. There is no right of appeal to an independent court or tribunal and the process is free for complainants but to be paid for by the press. In my view, such a scheme would be incompatible with Articles 6 and 10 of the convention. It would result in complex legal disputes.

3.30 pm

The amendments would give the arbitrator the power set out in Sections 48(3) to (5) of the Arbitration Act 1996 but it does not provide whether the mandatory

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and non-mandatory provisions of Part 1 of the Arbitration Act and related civil procedure rules would apply. That is a further major flaw. I would not expect the noble Lord, Lord Puttnam, to deal with that but I hope that others who are legally qualified will do so before we end this debate.

The amendment would require the Lord Chief Justice to establish a defamation recognition commission but he is the Lord Chief Justice only of England and Wales. It is intended that the Act will, with the consent of Scottish Ministers, apply to Scotland. The Lord Chief Justice is the wrong judicial officer in any event to perform that task.

I remain firmly in favour of effective press regulation with only necessary statutory underpinning of the kind envisaged by my little Private Member’s Bill. But these amendments are manifestly excessive and, in my view, manifestly incompatible with the convention and the Human Rights Act. Therefore, I cannot support them.

Lord Fowler: My Lords—

Baroness Boothroyd: My Lords—

Lord Fowler: My Lords, I was going to say “Mr Speaker”, but I will not. I do not intend to follow entirely all the points made by my noble friend Lord Lester, but I agree with him that this does not entirely give effect to the Leveson report, and nor could it, given the confines of the Defamation Bill. The amendments do not deal with the complaints process or, more to the point, the way in which any complaints process is periodically verified. On the other side, it does not set down a legal duty on the Government to protect the freedom of the press.

The questions are whether the amendment can be seen as a building block in implementing Leveson—a kind of stalking horse, although perhaps we have enough stalking horses flocking around just at this moment—and whether it deals with some of the evils or disadvantages, one in particular, that Lord Justice Leveson exposed. My noble friend Lord Lester obviously prefers the solution of his own Private Member’s Bill. I do not entirely disagree. I think it would be an excellent Bill. I just think that the chances of it being passed are practically zero, so I do not regard it as a realistic option. If we reject this proposal, I do not think that the Government are going suddenly to fall over and say, “Well, Lord Lester, you can go ahead now with your Private Member’s Bill and we will put all our effort behind it”. I just do not think that that is realistic. The answer is that this Bill gives many of the advantages that we want.

One of the long-standing complaints about dealings with the press is that a serious complaint to the editor fails, as it often does, and then the only option is legal action. But most of us would take the view that a libel would have to be absolutely fundamental to persuade us to take legal action. The outcome is far too uncertain and the cost is only too certain. That is why legal action is all too often seen as a remedy open only to the rich.

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Lord Justice Leveson considered this question and set out quite clearly his view at paragraph 66 of the summary. He said that there was a “need for incentives” to persuade publishers to join the new procedure but that, in addition, there was a need for,

“the equally important imperative of providing an improved route to justice for individuals”.

That had led him,

“to recommend the provision of an arbitration service that is recognised and could be taken into account by the courts as an essential component of the system, not (as suggested by Lord Black) simply something that could be added at a later date”.

He said that it was “an essential component”. That is precisely what it is.

Also, the amendment clearly puts the intention into practice. I do not intend to go into all the detail of it, some of which can doubtless be improved, including by meeting some of the points about drafting made by my noble friend. We can come to those. The important thing is that the principle has been recognised, and the amendment gives us the opportunity to vote on this matter and serve notice on the Government that this is one of the areas where we want progress.

There are two other reasons in favour of the amendment. First, the Leveson report was published at the end of November. Since then, we have waited and waited for action, but, instead, some newspapers, sensing a weakness of intent, have continued to attack Leveson in the most lurid and extreme manner, and often quite inaccurately. Perhaps I may quote from this morning’s Sun editorial, commenting on the Chris Huhne case. It states:

“Those urging a Leveson law to muzzle the Press should reflect hard on yesterday’s … events”,

and adds, “No wonder” the Deputy Prime Minister,

“backs a law to silence newspapers”.

The Sun goes on to say that,

“in the post-Leveson climate, many at Westminster want papers stopped from investigating scandals like this”.

One wonders who these “many” people are. Frankly, I do not know of any people who want to muzzle the press and prevent the exposure of scandals. While I think it is the biggest nonsense to propose that that is the case, I also think that people want some redress when they are the victims of injustice. That is what the public actually want.

I very much hope that by passing the amendment, which would set up an arbitration service, as proposed by Leveson, it would at once establish the truth of Leveson—that it is to the benefit of the public, and as the noble Lord, Lord Puttnam, has said, to the benefit of the press. Indeed, the amendment is quite obviously to the benefit of the press. In other words, it inserts truth for the kind of smears that we have been all too used to over the past months.

The second reason why I support the amendment is because the present way of dealing with the Leveson proposals is woefully inadequate. It has brought nothing forward, although everyone at the time said how urgent it was to make progress. The process itself is open to severe objection. In paragraph 84 of Leveson’s report, he says,

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“The suggestions that I have made in the direction of greater transparency about meetings and contacts should be considered not just as a future project but as an immediate need, not least in relation to interactions relevant to any consideration of this Report”.

“Greater transparency” is not exactly how I would describe what has been happening over the past two and a half months since Leveson reported. We hear mutterings about a royal charter, but there has been no attempt whatever to engage the public or, for that matter, very many politicians in this discussion. Doubtless, a magic circle of them has been engaged, while the press itself shows an almost total lack of inquisitiveness about what is going on. It is such a contrast to what happens in almost every other area where the press is for ever trying to find out what is going on. In this case, it does not seem to be trying to find out what is going on at all.

I say simply to my own Front Bench that in the circumstances of this “news blackout”, with no assurance that the Government intend to act sensibly, I can see no objection whatever to this House suggesting to the Commons a sensible path that I think would have the support of the public. The amendment is good for the press. Above all, it is good for the public, and I support it.

Baroness Boothroyd: My Lords, I spoke in the debate on the Leveson report, so I shall certainly not weary the House this afternoon. Let me start by saying that I take no pleasure in what has befallen the newspaper industry in the past few years. I am sure that no one wants to see journalists facing criminal charges, but who among us is proud of the way in which newspapers are now perceived? I believe that the amendments before us would help the newspaper industry to re-establish itself as that trusted investigator it once was, bringing the news to the nation fearlessly and accurately and holding us all to account.

I said in my speech during the Leveson debate that many of the transgressions happened because of the culture of some newspapers whereby they grew to believe that they were untouchable. It is that culture that must be changed. It can be done with the establishment of a new complaints procedure for the public which, as the noble Lord, Lord Fowler, touched on, allows problems and issues with the press to be nipped in the bud at an early stage and dealt with.

We need a system that allows the citizen to raise their complaint in a low-cost and non-adversarial way. Newspapers must be required to meet and hear those with appropriate complaints against them. A robust arbitration service will, I am sure, help to change the culture of newspaper reporting and improve on the current mentality that everything and everyone is fair game for them.

This Government and all previous Governments over the past 60 years should have taken action and never did. Yet after seven royal commissions or parliamentary inquiries and the spending of a lot of public money, it will no longer suffice to be told that there will be an announcement “tomorrow”. It reminds me of the very famous line in “Gone with the Wind”: “Tomorrow is another day”. We have run out of tomorrows— tomorrow never comes.

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It is today that we have to deal with, and it is today that your Lordships must take action. This House must step forward and help our leaders to take the action that they themselves have found difficult. Passing these amendments now does not prevent the Government improving on them should they choose to do so—as the noble Lord, Lord Fowler, said, they are a sort of building block—but the amendments say quite clearly that time has run out and we must take action this very day. I hope that the House will support them.

Lord Faulks: My Lords, for those of us who were involved in the Committee stage of the Defamation Bill, this is a surprising and exciting development on what might have been regarded as some of the more dry amendments that were then before the House. However, it is important—I declare an interest as a practising barrister with some experience of the law of defamation—that we bear in mind that this is an amendment to the Defamation Bill. It should not be thought that all claims by those who say they have been defamed result in full-scale trials. Thanks largely to the intervention of the noble and learned Lord, Lord Woolf, and the Civil Procedure Rules, and to initiatives by the noble and learned Lord, Lord Irvine, by way of protocols, much has been done to improve the way defamation actions are heard.

3.45 pm

I am sure that the House would like to know about the protocol that currently exists in relation to defamation. Parties are encouraged to,

“consider whether some form of alternative dispute resolution procedure would be more suitable than litigation, and if so, endeavour to agree which form to adopt”.

