Defamation Bill

Lord Browne of Ladyton Excerpts

Tuesday 9th October 2012 Lords Chamber

[Lord Browne of Ladyton]

My Lords, I thank the Minister for his welcome. I had not expected to deal with this legislation and I have spent quite a substantial part of the Recess reading up. For a moment, I thought that I had missed something else. I knew that there was a failure of communication over the content of the reshuffle in certain places and I wondered if the noble Lord, Lord McNally, maybe knew something about a phone call that I should have got during the reshuffle that did not materialise. I also take this opportunity to welcome the noble Lord, Lord Ahmad of Wimbledon, to his post in the department. I look forward to working with him closely on the Bill and to his educating me on the detail, to the extent that I have been unable to master it so far.

We support the Bill to the extent that it seeks to reform our outdated libel laws. We also support it because—as the noble Lord, Lord McNally, made plain—it has its roots in what the previous Government did and because all three main political parties committed themselves to reforming defamation law in their election manifestos. However, as the Minister reminded us in his letter yesterday, that commitment to reform was translated in the coalition agreement to a commitment to review the law of libel to protect free speech. The word “reform” somehow fell off the agreement when the two parties went into discussion on a commitment to reform.

The first question for the Minister is whether the Bill, which in its present form largely codifies, and reforms little, is a reflection of the commitment of the coalition Government or is the aggregate position of two reforming parties on defamation law. The Minister, or the noble Lord, Lord Ahmad, may have an opportunity to enlighten me about that at some stage during the course of this debate.

We support the Bill, but are critical friends of it and hope to see it amended significantly during its passage through your Lordships’ House. I thank the Minister both for his speech of introduction and for the helpful letter that he circulated yesterday, I believe to all Members of the House. I am told by informed sources that he is the department’s principal promoter of the Bill and is the Minister who was responsible for piloting it through the Committee stage in the House of Commons. Apparently the Commons did not share his passion for reform of this area of law; accordingly we have high hopes of him.

Before I turn to specific clauses of the Bill, I want to associate myself with the words of the Minister to the extent that he has recorded thanks and appreciation to those who have played a role in getting the Bill to this stage. I associate myself with the recognition of the noble Lord, Lord McNally, of the role played by the Libel Reform Campaign and others too numerous to mention. If the Minister will excuse me, I will not go through the exhaustive list of all those who have been lobbying us—our inboxes are all full of their briefings on this. I am sure your Lordships will want to pay tribute to my right honourable friend Jack Straw and the working group that he established when he was Secretary of State, and of course to the Joint Committee of both Houses, under the able leadership of the noble Lord, Lord Mawhinney, which scrutinised the draft Bill. It is also appropriate to recognise the sustained contribution of the noble Lord, Lord Lester, particularly in relation to his original Private Member’s Bill and beyond. I suspect that both the Joint Committee report and the Private Member’s Bill will prove to be sources of inspiration when we come to Committee.

It is important that in any review and reform of defamation laws we get the right balance between freedom of speech and expression on the one hand and protecting reputations on the other. There have been justified concerns that our defamation laws are outdated, have fallen behind technological developments, have restricted freedom of expression and have attracted libel tourism. I say “our” defamation laws despite standing here as a Scottish lawyer and never having practised in English law, if noble Lords will excuse that poetic licence for the purpose of making my points.

The current system is also skewed by the high cost of defamation proceedings. The Defamation Bill should leave us with laws that are clearer and, much more importantly, more proportionate. As I have already made clear, we welcome a number of elements of this Bill. However, we are disappointed with the way in which the Government have approached it in the other place and feel an opportunity has been wasted, thus far, to reform and improve our defamation laws. What we have here, subject to one or two minor changes, is not reform but codification. As we know, a Joint Committee of both Houses scrutinised the draft Bill and came forward with a number of suggestions for how the final Bill could be improved. Many of these were ignored by the Government. In the House of Commons, we were concerned that the Bill as originally published did not address a number of problems and we sought to amend the Bill to improve it. The Government refused to take on board suggested amendments, although they turned up on Report with two of those amendments, redrafted, which were accepted. We will revisit many of these in Committee but this is not the time to go through the detail of the Committee stage.

Finally, the Government so far have failed to publish much of the detail of the Bill in the form of regulations and guidance. I listened carefully to the Minister’s assurances about what we can expect in the future. They have repeatedly been asked to publish more information on regulations and other parts of the infrastructure that are important to understand the effects of this Bill but so far have refused to do so. It is undoubtedly the case that for this and other reasons, although this will be in Committee relatively soon, it will be difficult properly to scrutinise and discuss many aspects of the proposals in the Bill in the absence of that information. We will not be able to work out what this will mean on the ground unless we have some sense of the infrastructure in which it is to sit.

