Her Late Majesty Queen Elizabeth II

Lord Triesman Excerpts

Saturday 10th September 2022 Lords Chamber

[Lord Triesman (Lab)]

My Lords, it is a real privilege to take part in this debate and to follow the noble and right reverend Lord, Lord Sentamu, and his inspiring words, and also the noble Lord, Lord Cormack, not least because I so strongly share his feelings about the first couple of short speeches by King Charles and the sentiments that they involved.

I do not think it would be to any purpose to repeat the many things that have been said about Her late Majesty’s graciousness, kindness and ability to respond to people in such a personal way—a pleasure which I enjoyed on a number of occasions. Those things have been said. It may well be that what we should remember are her comments when she described her first speeches as having been “green” but that none the less she was delighted to have made the commitments that she made and to have seen them through. I sometimes think that the best one can expect of one’s children is that after their long experience, we hope, of you as a parent they will say that they thought you a good parent and that you have contributed in a significant way to their lives. That is certainly the way I think with affection and humility about the late Queen.

A number of us have inevitably reached for anecdotes because they are not just expressions of the good luck and good chance of having met Her Majesty—in my case, a number of times—but illustrate things about her which, if you had not gone through those experiences, you would not necessarily know. When I first went as a Lord in Waiting, I had the great good luck of her inviting me to have lunch, and we sat, just the two of us, at a small table. She said, “I always have a light lunch”—I think I am allowed to say something about what she said—“I have ordered a ham salad but I thought you would not want a ham salad, so I have ordered a smoked salmon salad for you”. I thought how nice and good to have thought that, as it was absolutely true that, for various religious reasons, I would not have been able to eat a ham salad. It was a most enjoyable discussion and a very enjoyable lunch.

The noble Lord, Lord Jay—we do not sit on the same Benches, but I think of him as a very good friend, as many people in the Foreign Office become very close to the Diplomatic Service—was in Buckingham Palace at the time. As noble Lords probably saw yesterday, he is a very tall man and, wearing a hat with plumes which stuck up about another two feet, he looked like a basketball player on day release. He was introducing ambassadors, as he described. Her Majesty commented on the fact that there were more ambassadors arriving in London than she had ever seen in the course of her reign and that many of them were from countries she had had to look up. Bosnia-Herzegovina was one that day, and there were one or two others. It created in me a very strange memory. My father gave me stamp album—it did not have many stamps in it—when I was a small child, and I would looked through it and see all these countries, such as Bosnia-Herzegovina, and wonder where on earth they were. There were all sorts of places. I kept that stamp album because it was such a strange moment in history. Her Majesty very graciously said that her grandfather had collected stamps and had some wonderful albums. She asked whether I would like to see them and said that perhaps they would compare with my stamp album. I thought that was extremely unlikely, but I was delighted to take up her offer.

That was not the first time I met her. The first time was in the context of a football match. I have to say that I never thought of Her Majesty as being a very keen football person. There are no horses involved in the game and, try as we might to devise it, we could never find a way of involving horses in football. I had been told that she had a wonderful sense of humour and that she was at the match. She was indeed very gracious and, at the end, when I asked whether she thought anybody had played particularly well, she said, “The band of the Scots Guards”. I thought that was probably a pretty accurate reflection.

Funnily enough, the Scots Guards come into another memory I have, of when President Lula of Brazil made his state visit. At the state banquet, one of the things that Her Majesty liked was to have the pipes of the Scots Guards walk round the outside of the banquet table playing, as only they can. This playing “as only they can” gave a profound shock to President Lula, who thought it was either a declaration of war or something which he had never come across before. He said, “Do you always do this?”, and before I could answer Her Majesty said, “Of course we always do it”.

I have those memories and I couple them with affectionate memories of His Royal Highness Prince Philip, who was also so important on so many of those occasions and who also deserves great credit.

It has been said in this House that, during the course of her long reign, a huge number of things changed. I want to focus briefly on one of them. The invention of atomic weapons took place earlier, and the first explosion of atomic weapons took place during the war. But when thinking about those 70-plus years it struck me that, in that time, we have created circumstances among humanity where we have a capability we did not have, and which was not really thought of when Her Majesty was in the forces, to destroy ourselves completely and wipe out everything we know about human existence. We have the capability not only to obliterate the whole of the past but to obliterate what would have been the accomplishments of the future. I think Her Majesty had a strong sense of the value of the accomplishments of the future as well as of the traditions of the past, and she was well able to talk about them and make you feel them. That is something that I feel at the moment.