They may be,

“required by the Court to provide evidence that alternative means of resolving their dispute were considered. The Courts take the view that litigation should be a last resort, and that claims should not be issued prematurely when a settlement is still actively being explored. Parties are warned that if the protocol is not followed … the Court must have regard to such conduct when determining costs”.

That is very much along the lines of the amendment, but the end of the protocol contains a very important proviso that says:

“It is expressly recognised that no party can or should be forced to mediate or enter into any form of ADR”.

As my noble friend Lord Lester pointed out, that is partly because of Article 6 of the convention. I appreciate that this amendment is to do with building blocks or stalking horses and so forth. Yet it is, I respectfully submit, contrary to the European Convention and out of synch with the law of defamation. It should be resisted.

Baroness Hollins: My Lords, as an expert by experience of press abuse, I consulted Hacked Off, the charity that has represented many victims of such abuse, and asked its views of the amendment of the noble Lord, Lord Puttnam. There is widespread frustration about the lack of transparency and presumed lack of progress on implementing Lord Justice Leveson’s recommendations. Given this, Hacked Off is extremely grateful for the initiative taken by the noble Lord, Lord Puttnam.

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However, its advice to me was that, as they stand, the amendments appear a somewhat diluted version of Lord Justice Leveson’s recommendations. The amendments that I and my noble friend tabled are offered in the spirit of trying to be as faithful to Lord Justice Leveson as possible and thus to command wider support.

Many victims fear that a deal is being brokered with the press behind closed doors, one that does not include the independent element that Lord Justice Leveson considered so important. Hacked Off’s advice was that the characteristics of the regulator need to be detailed enough so that implementation of Lord Justice Leveson’s criteria is not fudged. Interestingly, most of the draft Bills already published spell out the criteria in some detail.

The public expect the Leveson report implemented as published. They expect robust arrangements to be put in place. They also expect an independent regulatory board to be set up that that will provide an arbitration service, and that these measures will provide protection for innocent members of the public, both with respect to defamation and intrusion. I hope that noble Lords will support the amendment of the noble Lord, Lord Puttnam, and accept that some further amendment of the detail may be needed.

Lord Skidelsky: My Lords, I have only one point to make. The noble Lord, Lord Lester, said that these amendments in effect introduce Leveson by the back door into a Bill dealing with other matters. To my mind, that is an important merit of the Bill because we are unlikely to get Leveson through the front door. I particularly emphasise the point that these amendments are the best chance we have of getting the Leveson proposals implemented in their full integrity. The amendments are about access to justice. They would put in place two fundamental elements of Lord Justice Leveson’s proposals, namely means of legal redress for ordinary people if their rights are breached and a fair and independent system to deal with complaints against the press. I doubt whether those who support these fundamental elements will get another chance, or at least as good a chance as now exists, to have these principles embodied in law. The private Member’s Bill of the noble Lord, Lord Lester, will not afford the same chance, for reasons given by the noble Lord, Lord Fowler. If we fail to take advantage of this opportunity, we will in effect kick Leveson into the long grass. The amendments would make the Defamation Bill relevant to the entire population instead of just to the rich, and it is vital that we support them.

Lord Phillips of Sudbury: At Second Reading, I devoted most of what I said to the issue of access to justice. I take my hat off to the noble Lord, Lord Puttnam, and his supporters, as well as the noble Baronesses, Lady O’Neill of Bengarve and Lady Hollins, for concentrating on the huge lacuna in this Bill and in the law of defamation generally. Let no one be under any misapprehension as to how unjust our law of defamation is. I speak as one solicitor—long in the tooth, it must be said—who has dealt over the years with defamation, from time to time. It is a scandal how

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much it is a plaything of the rich, completely beyond access by people of even ordinary means. So I am wholly emotionally in favour of what is intended by this set of amendments and the schedules.

I have listened to the noble Lord, Lord Lester, who never speaks with less than authority. At first hearing, I am not sure how all the points that he made would impact, but I accept at large what he has said. One has to hope that my noble friend Lord Fowler is correct, and that if we pass this set of amendments today the defects in them can be rectified either at Third Reading in this place or in the House of Commons or when it comes back to us. I am convinced that to leave this for another day would not be responsible of us—as the last speaker said. We must take the chance that we now have, defective though the amendment may be.

I add only one detailed point. My noble friend Lord Lester said that he was wholly opposed to the notion of exemplary damages pretty well willy-nilly. At least subsection (8) of Amendment 1 talks about exemplary damages for,

“a flagrant breach of … rights”,

of the claimant. Given the sensitivity of the relationship between the press and the citizenry, it might be an acceptable use of what is generally not desirable—exemplary damages, or the concept of it—in respect of a “flagrant breach”. Incidentally, subsection (8) of the amendment has in it a serious misprint. It talks about breach of a defendant’s rights when it should refer to a claimant’s right. That is but one of several matters that could and, I hope, will be improved in the course of this Bill through the two Houses. On that basis, I am in favour of the amendments going through.

The Archbishop of York: My Lords, first, I apologise that I was not in Grand Committee when the Bill was going through. The noble Lord, Lord Lester of Herne Hill, always speaks with great authority on human rights and the conventions, but I would have thought that this was not the Third Reading of the Bill. If it were, we would be coming to the end of the game. This is Report, so the noble Lord, Lord Lester, might put right the defects in the amendments so that when the Bill comes back at Third Reading it will be amended. So that argument does not hold water.

In the end, it is to do with trust. If trust is absent, what do you do? We all want to trust our newspapers, but what happens when there is no trust? The amendment proposes an:

“Arbitration Service for defamation and related civil claims against members of Independent Regulatory Board”.

Because it is to do, first of all, with a question of arbitration, I am attracted to it. I am attracted to it because the preacher from Galilee said that, if you have a dispute with your neighbour, it is better to try to settle it before you go to court, because when you go to court you may find yourself being given such a stiff sentence that you end up losing doubly. Therefore, I am attracted by the whole question of arbitration. The courts, of course, can look at whether the parties were willing or unwilling to engage in arbitration. If a person has been wronged and another person does not think that is the case, arbitration obliges them to have a conversation. It seems to me that we should accept

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Amendment 1 at this stage. Then the Government can perhaps suggest alterations to it. Certainly, the noble Lord, Lord Lester, is always very assiduous in correcting things that are not well put. Perhaps he can suggest alterations to the amendment.

I am not persuaded by the part of the amendment in the names of the noble Baronesses, Lady O’Neill and Lady Hollins, which seeks to delete subsections (5) to (7) of the proposed new clause in Amendment 1, although I may be persuaded by other parts of their amendment. Those subsections are very important. They set out what needs to happen. Therefore, I urge your Lordships’ House to pause and consider whether we really think that only the rich ought to have recourse to a remedy in defamation cases. The ordinary citizen could find redress very easily and quickly through arbitration. The press ought to welcome arbitration because it would cost far less than an elaborate court case, which may collapse in the end after a lot of costs have been incurred. When there is no trust, what do you do? You want to be in a position to rectify your situation. For those reasons, I support Amendment 1 and resist deleting proposed new subsections (5) to (7) from it.

Baroness Kennedy of The Shaws: My Lords, I, too, support these amendments. I always listen with care when I hear the noble Lord, Lord Lester, speaking about human rights because of his great experience and his important role in our nation in arguing for human rights. However, I take issue with his interpretation of Article 6 and the statement that any kind of arbitration in this field would in some way contravene that article. The whole purpose of human rights is to empower the weak and to recognise the ways in which due process can often disadvantage those who have no money. The purpose of arbitration in this context is not simply to speed things up or to move things along. Much of our arbitration concerns two parties coming together to try to find a smoother way to deal with something, but in this context the purpose of arbitration is to redress the fact that our current system disadvantages whole tracts of people who cannot afford to go to litigation at all. I think you would find that the courts would not accept the literal interpretation of this concept on the part of some of our colleagues. The noble Lord, Lord Faulks, also said that this provision would be a contravention of human rights. I think you would find that the courts would take a very different view.

Lord Lester of Herne Hill: I am grateful for that but I think the noble Baroness does not understand what I was saying, which is my fault. I was saying that the Arbitration Act is a perfectly fair way of tackling this issue but these amendments do not give effect to that Act and a right of appeal. If they did so, it would be quite a different matter. I was trying to explain why they do not. For that reason, they violate Article 6 as well as Article 8.

Lord Black of Brentwood: My Lords, I should declare an interest as chairman of the Press Standards Board of Finance and executive director of the Telegraph Media Group. I have the greatest admiration for the noble Lord, Lord Puttnam. He and I have made

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common cause on a number of things over the years. However, we rarely agree on issues of regulation and I am afraid that I will not disappoint him today because I believe that what he is proposing is unnecessary. It is unnecessary for this House to intervene statutorily in press regulation and to deliver an arbitration service. Actually, it would be counterproductive and set back the delivery of the arbitration system which is currently being worked on.