I listened carefully to the warning from the noble Lord, Lord McNally, in relation to what I am about to do. The conclusion of the passage of the Bill will come shortly before the anticipated report by Lord Justice Leveson. It comes in the context of a continuing but as yet unshaped review of the law of privilege, and with the failure of the Government to show their hand on the rules on cost protection for defamation in privacy claims. All the regulations that we have been promised will be required for significant parts of the Bill.

The Bill consequently sits in a much broader, potentially confused and changing landscape. This may not be able to be fully clarified by the Government during their deliberations. However the maximum amount of clarity must be given to ensure that this set of reforms or changes will be sustainable beyond those that we can expect from the Government and the response to Lord Justice Leveson, or in relation to the changes in the rules for the court or the rules on costs.

This is a relatively small Bill, now with 17 clauses. I will deal with these clauses relatively quickly, concentrating on where we see the need for further scrutiny, or have criticisms or proposals for amendment in mind. Clause 1 seeks to impose a higher threshold for bringing a claim, a requirement that a statement must have caused “serious harm” to be defamatory. We support this higher hurdle for the reasons set out but believe that there needs to be greater clarity as to what “serious harm” would mean in practice. We will probe the Government to get that clarity in Committee. Clauses 2 to 7 set out the defences that will be available for a claim of defamation. Some replace or codify common-law defences; others create new defences. We will probe the Government’s thinking in relation to Clauses 2 and 3, but we broadly support them and see them as an improvement in the law.

We will test whether, as drafted, Clause 4’s intention to address responsible publication of matters of public interest makes the law clearer and more readily applicable outside mainstream journalism as claimed. The Government’s assertion that it does is not supported by the evidence of the Libel Reform Campaign. Simply replacing an existing defence that does not work and is not accessible with the statutory codification of it does not solve the problem. More importantly, there is a growing and persuasive argument that there is a place for a whole new approach to this issue, either through a new and effective public interest defence in addition to what is in the Bill, or by sweeping away what is presently in the Bill and recasting it.

On Report in the other place, the Under-Secretary of State, Mrs Helen Grant, indicated that the new ministerial team had an open mind about that proposal. This is what I believe the rather enigmatic Clause 7, mentioned on page 2 of yesterday’s letter from the noble Lord, Lord McNally, refers to. He expanded on that today and has told us that is exactly what he has an open mind about. It would be helpful if we heard discussions across those interested parties and across the House to see whether we can come to agreement on a reform or recasting of this part of the Bill to make sure that it passes the test that he set in his letter to us yesterday.

We think that Clause 5 is ill thought-out and incomplete. It creates a new defence for the operators of websites where a defamation action is brought against them in respect of a statement posted on their website. Importantly, the detail of the defence—we are told—will be provided in draft regulations which we have not yet seen and the shape of which we do not know. We have requested that the regulations be approved through affirmative rather than negative resolution procedure because they are so significantly important to this process, but so far that change has not been accepted. It may be that this new listening department will be prepared to reconsider that. This is a key area. Technological developments have advanced much quicker than our laws, and we need well thought-out and potentially sustainable reform because this area of our life moves much quicker than any other. We will need to try to anticipate how those who wish to defeat any regulation we put in place will move in order to defeat that regulation. We will be seeking more clarity on this clause, and seeking to amend it in Committee.

We welcome Clauses 6 and 7 and are pleased that the Government followed the committee’s recommendations and, particularly, that Clause 6 introduces a new defence of qualified privilege relating to peer-reviewed material in scientific and academic journals. Clause 8 introduces a single publication rule to prevent an action being brought in relation to publication of the same material by the same publisher after a one-year limitation period. We support this clause.

Clause 9 addresses libel tourism. Concerns have been expressed that defamation law in England and Wales is more protective of reputation than elsewhere in the world and that London has become the preferred location for defamation actions involving parties with only a tenuous link to the jurisdiction. Although the extent of this issue is subject to debate, while we agree with the need to reduce the potential for trivial claims and address libel tourism—whatever its extent—we think that the necessary changes should be made to the Civil Procedure Rules before the Bill comes into force, so that we are able to discuss the practical implications of this change.

We support the objective of Clause 10—to limit the circumstances under which an action can be brought against someone who is not the primary publisher of the statement—but do not think it affords sufficient protection. We tabled a number of amendments in the other place and we will revisit almost all of these.