At the heart of it was a love of peace and democracy. She espoused both of those, though not in the sense that she would not wish to stand up to ruthless dictators who would try to interrupt peace or destroy democracy; quite the contrary, she would certainly always have wanted to do that, but in the cause of peace and democracy. I treasure having lived through a period in which a monarch felt so strongly about those things.

Yesterday, the noble Lord, Lord Polak, said a little about Jewish tradition at the end of a person’s life, and with great respect to those who are going to shelter my faith under their umbrella—although it does not always seem to me to happen, but none the less I am very keen that they should—I want to do one other thing which is also from Jewish tradition. Many noble Lords may well know it: we wish the family and the people closest to the person who has died long life. It is not just because we wish for them a long life—though we do, of course—but because it is in the lives of the people who survive that memories survive to the greatest extent. We carry the memories. God bless the King. May he have long life and cherish those memories.

[The Lord Bishop of Coventry]

My Lords, it is a great honour to follow the noble Lord, Lord Triesman. I will offer some words of tribute on behalf of the people of Coventry and Warwickshire, especially to express our great thanks for the Queen’s part in the renewal of Coventry after its wartime destruction and its discovery of a new identity, aspiring to be a city of peace and reconciliation.

A few days after the worst of the bombing of Coventry, the Queen’s father stood in the ruins of the cathedral and wept. In 1956 the young Queen laid the foundation stone of the new cathedral—a new cathedral for a new Queen, in an ancient city now being rebuilt for a modern age, in a nation finding its place on the international stage in a new Europe and a new world. In 1962, 60 years ago this year, the Queen—herself a consecrated monarch, of course—returned to Coventry for the consecration of the new cathedral. There was hope in the air, and Coventry became a national symbol of the traumas of war, with all its suffering still evident in the ruins, and the possibilities of peace built on reconciliation rising from the ashes of the past into the simple grandeur of the new cathedral. What better person than Queen Elizabeth to lay the foundation stone of a new future and to see a building, a people, a nation consecrated to serve the ways of peace?

Serving the cause of reconciliation for which Coventry Cathedral and its city have become known was remarkably demonstrated through the Queen’s service to the nation and the world, as we have heard in many ways. The Queen helped the nation to celebrate its past and carry forward its great traditions and noblest values while, at the same time, reaching out to the future, accepting its challenges, welcoming its opportunities and easing its coming. Whether steering the nation from imperial power to shaper and sharer in a Commonwealth of Nations, or facing head-on the harm that peoples have inflicted on themselves in families, in communities and between nations, and showing them how we may live better together, the Queen well used the strength of her character and the powers of her office to create new conditions for co-operation.

Among the many examples on the world stage, I pay particular tribute to the Queen’s part in Coventry’s and the country’s reconciliation with Dresden, that symbol of the brutality of war and its challenge to face our own past. Her visit in 1992 with one of my predecessors was a brave act and not without cost to her. It exposed emotions that were still raw in that city, but I know from my own many visits and close relationships that it was deeply healing, transformative even, on the long road to reconciliation.

As we have heard powerfully from the noble Baroness, Lady Coussins, and the noble Lord, Lord Alderdice, the Queen’s words and gestures—the way she used the combination of her status and credibility of character to serve the good of the future—were breathtaking in their effect during her state visit to the Republic of Ireland in 2011 and then Belfast in 2012. Again, we saw something, as we have heard, of the risk and cost that walking the road of reconciliation involves. There are many other examples, of course, in her long years of service, as indeed there are in the untiring, unstinting work of her son, our King, in his now former life.

As has been acknowledged, the Queen’s own foundation, the rock on which she built her life, is well known. The cause for which she felt and knew that she was consecrated—God’s kingdom, peace, justice and mercy—served her well. We know that it will also serve our King well. It makes me wonder whether all our foundations and all the causes to which we give ourselves will be as secure and enduring as hers.