As noble Lords will know—my noble friend Lord Fowler mentioned it just now—I have been working with my noble friend Lord Hunt and others to build a new independent regulator with tough powers backed by the force of contract law. An arbitration system is a central part of that, and it is important that I explain how it would fit in, not least in dealing with the news blackout that my noble friend Lord Fowler mentioned.

4 pm

In July last year, I presented detailed proposals to the Leveson inquiry for a new regulatory system. That proposal foreshadowed an arbitration system which would deal with both defamation and privacy. My third witness statement said:

“The industry is extremely keen to pursue this—believing it will be good for the public and good for the industry at the same time—and believes that the structure that is being proposed will be flexible enough to allow such a … development”.

It is important to make the point that it would deal with privacy as well as with defamation.

That was one of the ideas that Lord Justice Leveson enthusiastically backed, but his report made it very clear that he wanted the arbitration system to be part of the industry’s own self-regulatory mechanism. In Part J, Volume IV of his report, he says that he considers it,

“very important that the arbitral system should be one part of a regulator”.

Since the report has been published, the industry has been working extremely hard with the Government to finalise the details of a regulatory scheme. Much progress has been made on the development of a contract, regulations and governance to deliver a genuinely independent regulator. The arbitration service will be a very important part of that. There are issues around it which are very complex and which need a great of work if it is to function properly, but to deal with the point that the noble Lord, Lord Skidelsky, made, there is no question of kicking this into the long grass.

Noble Lords: Oh!

Lord Black of Brentwood: It is going to happen, and my lawnmower is out in force already. Media lawyers from across the industry are working flat out to establish a scheme that will be good for the public but not an intolerable burden on the regional press in particular. Crucially, we have to find a scheme that will not simply be a new cash cow for claims farmers. The scheme proposed by the noble Lord, Lord Puttnam, does not address the legitimate concerns—of the regional press in particular—about the problems that might be unleashed. Therefore, there is more work to do but excellent progress has been made.

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What would stop it dead in its tracks is any attempt to establish a scheme by statute. There would be little point in a regulator setting up a scheme and the industry funding it if it were simply to compete with other bodies. If this amendment is agreed today, work will be likely to stop tomorrow because of the potential for what is in effect regulatory chaos. There is nothing in the scheme proposed by the noble Lord to stop the proliferation of a number of statutory regulatory bodies with different functions, codes, arbitration schemes and so on, and so it raises the potential for competition between regulators.

The truth is that no such statutory intervention will be necessary to set up a scheme that will be of real benefit to the public. We are clear that it can be delivered under the Arbitration Act 1996, which requires arbitrators to be impartial, to act fairly, to have rights of appeal and so on.

Legislating in this way is fraught with difficulties, as well as being unnecessary. As I have already said, it is a recipe for regulatory chaos. There is a danger of dragging senior members of the judiciary and the Civil Service Commissioners into matters of public controversy, and that would be highly undesirable. There are also serious concerns about whether such a compulsory scheme would be compliant with Article 6 of the ECHR, as the noble Lord, Lord Lester, said.

This is an excellent Bill but it is a liberalising measure designed to secure freedom of expression as well as protect the rights of the public. It therefore seems deeply ironic that what is being proposed is the introduction of a system of statutory supervision—press regulation—with the massive constitutional implications that that would bring. I regret to say that I believe the amendments are ill thought through, misguided and likely to prove unworkable. The most important point is that it would stall the initiative by the newspaper industry, which wants to deliver real change that will be of lasting benefit to the public. I do not believe that that is what the noble Lord or anyone wants, so I urge noble Lords to reject the amendment.

Baroness Jay of Paddington: My Lords, I am delighted to follow the noble Lord, Lord Black, who did not take part in our debate on Lord Justice Leveson’s report because he was abroad. I spoke in that debate and remind the House, and the noble Lord, Lord Black, that my main point was about the system that has existed very successfully for some years in Ireland, where many of the recommendations made by Lord Justice Leveson for the United Kingdom have been implemented simply and with no regulatory competition. That was done in the session of the Dáil in 2008-09 by inserting a clause into the Irish defamation Bill—a process that is very similar to the one being proposed by my noble friend Lord Puttnam this afternoon. I explained it on the occasion of the previous Bill and, like the noble Baroness, Lady Boothroyd, I shall not weary the House by going over all the details of the Irish situation again as those interested in this topic are already very familiar with them. Let it be said that the regulations are very similar to those proposed by Lord Justice Leveson and, indeed, the most important thing from the point of view of those seeking redress

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for press complaint is that the guiding notes say that the system is open and free to any citizen, dependent simply on the price of a letter or sending an e-mail. I am very happy to support the amendment.

Baroness Scotland of Asthal: My Lords, how fascinated I have been by this debate. As one of the proposers of the amendment, it is only appropriate that I speak now. I very much regret that the noble and learned Lord, Lord Mackay of Clashfern, is unable to be in his place. I had the advantage of speaking to him this morning and he is clear that he wholeheartedly supports the amendment. I had intended, after his erudite and elucidating speech, to simply say that I agree.

However, the importance of the speech of the noble Lord, Lord Black, cannot be understated. He said that the amendments were unnecessary because we would have a system in due course that would suffice. That is a bit like one of the saints saying, “Make me chaste, Lord, but not yet”. We have been waiting for some 65 years for redress. One of the reasons why the noble and learned Lord, Lord Mackay of Clashfern, is so concerned about taking this opportunity is because, as many of your Lordships will know, in 1993, when he gave evidence before the Select Committee, he suggested that we should have an arbitration system to give redress to the poor, to the needy and to those who would have no redress but for the creation of such a service. We have lived with inequality and inequity for a great number of years. Our House and the other place have regularly been asked to redress that wrong—that mischief that we have spoken about so clearly today.

We have an opportunity to choose, if we wish, to redress that balance. The noble Lord, Lord Black, said that the matter is not being kicked into the long grass. Well, if this is not long, I do not want to see short. We know that we have to grasp this opportunity if we wish to see change. The amendments in this group are not perfect; none of the noble Lords who tabled them suggests that they are. However, they are a vehicle that we can use with great efficiency and energy to enable the Government to be clear that we wish to see this redress.

The noble Lord, Lord Lester, rightly pointed out a number of issues. I say to him that there are a number of things on which perhaps I do not agree with him. For instance, on the back of the Bill it states that the Bill—Clause 3 et cetera—does not refer to Scotland. There are lots of things that we need to debate.

We are faced with a choice. The people of this country have been thirsting for change. Do we take this opportunity to slake their thirst or do we say, “No, you must wait even longer.”? I urge the House to give the other place and the Government the encouragement they so clearly need. It is an opportunity—and if the noble Lord, Lord McNally, would like to grasp it, there will be no one happier than we on these Benches.

When we debated amendments on the Legal Aid, Sentencing and Punishment of Offenders Bill, as it then was, the noble Lord, Lord McNally, assured us that:

“The Defamation Bill and the procedural reforms that we intend to take forward with it are of course about reducing the complexity and therefore the expense involved. In order for those

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aims to be achieved, we will look at the rules on costs protection for defamation and privacy proceedings for when the defamation reforms come into effect”.—[

Official Report

, 27/3/12; col. 1332.]

The vehicle that the noble Lord identified was this Bill.

There is a lacuna because, for one reason or another, the Government have not been able to take advantage of that opportunity. Let us, with the generosity of spirit for which this House is renowned, give them that opportunity today. I will vote in favour of my noble friend’s amendment if he is minded to press it, and I hope that the whole House will join us.

Baroness Afshar: My Lords, I will interject on behalf of communities that, for lack of resources, have not been able to resist wholesale defamation. I speak about Islamophobia and the way in which it was fuelled because certain young men did something that was considered evil by the total Islamic community. However, for weeks we had “Muslims” as a category identified as terrorists and potential murderers. I would certainly have been willing to take them to court if I had had the resources. Undermining minority rights is simply not acceptable. Therefore, I support the amendments in this group.

Lord Hunt of Wirral: My Lords, I did not want to pre-empt any other Back-Bench contributions. I declare my interest as the independent chair of the Press Complaints Commission, and my other interests that are set out in the Register.

When we debated the Leveson report on 11 January, I reported to the House that I was confident that I could deliver a fresh start and a new body with teeth,

“with comprehensive sign-up right across the newspaper and magazine industry by the middle of this year”.—[

Official Report

, 11/1/13; col. 386.]

To those who are worried about perceived delay, that is still my intention—and I will deliver on my pledge.