We support Clause 11 but would like to see detailed guidance relating to the criteria for the judge to consider when deciding whether a jury trial should be ordered. I digress from my notes here to remind noble Lords that I am a Scottish lawyer. I practised all of my life in a jurisdiction where we did not have the deference to jury trials that the English jurisdiction has. I did it also during a period when we shared a Parliament—when both Houses of this Parliament regularly legislated for the administration of justice both in civil and criminal jurisdiction in a non-jury environment without any demur or question as to whether or not it was doing injustice.

Since I have become a parliamentarian, I have listened to hours of English men and women saying that the only way to deliver justice is through a jury trial, and that any other way of doing it is an injustice. I am always mildly amused by that, as your Lordships can imagine. Although now that we have our own Parliament things are different, there are hundreds of years of this Parliament legislating for a country in which the prosecutor decided whether you got a jury trial. It did that without any concern at all. I say finally, to summarise and get myself out of this kind of cul-de-sac that I have got myself into, that I could paper the wall with the names of miscarriages of justice that I have witnessed in courts, many of which have been perpetrated by juries. Anyway, we support Clause 11—but would like to see the detailed guidance relating to how the judge will apply it—and we welcome Clauses 12, 13 and 14.

The Bill does not make any specific provision for costs or striking out claims. Instead, we are asked to accept the assurance of the Minister and his ministerial colleagues that these issues will be dealt with elsewhere. I remind the noble Lord, Lord McNally, that during the progress of the Legal Aid, Sentencing and Punishment of Offenders Bill to which he referred earlier, he gave my noble friend Lord Prescott an assurance that the problem which my noble friend identified about costs in defamation actions would, and I quote narrowly here, have to,

“be dealt with fully in that Defamation Bill”.—[Official Report, 27/3/12; col. 1332.]

Now, that is not dealt with in this Bill but now the noble Lord gives another set of assurances that we have to accept as to how it will be dealt with. We are concerned about access to justice under the Bill and would like to see the issue of costs addressed in it. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 has abolished the recoverability of success fees and after-the-event insurance premiums. Claimants in defamation actions will no longer be able to insure themselves against costs—and even if they are successful, they may have to pay some of their damages in lawyers’ fees. There are a number of possible ways to address defamation costs, one of which the noble Lord, Lord McNally, explained to us, but we intend to explore all of them in Committee in the hope that we can find something that will allow the noble Lord to make good on his commitment to my noble friend Lord Prescott.

We would like a provision for striking out claims included in the Bill and hope to discuss in Committee the possibility of including a provision to that effect in Clause 1. We intend to table again the suggestion from the committee that corporations should be able to instigate proceedings but that the threshold should be higher for them: that is, where the corporation can prove substantial financial loss. We are concerned that the continued inequality of arms between parties will continue to limit access to justice for many less wealthy claimants.

In my short experience of your Lordships’ House, it is not uncommon for speeches here to be peppered with comments that legislation has left the House of Commons incomplete and barely scrutinised, leaving much work for this House to do. What is less common is that a Bill is sent on its way from the House of Commons with almost every speaker there saying that the degree of scrutiny and revision necessary will have to be carried out by this House because it has not been carried out by their House. However, that is exactly what was said repeatedly by Members of all parties, including Ministers, when the Bill was read for a third time in the House of Commons on 12 September.

In his contribution to Third Reading, the Secretary of State for Justice paid tribute to my right honourable friends in the Commons for the measured, constructive and thorough way in which the Bill proceedings had been conducted. We intend to continue that approach and expect in return that the Government’s promise of an open-minded approach, made repeatedly during Report and Third Reading in the Commons and repeated by the Minister in his letter yesterday, will be lived up to.

Parliamentary Voting System and Constituencies Bill

Lord Browne of Ladyton Excerpts

Wednesday 19th January 2011 Lords Chamber

[Lord McNally]

Again, I hope that people read Hansard as I deliberately did not make that mistake but I understand the noble Earl’s sensitivity on this. The other point was that not only does this amendment have another of those amazing fractions in it but, in my brief, there is the Gaelic name for the Western Isles. I was happy to notice that the noble Lord, Lord Foulkes, did not try the Gaelic name, so I will be excused as well.

The noble Lord, Lord Rooker, gave me some wise advice. In fact, I was trying to encourage him to be my adviser for the rest of the Bill but he wanted to protect his amateur status as an adviser to the Government. However, he said that you should not be afraid to take decisions at the Dispatch Box. The noble Lord, Lord Lipsey, is making a very valid point: the final calculation of exclusions may not be what is in the Bill. On the other hand, they may be, because the other place will have to look at what we send back to it. This is not an empty gesture; I really would like to take this back with the intention of bringing something back on Report.