The most reverend Primate the Archbishop of York referred to his granddaughter crying when she heard the news. I cannot resist saying the same about my mother. She is 93 and frail. She wept for the Queen and, I think, all that great generation that is passing. She said, “She was always there”—we all feel that—but she also said something that got it for me: “The Queen had such a beautiful face. It was her smile.” That has been referred to already. I was blessed by that smile in the encounters I had with Her Majesty our late Queen. Genuine life-giving smiles can restore relationships that once looked irreparably damaged. Our world is a better place because of the smile of that gracious lady.

Child Trust Funds

Lord Triesman Excerpts

Monday 11th October 2021 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, I do think that the small payments scheme is the way forward. One of the mysteries in this cock-up, if I can use that word from the Dispatch Box, is why a proposal from the Law Commission in 1995 was, it seems from Hansard, not picked up by anybody in 2005 when the Mental Capacity Act was passed. It is that problem that I am now trying to resolve.

[Lord Triesman (Lab)]

My Lords, I welcome the timely Question from the noble Lord, Lord Young. There are some other funds directed at children with distinct needs. Her Majesty’s Government have repeatedly told local authorities that the premium plus grant, which is made available to children who are adopted from care in England and Wales, should be available to children adopted from overseas to ensure real equality for these kids, who often have significant educational difficulties. Will the Minister reissue the advice that Nick Gibb has issued and enforce the provisions of the Children and Social Work Act 2017 for these adopted children, and will the Government compel recalcitrant local authorities to act speedily and properly?

[Lord Wolfson of Tredegar (Con)]

With respect, my Lords, I think that that is a question for the Department for Education. I will pass it on and ask the department to write to the noble Lord with an answer.

Prisons: Staff Safety

Lord Triesman Excerpts

Monday 11th July 2016 Lords Chamber

[Lord Faulks]

Clearly, the prison governor at each prison will have to focus his or her attention on that. As the noble and learned Baroness will know, more autonomy will be given to prison governors, and one of the main objectives of that is to ensure that, so far as possible, prisoners have a greater time out of their cell engaged in purposeful activity or on courses or otherwise, not simply locked up in their cell.

[Lord Triesman (Lab)]

My Lords, some years ago I had the opportunity to serve on the Home Office prison education committee, and I was always impressed by the content and variety of the courses on offer. However, it was said at the time that it was very difficult to get people to the courses because there were too few prison staff to get them there, and because they could not guarantee the security of the teachers, who largely came in from the further education sector, given that the nature of the crimes for which people were imprisoned included more violent crimes. I hope the Minister will forgive me if I say that, although that was many years ago, essentially we are being provided with the same account now. It does not seem that we have moved on enormously. Can he describe some of the initiatives that will reflect the intention to increase the amount of prison education and the rehabilitation that goes with it?

[Lord Faulks]

The noble Lord is of course right that the challenges are not entirely new and that the logistics of ensuring that prisoners are taken to courses and to facilities where they can obtain education will always be a challenge, particularly with a large prison population. There was a report by Dame Sally Coates into the education of prisoners. That they should be given education is clearly very much at the heart of the advantage we believe can be obtained by rehabilitation, and it will be up to prison governors in a particular prison to ensure that this happens. They will be judged by the delivery of this education. By giving greater autonomy to prison governors it will be much less easy for them simply to say, “This is all too difficult”.

Defamation Bill

Lord Triesman Excerpts

Wednesday 19th December 2012 Grand Committee

[Lord Triesman]

My Lords, I join noble Lords who have thanked the noble Lord, Lord McNally, for the way in which he has approached this and the kind of solution that may now be very close to fulfilment. To be candid, it is not a position that I thought likely to be one of the outcomes, but I can see a great deal of the sense of it. I can also see that it fulfils part of his aim that there should be greater clarity for people who need to use this law; that there be a better, more effective law; and that we should not end this process with the same lack of reputation in this general field from which we have perhaps suffered in the past.

I will draw several arguments about the heart of the Bill together in a moment. I understand the strength of the proposition that if judges are to decide, in the ways that they are capable of deciding, that would be better than providing an extensive checklist.