I confess that I have a great deal of sympathy with many of the contributions made so far today. Those of us who have turned every page of Lord Justice Leveson’s report will remember that on 25 November, on the day of publication, I welcomed the report and said that I would now ensure that the new regulatory body would be Leveson-compliant. That is my position today. However, I sense and feel the frustration that it was as long ago as July 2011 when the leaders of all three main political parties said that the PCC must go, a new body must be set up and a new regulatory system established, and that it is now two months since the Leveson report was published.

4.15 pm

The first point I wish to make is that I have attended some, not all, of the negotiations and I have seen no evidence of delay. I put that on the record because I have been there. Indeed, I have been struck by the candour of the exchanges, by the considerable degree of consensus on accepting the architecture proposed by Lord Justice Leveson, and by the fact that everyone appears to be negotiating in good faith and in genuine hope of reaching a common position. I remind the House that we are not dealing with a few publications

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sited in London; I am speaking on behalf of all those who attended an open meeting I called last month when representatives of 5,000 editors and more than 200 publishers attended. I hope the House will allow me to give an update of where we are.

On re-reading Lord Justice Leveson’s report, I am struck by the number of times he states, very clearly, that what he advocates has nothing to do with statutory regulation. Indeed, statute is unnecessary. He said that he wanted to see,

“genuine effective independent regulation in the public interest”,

established by the industry itself. I gave up when the number of times he said that in his report hit double figures. I commend the report to those who are interested because, in turning page after page, you are reminded all the time that it is up to the industry to set up this new body.

I have no history here. Although I recognise that there are many in this House who have a more distinguished history and connections with the press, I have had no connection with the press at all apart from being severely criticised on more occasions than I can remember. However, I sense that we now have consensus on almost every aspect of the new structure, and perhaps I may give a more detailed analysis. There will be a far more open and transparent appointments procedure and an independent majority at every level of the organisation. There will be a new standards arm with the power to undertake in-depth investigations where serious or systemic breaches of the code are believed to have taken place. For the first time ever there will be fines, as and when such breaches are established. There will be enhanced powers to require the prominence of corrections. The board of the new body will be represented on the committee that draws up the code and will have a veto on any possible changes to it.

I am greatly heartened that I can report to the House that all the publishers in the newspaper and magazine industries are willing to move forward as one, with one or two exceptions. However, the public need to know where everyone stands. There should be one code embodying generally accepted standards and overseen by one regulatory authority with real teeth. On page 1779 of the report, Sir Brian acknowledges this. He says:

“I would strongly urge that it is in the best interests of the industry and the public that a single regulatory body should establish a single set of standards on which the public can rely”.

As is already evident, there are two particular problems. As far as I understand the situation, the only outstanding areas of controversy and disagreement relate to the proposed arbitral arm and the method by which the new regulatory structure will be verified. I will deal briefly with each of these points, because they go right to the heart of this debate.

The noble Lord, Lord Puttnam, has very helpfully provided colleagues with a two-page briefing note. My eye was drawn immediately to paragraph 14, which he referred to in his opening speech, where he quotes me in the evidence I gave to Lord Justice Leveson. But the paragraph opens with the statement:

“An Arbitration Service on this model is supported by the newspaper industry”.

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I am sure that there was no intention to mislead, but that is not the case, because it is the proposed arbitral arm that is dividing the industry. With good reason, many in the national press are strongly supportive because it would help them in their work of challenging international corporations and others with deep pockets. At the opposite pole—and I have spent the past few weeks going round the local and regional press—many of those editors believe that a whole new class of what they describe as potentially ruinous actions could be created.

Sir Brian is vague—I think intentionally—on the details of this arbitral arm. In his report, Sir Brian accepts the view, which has been expressed by many in this House, that there should be no role for compensation within the complaints function of the new regulatory structure. I reiterate that because one or two confusing comments were made earlier in this debate. The arbitral arm he proposes will not deal with breaches of the code but with existing claims under civil law. It would be designed to improve access to justice.

I see the noble and learned Lord, Lord Woolf, in his place. He will recall that when the Legal Services Bill was passing through this place, he and I joined together to ensure that access to justice was put right at the heart of the new system, and that is where I still am. Although the arbitral arm would improve access to civil redress for some people who currently have no access to the system, it would not create any new course of action. If the arbitral arm is to achieve the rather limited but tightly defined objectives set out by Leveson, it needs to be very carefully constructed. I am sure that a Leveson-compliant system can be constructed, but it must not be erected at what could be ruinous cost to the local and regional newspaper sector.

I understand that media lawyers from the whole industry are still meeting to discuss this. They are nearly there, they told me, just before this debate started. This is no time to start telling them, “This is now going to be imposed on you because you have not yet come up with the solution”.

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

Lord Puttnam: I would make one point to the noble Lord, because I think that he is picking unnecessarily at what I said. He was clear that he believes himself to be an independent chair. He is not an independent

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chair. He is an appointed chair, appointed on the basis of his rejection of statutory regulation. That is the position that he comes from. He is an extremely persuasive speaker, but it is very important that he does not claim independence. He is not in any sense recognised by the House as independent on this issue.

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

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

Baroness Jay of Paddington: My Lords, I hesitate to get into the detail of this and do not wish to weary the House, but surely the point made by the noble Lord a few minutes ago about what I said about Ireland is that the legal recognition of the system—indeed operated by the industry—is precisely what he is asking for and what Lord Justice Leveson was asking for. Presumably, had the Irish community and the Irish Government felt that it was adequate, there would have been no need for the legal underpinning. It was to reinforce the industry-owned arrangements that the legal underpinning was established.

Lord Hunt of Wirral: The noble Baroness is quite right. I have spoken many times to Professor Horgan and to the Irish press council. Much of what I am seeking to introduce in the new Leveson-compliant body will follow the lessons learnt in the Republic of Ireland. All that I was seeking to point out to Lord Justice Leveson was that as soon as you go down any statutory route, which requires a Bill—I added this after I had made my comment about the Defamation Bill—you would be opening Pandora’s box. I suppose that the proof of that is the revised Marshalled List of amendments, because we are now getting into quite complicated territory.

I think that the way forward is, yes, to hear from the Government what has been happening in these three areas—

Lord Lester of Herne Hill: My Lords, I am sorry to interrupt my noble friend, but—

The Countess of Mar: My Lords, this is Report, and the noble Lord has had his say.

5 Feb 2013 : Column 161

Lord Lester of Herne Hill: Is my noble friend Lord Hunt saying that he would oppose any form of statutory underpinning, even my little Bill? Is that his position?

4.30 pm

Lord Hunt of Wirral: Not at all, and I am very grateful to the noble Lord for enabling me to clarify the position. The noble Lord, Lord Puttnam, was quite right to say that I referred to a possible amendment to the Bill. However, I was talking not about this Pandora’s box but about the recognition of a code, just as we recognise codes in the Data Protection Act. We recognise codes in statute and I can see that there is a place for that.

In conclusion, where do we go from here? It is very important that this House should not start imposing detailed, prescriptive clauses that are not in Lord Justice Leveson’s report. His wish was to see an independent regulatory body established.

I will just mention that it will not have escaped the notice of the House that another important debate is taking place at this very moment in another place. The two debates may seem to have nothing at all in common, except of course that they have the same Secretary of State, but I believe they are both important because both have significance far beyond their obvious and immediate import. Both debates are about the proper role of the state. In both cases, the world is watching to see what sort of country we want to be. Will we assert our belief as free citizens and organisations taking greater responsibility for our own lives and actions, and our support for freedom, diversity and fair and equal treatment before the law?

I ask your Lordships to consider those key points because the alternative is that the state should have an even greater role, both compulsive and compulsory, in arbitrating over what is an acceptable form of expression and what is not. Before I had the honour of joining your Lordships’ House, I was in another place for 21 years and I learnt at first hand how frustrating it was when the will of this House conflicted with that of the other place. However, I quickly learnt to respect the judgment and special qualities of this House. Time and time again, this House has demonstrated the virtues of experience, tempering partisanship and hotheadedness that sometimes characterise another place with the calm consideration and wisdom that reign here. I just hope that noble Lords will follow the same path today because freedom of expression is too important, too precious and too hard won to be legislated upon in haste or in anger. I want to hear from the Minister as to the way forward that the three political parties wish to take. A solution is well within our grasp; let us get ahead, but not this way.

Lord Elton: My Lords, before we come to the Front Bench speeches, may I ask for some help for lay Members of the House and point to an opportunity? An enormous amount rides upon my noble friend’s very convincing and confident undertaking to deliver an acceptable and effective solution by the middle of this year. Many others have had that ambition and failed; there is a danger that he may fail. It seems we would then have a situation where nothing can be done

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for a very long time. The Minister would be giving a great help to the House if, between now and making his speech, he could get clearance for an undertaking that if a satisfactory solution is not arrived at by the end of this year, or indeed by its middle, then legislative time should be brought in so that we can have a statutory system instead—and not wait to extend the 67 years into three quarters of a century.