[Lord Browne of Ladyton]

If I have understood the effect of this amendment and the existing drafting of the Bill, an amended clause of this nature could persist in the Bill even if the other place overturned any additional constituencies that were added to the list. In fact, this amendment creates a Bill that is proofed against any changes, whether they persist or not. This is actually a better piece of drafting than the original, which had a figure in it, because it is a calculation that will persist in any set of circumstances.

[Lord McNally]

I hear what the noble Lord says and I hear my noble and learned friend Lord Mackay behind me saying that he is right. All that I am asking, being a simple Lancashire lad, is to take this back with a firmness for Report. If what the noble Lord is saying is absolutely right, I assure the Committee that this will go in at Report.

Parliamentary Voting System and Constituencies Bill

Lord Browne of Ladyton Excerpts

Monday 13th December 2010 Lords Chamber

[Lord Browne of Ladyton]

My Lords, like my noble friend Lord Grocott, I had not intended to speak in this debate but he encouraged me to do so with his introductory remarks. I rise to do two things. First, I remind your Lordships that, far from the European Convention on Human Rights being some foreign, European imposition on our culture, it was in many ways our post-war gift to the rest of Europe. The convention was largely drafted by British jurists. The structure that was put in place to enforce those conventional rights was part of that gift, which we encouraged upon the rest of Europe. This is a very British thing to do in many ways. It has taken decades for this issue to come before the court and for the court to give its opinion and impose back upon us, as it were, an interpretation of those rules that allows prisoners the legal right to vote. It has its roots in our own jurisprudence and legal thought. We should not in any sense blame this on others or suggest that it is being imposed on us.

Secondly, I support and commend my noble friend Lord Foulkes for raising this issue here, although it will not result in amendment of the Bill or in the opportunity, at last, for us to live up to the consequences of the judgment, do what will inevitably need to be done and deal with the issue—to grasp the nettle, as another noble Lord suggested. However, it gives the coalition Government’s Front Bench an opportunity to reassure your Lordships’ House that we will not find ourselves in a situation where they give either a subset or all of this group of people a vote by decisions made through legislation in this House, and then immediately deny those persons their say in a referendum. That would be an entirely inconsistent position. I look for assurances from the noble Lord, Lord McNally, that the Government will do everything they can to ensure that, if they intend to give prisoners or any class of prisoners the vote, the legislation will allow prisoners to express their preference in a referendum.

There are several practical considerations. For example, in the other place I represented a constituency that had a large prison in it. Working out whether those people were best served by maintaining their relationship with the Member of Parliament who represented them in their home patch or whether they were my constituents for the issues that they raised with me, exercised my mind on many an occasion. These issues have to be resolved and worked through and they are by no means straightforward.

I remember being told many decades ago by a governor of Barlinnie prison that part of the problem was that we had not appreciated that we send people to prison as punishment, not for punishment. This was at a time when the Scottish prison system was in complete turmoil; we were caging people within cells in Porterfield prison in Inverness to control their behaviour. Many people are punished further than the courts intend by being denied that right and that responsibility when they are in prison. For the bulk of our prison population, whether they lose their vote is entirely a matter of luck. Most of them are in and out in such a short period that, if there is a coincidence of an election, it is entirely a matter of luck—to do with how their case is dealt with, the time involved and the proceedings—whether they are denied a vote. It is not as if everybody who is convicted of a crime between elections is denied a vote in the next election; it is entirely a matter of random luck. The sooner we resolve the issue, the better. The opportunity that my noble friend has given us to air some of these issues has benefited this House and the debate. I commend him once again for introducing this matter.

[Lord Lloyd of Berwick]

My Lords, I can be very brief, mainly because I have not so far taken any part in the issue which has been urged for so long and so very effectively by the noble Lord, Lord Ramsbotham. However, I have listened to the debate this afternoon, and it seems to me that by supporting the amendment we will be taking at least a step in complying with the judgment of the European Court of Human Rights which has been outstanding for so long. It may not be the best solution—I do not know whether it is or not—but, on the principle of half a loaf being better than no bread, I lend my support to the amendment.

--- Later in debate ---

[Lord McNally]

If the Lord Chancellor said it, he must have been speculating.

[Lord Browne of Ladyton]

Taking into account the very wise advice from the Minister’s noble and learned friend Lord Mackay of Clashfern, I think that the Committee is entitled to ask the noble Lord for an assurance that the Government will promote legislation according to a timetable that does not leave this country in the ridiculous position of agreeing to allow prisoners the vote when the referendum is imminent but denying them the vote in the referendum.

