Defamation Bill

Debate between Lord Lucas and Lord Browne of Ladyton

Tuesday 15th January 2013 Grand Committee

[Lord Lucas]

My Lords, I am very grateful to my noble friend for that explanation. Our noble friend Lord Ahmad has been doing a superb job, and I have been immensely impressed. I had assumed that my noble friend Lord McNally was silent because he was serving time in the penalty box after voting against the Government yesterday.

[Lord Browne of Ladyton]

My Lords, those of us on this side of the Committee welcome this amendment because it follows the advice and recommendation of the Delegated Powers and Regulatory Reform Committee and the advice of the Joint Committee on Human Rights, but mostly because an amendment—identical in effect if not in words—was moved by my honourable friend Rob Flello in Committee in the House of Commons and was rejected by the Government. The reason given by the then Minister Mr Djanogly was that:

“The Government consider that the detailed and technical nature of the proposed regulations, and the fact that they will govern procedural issues, means that the negative resolution procedure is more appropriate, and provides the appropriate level of parliamentary scrutiny”.—[Official Report, Commons, Defamation Bill Committee, 21/6/12; col. 122.]

That sentence, in itself, argued for why that was exactly the wrong procedure for these regulations. I am pleased to see that the Government have accepted that that was the case and have now welcomed this provision into the Bill.

Having listened to the debate on Clause 5, I do not share the level of guilt that the noble Lord has for having had his colleague deal with it. I am delighted that my noble friend Lady Hayter has agreed to do this. She is well equipped for the job and, indeed, has much greater experience than I have in your Lordships’ House, which makes her better equipped for this complicated part of the Bill than I am.

I believe that the most important part of Clause 5 will be the consultation on the regulations, which everyone who has come to lobby me about this part of the Bill seems to be a part of. I understand that the noble Lord, Lord Lucas, may well become part of this consultation process. Maybe it is time for all of us to become part of this consultation process, because looking as I do now, in the light of the discussion that has taken place in your Lordships’ Committee, at the 26 paragraphs of this consultation document, I would like to have my say about what should be in these regulations.

It might be helpful if some process was set in place so that those from all the various interests that are represented in your Lordships’ Committee who have shown an interest in this Bill could have an active role in a process of discussion in respect of these regulations. Otherwise, I suspect that at some stage in the progress of this Bill—perhaps on Report—we may find ourselves timetabling insufficient time for the debate that will ensue in relation to Clause 5.

--- Later in debate ---

[Lord Lucas]

My Lords, I am slightly sad that this privilege should not be extended to the Daily Mail, if one can imagine how that would work. I am concerned that the definition of “journal” should be wide enough. There are a lot of what might be called open-access journals now, rather than just the ones that are paid for, and I find them much more useful because I can actually get to read what is in them rather than being asked to pay £20 a time to see if what is in there is of interest to me. As the amendments point out, there are a number of websites that serve very similar functions, where intense discussions take place.

Even with regard to the Bill, how much does the word “journal” cover? Would it include Scientific American, for instance, or similar publications? At what point does something stop being a journal and start being a magazine or a publication that is ineligible under this part of the Bill?

[Lord Browne of Ladyton]

My Lords, I support the direction of travel that the amendment proposes, but this is not yet a complete process. Let me explain. I had the benefit of a long engagement with the noble Lord, Lord Hunt, in the early stages of the evolution of this amendment, and I gave him my views on this issue, which were quite strong. My understanding was that the purpose of the early amendment that was put to me was to create an environment in which there could be a debate or dialogue on an issue of controversy, in the public domain and in a moderated fashion, but which would attract privilege.

I expressed my concerns to him about that as an idea, and I summarise them in this fashion: while I agree that there needs to be the sort of debate among scientists, technical people and academics that the noble Lord, Lord May, robustly describes regularly to us, to the benefit of our deliberations, I am not entirely sure that it is in the interests of everyone who is affected by that for it be taking place in public. To give an example off the top of my head, if someone had concerns, based on good technical analysis and engineering understanding about the braking system of a mass-produced motor vehicle, then if I were a shareholder in that firm I would be very unhappy if that debate took place in the public domain before it was settled. I would be equally unhappy if we as legislators allowed that public debate to have privilege, because one could guarantee that no one would buy that motor vehicle while that debate was taking place and it could ruin a business. I am sure that others can think of many other examples that would be entirely inappropriate. So I have reservations about that.

However, if the amendment is not seeking to generate that sort of debate or a forum for that sort of debate and to allow it to attract privilege, and I do not hear that it is, there is now an interesting evolution of the peer-reviewed statement in scientific and academic journals that Clause 6 was designed to create the opportunity for, and to allow there to be privilege. It could properly reflect the changing, modern environment that we live in, where there is the possibility that the organisations that have been given this role, if they all accept it, could provide an opportunity for healthy debate and discussion—an appropriate point in the public domain that would aid academic consideration, and which would aid technical and scientific discussion. I have a number of problems with that and I do not think that we should conclude our debate on this issue at this stage. I hope that the Minister will approach this in the way in which he approached Clause 5 and say that the Government will take this away and think about it.

My understanding of Clause 6 is that it depends on the fact that what is published in scientific or academic journals—they could be e-journals—is entitled to privilege because it is peer reviewed. It does not reach the public, a wider audience, until a controlled discussion has taken place among those people qualified to do so. People who work at that level in a discipline are used to reviewing each other at peer level. We have significant confidence in them. Those of us who do not have the expertise in particular disciplines rely on them heavily as regards what, for example, the BMJ, will allow to be published.

If another institution, or a set of institutions—for example, the institutions identified by these amendments —is willing to take on the responsibility of that level of peer review before it allows these statements to be published, I am entirely in agreement. If that generates a controversial debate, we should consider whether that debate started by a peer-reviewed assessment should attract a level of privilege. I do not know whether other Members of the Committee will share my view that this is a really interesting idea but that it needs a lot more work. I am not in a position to do that significant amount of work but the one question that I ask the noble Lord, Lord Hunt, is: what is the equivalent of this addition of peer review? We on these Benches could not support a view on an issue of controversy, which potentially could be defamatory, being exercised in a privileged environment just because it was a view held among technically gifted people, scientists or academics. I think that it could be just as damaging.