Lord Stevenson of Balmacara: My Lords, today’s excellent debate has strong echoes of the occasion on which we first received the Leveson report. Your Lordships may recall that on that occasion we had to have two Statements; one was given by the then Leader of the House, the noble Lord, Lord Strathclyde, who said that he was speaking for the Government, and the other was given by, let us say, another government Minister—did we are discover in what capacity it was that the noble Lord, Lord McNally, was speaking? The point is that on that occasion, all three major parties claimed to be supporting what Lord Justice Leveson was recommending. The noble Lord, Lord Strathclyde, said,

“Lord Justice Leveson sets out proposals for independent self-regulation organised by the media. He details the key requirements that an independent self-regulatory body should meet, including: independence of appointments and funding; a standards code; an arbitration service; and a speedy complaint-handling mechanism. Crucially, it must have the power to demand upfront apologies and impose million-pound fines. These are the Leveson principles. They are the central recommendations of the report. If they can be put in place, we truly will have a regulatory system that delivers public confidence, justice for the victims, and a step-change in the way the press is regulated in our country. I accept these principles and I hope the whole House will come behind them”.—[Official Report, 29/11/12; col. 340.]

The noble Lord, Lord McNally, obviously quoting his leader, said:

“I have always said that I would support Lord Justice Leveson’s reforms, providing they are proportionate and workable … I believe that to be the case for the report’s core proposal for a tougher system of self-regulation, supported by new, independent checks, recognised in law”.—[Official Report, 29/11/12; col. 351.]

The other groups in your Lordships’ House were equally supportive. As my noble friend Lord Puttnam reminded us, that remained the situation when we had our extended debate on the report on Friday 11 January. Since the original publication of the report, the parties have been engaged in tripartite talks that have been ongoing for about two months. However, we hear that the pace of these has slowed down considerably in recent weeks, with the most recent scheduled meeting being cancelled by the Government and offers to meet and resume talks in the light of today’s amendments being rebuffed. It is worth recalling that when we entered the cross-party talks, we set the Government a deadline of the end of January to publish Leveson-compliant measures. It is noticeable that the Government have so far been unable to publish their proposals, although we know that they include at least one draft royal charter and some statutory underpinning.

At the heart of today’s debate is the question of whether we have independent self-regulation backed by law. We need statute because the current system of self-regulation has failed year after year for 70 years, and despite seven major reports. Trust, as the most

5 Feb 2013 : Column 163

reverend Primate said, is in short supply here—something has to happen. Lord Justice Leveson proposes a framework that provides for the continuation of self-regulation by the press but with a legal guarantee that self-regulation will be effective and independent and will continue to meet high standards. The role of the law, the legal underpinning, would be limited to setting up a body whose task would be to recognise the self-regulated system and to check it once every three years. Lord Justice Leveson said that this was essential to ensure that, despite all the protestations of change and good intentions, the press did not once again slip back into its old ways, as it has always done after all the other inquiries and reports.

We believe that Lord Justice Leveson’s answer to that decades-old problem is ingenious. It ensures that the press regulates itself independent of both the Government and its own interests, but it also ensures that there is statutory backing for the system. As I have indicated, there is wide agreement in Parliament that Lord Justice Leveson’s recommendations should be implemented. If we were in power, we would make every effort to get agreement to implement the Leveson proposals in full. We think that there is no credible argument for today, and that action should be taken forthwith—certainly by the end of the current parliamentary session.

While the Government have shared their suggestion of a royal charter and accompanying clauses with us in the talks—and with the newspaper industry, it should be noted—most MPs, Peers, lawyers and others with an interest have yet to see them.

The noble Lords, Lord Black and Lord Hunt, made interesting interventions in this debate today. I am bound to say that without the detail it is very hard to judge what they are doing and how they are going to do it, but I felt that neither of them commanded the support of the House.

It is now time for the Government to have the courage of their convictions. The status quo is not an option. We have drafted and published our Bill and so have others, including Hacked Off. While the talks have been useful and obviously will continue, the main decision here—whether it is to be statute alone or statute and charter—must now be discussed openly; the public must be able to scrutinise the proposals; the victims should be able to signify their consent; and Parliament, to which Lord Justice Leveson entrusted a key role in setting up the new system, must be given an early opportunity to decide.

As I said, there is a strong case for action being taken on an all-party basis; the victims, and the public more generally, expect that. The families who suffered press intrusion and gross violations of their privacy are still pressing for the changes that will protect people in the future from what happened to them. These victims have gone through, and, in some cases, are still going through, unimaginable suffering. They remind us by their evident presence why the status quo, unsatisfactory for decades, is not an option. We must act on Leveson’s proposals for substantial and lasting change.

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The amendments so brilliantly introduced by my noble friend Lord Puttnam and supported by the noble and learned Lord, Lord McKay, the noble Baroness, Lady Boothroyd, and my noble and learned friend Lady Scotland are a reflection of the lack of confidence in, and the frustration with, the current process of implementing the Leveson proposals. There are some who feel that the apparent politicisation of the implementation process, because of alternative ideas such as the royal charter, takes us some considerable distance from Lord Leveson’s recommendations, and in so doing, erodes the trust of both victims of press abuse and the general public.

The purpose of the amendments in the name of the noble Baronesses, Lady O’Neill and Lady Hollins, is to tighten up the amendments tabled by my noble friend Lord Puttnam so that the new clause and schedules being inserted implement Lord Justice Leveson’s recommendations in a clearer and more effective way. These amendments are entirely consistent with the spirit of my noble friend Lord Puttnam’s amendments and aim to ensure that the Defamation Bill contains a fully workable version of the Leveson recommendations.

No one is claiming that the amendments answer the criticisms the Government might make about the drafting, nor that these amendments make the package “Leveson in full”, but they would, if passed, mark the beginning of a process to incorporate most of the Leveson recommendations into statute and they send a very direct message to the Government that the House wishes to see the Leveson report implemented. If they are passed this afternoon, as I hope they will be, your Lordships’ House will be doing a valuable service helping the Government of the day to do what at heart they say they want to do but which they have, to date, not been able to deliver.

So the questions we need to focus on are not the particular drafting of the amendments before us, because there would be ample time to sort that out at Third Reading, in the Commons or at ping-pong, but, under our procedures, that could not happen if we do not pass these amendments today. We must beware false choices. We were offered them recently in the sense that the allegation being made is that what is on offer is statutory regulation of the press. It is not. It may well be that what we have on offer today is not Leveson, it may be the back door but, as the noble Lord, Lord Skidelsky, said, the prospects of getting it through the front door, certainly not one with the number 10 on it, are quite remote. It could be characterised as being a first step down the road we need to take, and it changes the status quo. It will remind the Prime Minister and the coalition Government of the welcome they gave to the Leveson report when it was first published and, because a clock will have started ticking, remind them that too much time has already passed.

I suppose that the arguments that the Minister will give us shortly are that the Government are listening, that they can be relied on to act, and that they will be bringing forward consensus proposals which will be acceptable to all parties. He may suggest that all this can be done by Third Reading, which I understand is on Monday 25 February, immediately after our Recess. He may even promise publication of the Government’s proposals—that would be nice—and he may offer a

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revised timetable for more talks, which we would certainly look at. Can we take that risk? As the noble Baroness, Lady Boothroyd, warned us, tomorrow never comes. Is there credible evidence sufficient to believe that those responsible for the current delays are working to a deadline that delivers the necessary changes by the end of this Session? Even if you believe all that, what is the downside if we pass these amendments today? At heart, they genuinely offer the Government a chance to get this process back on track. Even if the Minister, when he comes to reply to this debate, gives your Lordships’ House an unequivocal assurance that he will bring back a government amendment on this topic which will deliver Leveson on Third Reading, I still believe that agreeing this amendment is what the people of this country want, and what the victims deserve.

When the Minister sits down, it will be for the proposer of the amendment to decide whether to test the opinion of the House. If he decides to do so, we on this side will support him.

4.45 pm

The Minister of State, Ministry of Justice (Lord McNally): My Lords, I always think it is extremely helpful for the courtesy of the House if the Opposition make not only their case but mine as well, but perhaps it will help if I also put forward a few ideas.

This Bill has been two years in preparation. It has been a draft Bill, it has gone through pre-legislative scrutiny, it has gone through all its stages in the House of Commons and it has spent four very full days in Committee. One of my fears over the past two years, and certainly since the Leveson inquiry was set up, has been that this discrete Bill dealing with defamation would be engulfed by the Leveson tsunami. Given the way in which matters are handled in this House, even if it agreed with every word of both amendments, it would be—to put it mildly—impetuous for it to vote for amendments that run to three pages in the Marshalled List, with in one case a weekend and in the other less than 24 hours’ notice of their content. In other circumstances, some of the old barrack room lawyers in this place would have drawn attention to that.