[Lord McNally]

My Lords, if there were a general election next January, prisoners would not get the vote even if the Government had announced their intentions in December. The two things are separate. The Government will announce their intentions on prisoner voting and it will be handled in the proper way with a Statement in both Houses. As I said, the usual channels will find an opportunity for a full debate and in due course legislation will probably be brought forward. However, that legislation is separate from the legislation currently before the House, which is why—

Parliamentary Voting System and Constituencies Bill

Lord Browne of Ladyton Excerpts

Monday 13th December 2010 Lords Chamber

[Lord Tyler]

No, it is not. That is an absurd point. I am simply talking about putting in place a major change in the electorate, changing the whole qualification for voting in parliamentary elections between now and 5 May. I agree entirely with the noble Baroness, Lady Kennedy, that that is a reform that I supported and that I hope that the Government will get around to. Incidentally, her own Government, I am sad to say, did nothing to move in this direction. I hope that our Government will make progress on it before the general election in 2015 but it would be totally irrational to attempt to do it before 5 May, and that is my last word on the subject.

[Lord Browne of Ladyton]

Before the noble Lord sits down, the deftness of his footwork in response to my noble friend was good enough to ensure that those who are putting together the next “Strictly Come Dancing” competition should approach him. Not only did he change horses between the point that he was making, the intervention and his response to it, he moved to a different racecourse altogether. The point that he was making, as I am sure that the record of this debate will show, was that it is entirely inconsistent and confusing to have two separate electorates approaching the same polling station for both a referendum and the contemporary election. That is exactly what he was defending, time and again, from those Benches, if not from that exact spot, as we were making that very point to him.

The amendment does not propose to fundamentally change the electorate for future elections. It proposes to change the electorate for the referendum. That is exactly what the noble Lord has been supporting up until now in relation to Peers, with a distinction between those who can vote, perhaps in local government elections, and those who are citizens of the EU or whatever and cannot vote. We will have an opportunity to address that issue. Will he address why he has now been persuaded by our argument and is now parroting it back to us? What will the consequences of that be for his future voting intentions towards the Bill in Committee?

[Lord Tyler]

My Lords, I am just making a simple point. I want to change the qualification for voting in parliamentary elections. If it is possible to do that between now and 5 May, and I very much doubt it, there is of course a case for it to be part of the qualification of voting on the referendum that, as is in the Bill, you are already qualified to vote in the parliamentary election. That is my simple point. I was taking up the very proper challenge from the noble Baroness, Lady Kennedy, that for those who want to vote in general parliamentary elections we should make this change and reduce the age to 16. I accept that. I do not believe that we can do that in practical terms before 5 May, and I was making a simple point about the confusion that could arise if we were to attempt to do it just for the referendum and not for any other purpose. That is all.

--- Later in debate ---

[Lord Maclennan of Rogart]

I would be interested to hear the views of the Electoral Commission on that. I do not regard myself as an expert on these matters but I doubt it is quite as easy as that, given that the timing for the Bill becoming law is decreasingly clear.

My final point may not carry so much weight but I believe that our 16 year-olds are increasingly very interested in politics, which is why I want to see a change in the voting age. However, I do not believe that in a few months’ time they are likely to be able to discriminate between different electoral systems when they have not been thinking about voting. It is highly improbable that even their teachers would be in a position to give them guidance on the virtues and merits of different electoral systems. We have heard arguments being put forward on the Benches opposite and conflicts between the noble Lord, Lord Campbell-Savours, the noble Lord, Lord Foulkes, and others about the merits of the supplementary vote as opposed to the alternative vote, or various kinds of alternative vote. Without prior discussion or only the most minimal educational input on this issue, it is extremely improbable that 16 year-olds would add greatly to the authority of the decision to be taken next May, if that is the date decided upon. Therefore, for the three reasons that I have given, I would prefer to see the system of voting change and for subsequent referenda to follow the electoral register.

[Lord Browne of Ladyton]

I would like to ask the noble Lord a very simple question. Can he tell your Lordships’ House which members of the public he thinks have been thinking about these issues with the necessary intensity to make the decision he has just proposed needs to be made?

[Lord Maclennan of Rogart]

A large number of people who have voted in previous elections feel that their vote did not count and that the relevant constituency remained dominated, come hell or high water, by the party which had been there for over a generation. I am bound to say that those people are likely to look at alternatives with a passion and concern not shared by a new voter, who may simply be mystified by what could appear to be a very academic debate. Consequently, I do not think that the noble Lord’s intervention has much substance.