There is no doubt in my mind that we are dealing with one of the most serious challenges to political parties and to Parliament in the past 70 years. I have never been in any doubt that how we respond to Leveson will be a test of how each and every one of us carries out our responsibilities in this Parliament.

To put my own attitudes in context, I have been campaigning for the strengthening of press regulation for 15 years. Some 10 years ago when the noble Lord, Lord Puttnam, and I tabled some modest amendments on press regulation, I was told from this Dispatch Box by the Labour Minister of the day that our proposals were the “slippery slope” to a state-regulated press. I say that because I do not want people to assume that there is total moral rectitude on that side and none on this side. I do not believe that the proposals I made 10 years ago were a slippery slope towards a state-controlled press. I do not believe that the proposals before the House today are a slippery slope towards a state-controlled press. That is not the issue before this House.

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There is an issue before the House that cuts many ways. The noble Lord, Lord Stevenson, has summed it up: trust. I hope that my noble friend Lord Black realised, from the reception to some of his remarks, that the media still have a long way to go before there is any sense of trust in what they are doing to rectify the harm that they have done to our body politic. I hope that one of the values of this debate is that each of the party leaders understands the question of trust which hangs over their intent. I am as frustrated as anybody that two months have passed since publication of the Leveson report. There is a strong case for getting things moving. If this debate has helped to stimulate progress, that is certainly a value that it has. There is a value in all three parties putting their cards on the table. This is not a time for secret diplomacy.

I also agree with the noble Lord, Lord Stevenson, that we should still strive for the prize of all-party agreement on this. We want a settlement about the relationship of our media with Parliament to carry all-party endorsement.

My noble friend Lord Elton asked me a question which an old campaigner such as him knows that I cannot answer on behalf of the Government. He wants to know whether the Government would support legislation in this matter if these talks collapsed and my noble friend Lord Hunt failed to deliver. I cannot speak for the Government but I know my party’s policy; namely, that if there is no agreement and we cannot achieve the tripartite agreement that I believe is the prize, we certainly would be in favour of legislation in this area.

Therefore, there has to be some understanding and balance about this almost unique move that we are going through. From our long relationship, the noble Lord, Lord Puttnam, knows that I fully understand where he is coming from. There is power in the Back Benches. This show of Back-Bench power today sends a necessary message which breaks the dreadful silence to which he referred. He perhaps has not studied the rest of the Bill as fully as he might. Other parts of the Bill try to deal with access to justice, including costs, as referred to by the noble and learned Baroness, Lady Scotland, where we are pursuing the Leveson recommendations on qualified one-way costs shifting.

The debate has brought up a number of issues that Members should ponder. Over the years, I have been on the same side as almost every Member who has contributed to this debate, including the noble Baroness, Lady O’Neill, in her call for a cheap, effective and independent answer. I will come to the point about independence in a moment.

When the noble Lord, Lord Lester, was having his skirmishes and the noble Baroness, Lady Kennedy, and my noble friend Lord Faulks were making their points, it crossed my mind that passing these amendments as they are might cause even more work for my learned friends while the judges work out the intentions of Parliament in passing these proposals. As I have said, that is the danger in such matters.

My noble friend Lord Fowler is an old ally. He rightfully called for what I think is the rational approach; that is, to look at the building blocks and at how they can be placed. The suggestions here may indeed be the

5 Feb 2013 : Column 167

right building blocks. I agree with the noble Baroness, Lady Hollins, that there is an expectation in the public at large and in both Houses of Parliament for Leveson to be implemented. However, Parliament has a right to look at these matters. I still believe that the tripartite talks are our best way to make lasting progress. That is where I disagree with the noble Lord, Lord Skidelsky. It is always tempting and alluring to say that this is the best chance we have or that “tomorrow never comes”, as the noble Baroness, Lady Boothroyd, said. But sometimes it does come and I do not think that we should abandon hope. I noticed that my noble friend Lord Phillips referred, while supporting the amendments, to the fact that they are defective.

The most reverend Primate the Archbishop of York reminded us about trust. I hope that we can face the question of how we can use the next few weeks—I am not talking about months or years—to restore the trust that clearly has been damaged in the conduct of these talks. There is a danger that passing these amendments today will be a diversion and not progress as regards what I and the House want to see.

It is a matter of judgment, and the noble Lord, Lord Puttnam, and the other movers of amendments will have to make their decision. However, let me comment on the intervention of the noble Lord, Lord Hunt, which I very much welcomed because it brought up to date and put on the record the very detailed work that he has been doing and the real progress that has been made. He was right to remind us that Lord Justice Leveson himself said that the industry has the responsibility to set up the new structure. On the question of independence, I can say only that the noble Lord, Lord Hunt, and I were on the executive of the Atlantic Association of Young Political Leaders— a modest body, as you can tell from its title— some 40 years ago. On the basis of that, I have no doubt that this difficult task is in safe and independent hands.

When Lord Justice Leveson’s report was published, all agreed that the inquiry had uncovered a shocking culture of wrongdoing at the heart of certain elements of the press, which the noble Baroness, Lady Boothroyd, referred to. There was also, as Leveson pointed out, an inadequate system of press regulation—something that I described in this House as a “sweetheart organisation”. The Prime Minister has stated that the status quo is not an option, and the Deputy Prime Minister has said that we must not now prevaricate. We are all agreed that a tough and truly independent new system of self-regulation is required to ensure that real change happens. At the same time we must ensure that there is freedom of expression for the press, which is a cornerstone of our democracy.

To that extent, I understand the intention of the noble Lord, Lord Puttnam, in tabling his amendments, as well as that of the noble Baroness, Lady O’Neill. I sympathise with the concerns that the Leveson report needs to be implemented and with the noble Baroness’s wish to see progress on this important issue. We are all agreed on the need for action and I welcome the noble Lord’s contribution to finding the right solution. However, I remind noble Lords that when the Leveson report was published, the Prime Minister and the Deputy

5 Feb 2013 : Column 168

Prime Minister agreed that a cross-party approach was the best way to ensure that a consensus could be reached on these contentious issues—and very few of us in this House would disagree with that. It is right for Parliament to send clear messages to our respective party leaders but, as I said before, the tripartite way forward is the prize that we all should seek.

To that end, the cross-party talks have been taking place over a number of weeks and the Government remain committed to ensuring their success. These discussions are not to be taken lightly. No fewer than 10 meetings have taken place between senior representatives from across the parties, and those representatives include the Secretary of State for Culture, the deputy leader of the Opposition and, from this House, my noble and learned friend Lord Wallace of Tankerness and the noble and learned Lord, Lord Falconer. From what I have heard, the talks have been constructive, although I also accept the point made by the noble Lord, Lord Stevenson, that there seems to have been a certain lack of momentum in recent days, which makes this debate not unwelcome.

5 pm

Noble Lords: Oh!

Lord McNally: Have I said something that I should not have said?

I should like to update noble Lords on some of the discussions that have already taken place on Lord Justice Leveson’s recommendations. First, recommendations concerning the press and police have been considered by the cross-party group and measures are being developed further by the Home Office, on which the Home Secretary will report to Parliament shortly. Secondly, Lord Justice Leveson’s recommendations regarding the press and politicians have been considered and are now being taken forward by the Cabinet Office.

Thirdly, there have been discussions on the complex issues raised by data protection. As the Minister with responsibility for data protection, I am looking with my right honourable friend the Justice Secretary at the best way to take this forward, preferably once we have a clear idea of what we are doing as far as the tripartite talks are concerned. This is a complex series of decisions. Furthermore, the talks continue to consider, among many other issues, the best way to recognise the new press self-regulatory body. While there are areas of differences, there are also many areas of agreement. There is a widespread desire for a cross-party solution to this issue of fundamental importance to our democracy. A great deal of work has already taken place in talks and these amendments risk pre-empting their outcome.

This brings me to the key issue: whether statute is the most appropriate route to delivering the underpinning that Lord Justice Leveson sets out. This question has been the topic of impassioned debate not only today but across the weeks since the report’s publication. The cross-party talks have considered a number of options, including various draft Bills—among them the Bill prepared by my noble friend Lord Lester. In addition, there have been discussions about a proposed royal charter. To add to the debate and to demonstrate

5 Feb 2013 : Column 169

to this House that concrete progress is being made, I can announce today that a draft royal charter proposal will be published next week—the noble Lord, Lord Stevenson, is well informed.

As I hope noble Lords will recognise, I have outlined just a few of the issues that are subject to detailed consideration in cross-party talks and with stakeholders. I am convinced that an approach agreed cross-party, if it can be secured, is the best way to do justice to Lord Justice Leveson’s proposals and to ensure a new system of press regulation which can enjoy secure and real public confidence.

I recognise the strong feelings in this House and the desire to send a message. I am sure that that message has been clearly heard. However, I ask noble Lords to allow those cross-party talks to reach their full and considered conclusion rather than to bring legislative proposals before this House at this stage. The noble Lord was wrong to say that this is the end of the matter; the Bill will have a Third Reading and go back to the other place.

This is, of course, a matter of judgment. However, I feel that with the progress that is being made on the kind of things to which the noble Lord, Lord Hunt, referred, and given that the royal charter proposal will be on the table next week, there will be a chance in the next few days to give some real impetus to these talks. As I said previously, there is no doubt in my mind that the real prize is not a victory or defeat on this amendment today but a successful outcome to the tripartite talks. That would give us the real holy grail here, which is a cross-party endorsement which sticks in parliamentary and legislative terms and has widespread support among the public. I hope that, with those remarks, my old friend will agree to withdraw his amendment.

Baroness O'Neill of Bengarve: My Lords, it has been a very instructive debate. I think that it has become clear to many of us how little many of us who are not close to the cross-party talks know about what is actually being said or discussed. There is, I am sorry to say, and as the most reverend Primate reminded us, a serious question of trust here that is not going to be remedied quickly. A number of issues speak directly to that. Perhaps I may address one which the noble Lord, Lord Hunt, raised. He spoke repeatedly, as he has previously, about independent regulation, and he was reminded by the noble Lord, Lord Puttnam, that independence is not just a matter of one’s belief that one is a person of independent judgment; it is also a question of institutions, structures, how one is appointed and to whom one is accountable. Our debates would be very much clarified if we did not speak of a self-regulation body that lacks an appropriate form of accountability to a recognition body as a form of independent regulation. It is less than that.

I have every faith in the good intentions of the noble Lord and his colleagues in seeking to define a way forward, but without the statutory recognition body which is integral to Lord Justice Leveson’s proposals, we have no reason to expect that that will endure across the vicissitudes of time and self-interest. We have repeated experience that what passes for self-regulation has been self-interested regulation. That is

5 Feb 2013 : Column 170

why many of us are extremely anxious on behalf of our fellow citizens who have been victims of intrusion and defamation, and lack remedies.

I will withdraw Amendment 1A, tabled in my name and that of my noble friend Lady Hollins. It is a complex amendment and it is imperfect. Greater clarity will be served if noble Lords make a straightforward decision on supporting the amendment in the name of the noble Lord, Lord Puttnam, and colleagues. That puts the issue squarely. We would all acknowledge that the details of these amendments—Amendment 1 and the amending amendments—are not perfect. They probably cannot be perfect at this stage. However, I hope that noble Lords will feel willing to support the amendment of the noble Lord, Lord Puttnam, knowing that it affords the Government more than one opportunity to reconsider the matter and come back on it. As the Minister indicated in his very interesting reply, it also affords some further time for reflection. I beg leave to withdraw Amendment 1A.

Amendment 1A (to Amendment 1) withdrawn.

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

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

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

It has been interesting to listen to the criticism of this amendment. A great deal of it has been about what the amendment is not. I make no claims about its faults—there are a number of them. Yet, in respect of the all-party talks that have dominated this discussion and of which we have heard so much, I am reminded of the fate of a frighteningly similar set of talks that have been held for many years—more years than I can remember—regarding the issue of party funding. Any

5 Feb 2013 : Column 171

thoroughgoing democrat knows that party funding needs to be in a form that supports the maintenance of a serious democracy. But the instant a momentary or fragmentary form of party advantage raises its head, all thoughts of what might be the right direction for the electorate, let alone the country, seem to go out of the window. My real concern is that these all-party talks seem to conform to that type of pattern, and it worries me greatly.

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

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

the recommendations of this inquiry—

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

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

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

5.11 pm

Division on Amendment 1

Contents 272; Not-Contents 141.

Amendment 1 agreed.

Division No.  1

CONTENTS

Aberdare, L.

Adams of Craigielea, B.

Adonis, L.

Afshar, B.

Ahmed, L.

Allenby of Megiddo, V.

Alton of Liverpool, L.

Anderson of Swansea, L.

Andrews, B.

Armstrong of Hill Top, B.

Ashcroft, L.

Astor, V.

5 Feb 2013 : Column 172

Bach, L.

Bakewell, B.

Barnett, L.

Bassam of Brighton, L. [Teller]

Bath and Wells, Bp.

Beecham, L.

Berkeley, L.

Best, L.

Bichard, L.

Billingham, B.

Bilston, L.

Blood, B.

Boothroyd, B.

Boyce, L.

Bragg, L.

Broers, L.

Brooke of Alverthorpe, L.

Brookman, L.

Brooks of Tremorfa, L.

Browne of Belmont, L.

Browne of Ladyton, L.

Cameron of Dillington, L.

Campbell of Alloway, L.

Campbell of Surbiton, B.

Campbell-Savours, L.

Carter of Coles, L.

Chandos, V.

Chester, Bp.

Christopher, L.

Clark of Windermere, L.

Clarke of Hampstead, L.

Clinton-Davis, L.

Collins of Highbury, L.

Corston, B.

Craig of Radley, L.

Crawley, B.

Cunningham of Felling, L.

Davies of Abersoch, L.

Davies of Coity, L.

Davies of Oldham, L.

Davies of Stamford, L.

Dear, L.

Deech, B.

Donaghy, B.

Donoughue, L.

Drake, B.

Drayson, L.

Dubs, L.

Dykes, L.

Eatwell, L.

Elder, L.

Elis-Thomas, L.

Elystan-Morgan, L.

Emerton, B.

Evans of Parkside, L.

Evans of Temple Guiting, L.

Evans of Watford, L.

Falconer of Thoroton, L.

Farrington of Ribbleton, B.

Faulkner of Worcester, L.

Fellowes, L.

Filkin, L.

Finlay of Llandaff, B.

Flather, B.

Foster of Bishop Auckland, L.

Foulkes of Cumnock, L.

Fowler, L.

Gale, B.

Gibson of Market Rasen, B.

Giddens, L.

Golding, B.

Goldsmith, L.

Gordon of Strathblane, L.

Grantchester, L.

Greengross, B.

Grenfell, L.

Griffiths of Burry Port, L.

Grocott, L.

Hannay of Chiswick, L.

Hanworth, V.

Hardie, L.

Harris of Haringey, L.

Harrison, L.

Hart of Chilton, L.

Haworth, L.

Hayman, B.

Hayter of Kentish Town, B.

Healy of Primrose Hill, B.

Henig, B.

Hereford, Bp.

Hilton of Eggardon, B.

Hollick, L.

Hollins, B.

Hollis of Heigham, B.

Howarth of Newport, L.

Howe of Idlicote, B.

Howells of St Davids, B.

Hoyle, L.

Hughes of Stretford, B.

Hughes of Woodside, L.

Hunt of Kings Heath, L.

Hurd of Westwell, L.

Hylton, L.

Inglewood, L.

Irvine of Lairg, L.

Janner of Braunstone, L.

Jay of Paddington, B.

Joffe, L.

Jones, L.

Jones of Whitchurch, B.

Jordan, L.

Judd, L.

Kennedy of Southwark, L.

Kennedy of The Shaws, B.

Kerr of Kinlochard, L.

Kestenbaum, L.

King of Bow, B.

Kingsmill, B.

Kinnock, L.

Kinnock of Holyhead, B.

Kirkhill, L.

Knight of Collingtree, B.

Knight of Weymouth, L.

Laird, L.

Layard, L.

Lea of Crondall, L.

Leitch, L.

Levy, L.

Liddell of Coatdyke, B.

Liddle, L.

Lipsey, L.

Lister of Burtersett, B.

Listowel, E.

Liverpool, E.

Low of Dalston, L.

Lucas, L.

McAvoy, L.

McConnell of Glenscorrodale, L.

McDonagh, B.

Macdonald of Tradeston, L.

McFall of Alcluith, L.

McIntosh of Hudnall, B.

MacKenzie of Culkein, L.

Mackenzie of Framwellgate, L.

McKenzie of Luton, L.

Maclennan of Rogart, L.

Maginnis of Drumglass, L.

Mar, C.

Martin of Springburn, L.

Masham of Ilton, B.

Massey of Darwen, B.

Mawson, L.

Maxton, L.

5 Feb 2013 : Column 173

Meacher, B.

Mitchell, L.

Monks, L.

Montgomery of Alamein, V.

Moonie, L.

Moore of Lower Marsh, L.

Morgan of Drefelin, B.

Morgan of Ely, B.

Morgan of Huyton, B.

Morris of Handsworth, L.

Morris of Yardley, B.

Moser, L.

Nicholson of Winterbourne, B.

Noon, L.

Northbourne, L.

Norwich, Bp.

Nye, B.

Oakeshott of Seagrove Bay, L.

O'Cathain, B.

O'Loan, B.

O'Neill of Bengarve, B.

O'Neill of Clackmannan, L.

Ouseley, L.

Palmer, L.

Patel, L.

Patel of Blackburn, L.

Patel of Bradford, L.

Pendry, L.

Peston, L.

Pitkeathley, B.

Plant of Highfield, L.

Powell of Bayswater, L.

Prashar, B.

Prescott, L.

Prosser, B.

Puttnam, L.

Quin, B.

Ramsay of Cartvale, B.

Ramsbotham, L.

Rea, L.

Redesdale, L.

Rees of Ludlow, L.

Reid of Cardowan, L.

Rendell of Babergh, B.

Richard, L.

Robertson of Port Ellen, L.

Rogan, L.

Rogers of Riverside, L.

Rooker, L.

Rosser, L.

Rowe-Beddoe, L.

Rowlands, L.

Royall of Blaisdon, B.

Ryder of Wensum, L.

Sandwich, E.

Sawyer, L.

Scotland of Asthal, B.

Scott of Foscote, L.

Sherlock, B.

Simon, V.

Skidelsky, L.

Slim, V.

Smith of Basildon, B.

Smith of Finsbury, L.

Smith of Leigh, L.

Snape, L.

Soley, L.

Stern, B.

Stevenson of Balmacara, L.

Stone of Blackheath, L.

Taylor of Blackburn, L.

Taylor of Bolton, B.

Temple-Morris, L.

Tenby, V.

Thomas of Swynnerton, L.

Thornton, B.

Tomlinson, L.

Touhig, L.

Trees, L.

Triesman, L.

Tugendhat, L.

Tunnicliffe, L. [Teller]

Turnbull, L.

Turner of Camden, B.

Uddin, B.

Wall of New Barnet, B.

Walpole, L.

Walton of Detchant, L.

Warnock, B.

Watson of Invergowrie, L.

West of Spithead, L.

Wheeler, B.

Whitaker, B.

Whitty, L.

Wigley, L.

Wilkins, B.

Williams of Elvel, L.

Wills, L.

Wilson of Tillyorn, L.

Winston, L.

Wood of Anfield, L.

Woolf, L.

Woolmer of Leeds, L.

Worcester, Bp.

York, Abp.

Young of Hornsey, B.

Young of Norwood Green, L.

NOT CONTENTS

Ahmad of Wimbledon, L.

Allan of Hallam, L.

Anelay of St Johns, B. [Teller]

Ashton of Hyde, L.

Astor of Hever, L.

Attlee, E.

Ballyedmond, L.

Bates, L.

Bell, L.

Berridge, B.

Bew, L.

Black of Brentwood, L.

Blencathra, L.

Brabazon of Tara, L.

Bridgeman, V.

Brittan of Spennithorne, L.

Brooke of Sutton Mandeville, L.

Brookeborough, V.

Brougham and Vaux, L.

Browning, B.

Buscombe, B.

Byford, B.

Cathcart, E.

Cavendish of Furness, L.

Clancarty, E.

Colville of Culross, V.

Colwyn, L.

Cope of Berkeley, L.

Cormack, L.

Courtown, E.

Coussins, B.

Craigavon, V.

De Mauley, L.

Dixon-Smith, L.

Dobbs, L.

Dundee, E.

Eccles, V.

Eden of Winton, L.

Falkland, V.

Falkner of Margravine, B.

Faulks, L.

5 Feb 2013 : Column 174

Fearn, L.

Fellowes of West Stafford, L.

Flight, L.

Fookes, B.

Forsyth of Drumlean, L.

Framlingham, L.

Fraser of Carmyllie, L.

Freeman, L.

Freud, L.

Garden of Frognal, B.

Gardiner of Kimble, L.

Garel-Jones, L.

Geddes, L.

Goodlad, L.

Hanham, B.

Hanningfield, L.

Henley, L.

Heyhoe Flint, B.

Higgins, L.

Hill of Oareford, L.

Hodgson of Astley Abbotts, L.

Home, E.

Hooper, B.

Howard of Lympne, L.

Howard of Rising, L.

Howe, E.

Howell of Guildford, L.

Hunt of Wirral, L.

Hussein-Ece, B.

James of Blackheath, L.

Jay of Ewelme, L.

Kakkar, L.

Kilclooney, L.

King of Bridgwater, L.

Laming, L.

Lang of Monkton, L.

Lester of Herne Hill, L.

Lexden, L.

Lindsay, E.

Lingfield, L.

Lothian, M.

Lyell, L.

McColl of Dulwich, L.

MacGregor of Pulham Market, L.

McNally, L.

Maddock, B.

Magan of Castletown, L.

Marks of Henley-on-Thames, L.

Mayhew of Twysden, L.

Morris of Bolton, B.

Moynihan, L.

Naseby, L.

Nash, L.

Neville-Jones, B.

Newby, L. [Teller]

Noakes, B.

Northover, B.

Pannick, L.

Perry of Southwark, B.

Popat, L.

Randerson, B.

Rawlings, B.

Renfrew of Kaimsthorn, L.

Risby, L.

Rodgers of Quarry Bank, L.

Sassoon, L.

Seccombe, B.

Selborne, E.

Selkirk of Douglas, L.

Selsdon, L.

Sharkey, L.

Sharples, B.

Shaw of Northstead, L.

Sheikh, L.

Shephard of Northwold, B.

Skelmersdale, L.

Spicer, L.

Stedman-Scott, B.

Stewartby, L.

Stoneham of Droxford, L.

Storey, L.

Stowell of Beeston, B.

Strathclyde, L.

Taverne, L.

Taylor of Holbeach, L.

Taylor of Warwick, L.

Tebbit, L.

Trefgarne, L.

Trimble, L.

True, L.

Ullswater, V.

Verma, B.

Vinson, L.

Wakeham, L.

Wallace of Saltaire, L.

Wallace of Tankerness, L.

Wasserman, L.

Wei, L.

Wilcox, B.

Younger of Leckie, V.

5.32 pm

Amendment 2

Moved by Baroness Hayter of Kentish Town

2: After Clause 1, insert the following new Clause—

“Non-natural persons

(1) This section applies to an action for defamation brought by—

(a) a body corporate;

(b) other non-natural legal persons trading for profit; or

(c) trade associations representing organisations trading for profit.

(2) The permission of the court must be obtained in order to bring an action to which this section applies.

(3) The court must strike out an application under subsection (2) unless the body corporate can show that the publication of the words or matters complained of has caused, or is likely to cause, substantial financial loss to the claimant.

5 Feb 2013 : Column 175

(4) Non-natural persons performing a public function do not have an action in defamation in relation to a statement concerning that function.”

Baroness Hayter of Kentish Town: My Lords, after that excitement I rise to move Amendment 2 on behalf of my noble friend Lord Browne of Ladyton and the noble Lord, Lord Lester of Herne Hill. It would end the current position whereby individuals and organisations have identical hurdles to jump in an action for defamation.

Defamation is about someone’s reputation being trampled and seriously damaged by untrue statements made about them. Some commentators think that since only people and not organisations have feelings, only people should be able to sue. We do not go that far. We accept that organisations can be damaged by untrue allegations. Had horse meat not been in those burgers, or pork not in that halal food, such innocent information could have substantially and unjustifiably ruined a company’s reputation and caused untold financial harm. That would be the same if a small corner butcher, for example, was wrongly accused of having mice in the shop, if Perrier was falsely accused of being a purveyor of foul water or if a car manufacturer was said to have made a car with unsafe brakes.

Amendment 2 would allow such cases to be brought, provided that the allegations would cause substantial financial harm. The approach came from the Joint Committee. The amendment was moved in Committee on this Bill by its chair, the noble Lord, Lord Mawhinney, who cannot be in his place today. It is supported by Liberty, the Libel Reform Campaign, the Media Lawyers Association, Which? and the Commons Culture, Media and Sport Committee, which noted the mismatch of resources in a libel action between large corporations, for which money may be no object, and a small newspaper or NGO, which has had a stifling effect on freedom of expression.

In their response to the Joint Committee, the Government said that it was unacceptable that corporations were able to silence critical reporting by threatening or starting libel actions that they knew the publisher could not afford to defend but where there was no realistic prospect of financial loss.