In his opening statement, the noble Lord, Lord McNally, said that he believed that the courts and the judges would have a mind to these kinds of things as they formulated their views. That is fine up to a point. The point where I think it needs a little more testing is that it would be helpful if, when the law is on the statute book, there was a sense both of what Parliament believed were critical issues and of what the Government had said in their responses were critical issues. This is not just a matter of what the legal opinions are; views are now widespread among the public of the United Kingdom about what it is or is not legitimate to do.

Let me turn directly to Amendment 14. A short while ago, the noble Lord, Lord Phillips of Sudbury, said that there may be a clearer enunciation of at least one part of it. I do not think that he was talking specifically about his amendment; I think that he was making a general proposition about clearer enunciation. Indeed, I do not know whether his amendment is now a matter of fact or opinion, as it may or may not have been withdrawn.

Let me look at the two words “public interest”. When somebody uses those words to me, I understand them to mean that there is an entitlement by the public to learn of matters that are of the public interest in a broad sense—knowledge of policy practice and the debates on all those matters, what might be wrongdoing, malpractice or malfeasance, many aspects of social and cultural life, scientific knowledge and other scholarly knowledge. There is probably a long list and my point is not to produce a checklist. That is what I broadly understand “public interest” to mean.

What has also become entirely clear over many years is that many of the editors of newspapers—and this was also clear in the evidence that they provided to Lord Justice Leveson—do not think that that is the whole of what is meant by “public interest”. They have a fundamentally different view of what public interest is. I am not thinking of the things that Lord Justice Leveson and others have said were criminal intrusions into the privacy of individuals. Those are covered by criminal law, which is more or less adequate, although that, too, is probably a matter of debate.

My point is that common practices in parts of the press and parts of the culture of the press mean that there is a view of what is in the public interest and that it means whatever those editors believe might interest the public, whatever it is. Consequently, they can libellously or otherwise intrude into aspects of private life—as I said, I am not going into the criminality of the means by which they obtain the information—so that, for example, if they have discovered by one route or another that someone has a medical condition that they are discussing with their mum, that becomes a matter of public interest in the sense that the public in a prurient way may be interested and that it will unquestionably sell more copies of a newspaper if it is in that newspaper. That is entirely unreasonable. In some cases, of course, that may just be a matter of intrusion of privacy, but it is clear that on occasions it could have a defamatory effect on the person who is being written about.

I am not in any sense content to believe that the simple words “public interest” will convey to Paul Dacre that he is not, as he seems to believe, the ultimate arbiter of anything and everything that we should consider to be in the public domain. That should not be the last word on this and we should not allow it to be. That applies, too, to the former News of the World journalists. I say to the noble Viscount, Lord Colville—

[Lord Lester of Herne Hill]

I wonder whether it is any comfort to the noble Lord, Lord Triesman, to know that the courts have made it quite clear that there is a significant difference between what is of interest to the public and what is in the public interest. The two are not the same.

[Lord Triesman]

My Lords, I am very grateful for the intervention because it will cut out my saying a great deal more. However, it would be helpful, in the same spirit as the noble Lord, Lord Phillips, intended when he said greater enunciation might be sensible, for the legislation that we are looking at to somehow indicate what that distinction is, so that somebody who does not study law as a matter of practice can pick it up, read it and understand exactly what is meant by it. I am very grateful for the intervention because that is precisely the point that I wanted to make.

Finally, I will say something about the list that is about to be removed. It goes back to the point that I was trying to make about Parliament and the Government giving at least some indication of the things that might concern them. I was intrigued by—and at one stage convinced of the importance of having in subsections (2)(d) and (2)(e)—the words that appear there. Even if the words do not finally appear in the Bill, it should be understood, under subsection (2)(e), that when somebody publishes information, the reliability of the information is capable of being subjected to some real test. I do not know whether that is another point that the argument of the noble Lord, Lord Lester, may have in part answered. However, what seems to be true is that there are often few demonstrations of the sanity or motives of those who have provided information that simply gets reproduced and, on occasions, is not withdrawn. I say to my noble friend Lady Bakewell and to the noble Viscount, Lord Colville, that not every journalist uses the standards that I am pleased to acknowledge that they plainly do. Not every journalist does that by a long chalk.

In those cases, knowing about the credibility of the information seems important. It is something that one would want Parliament to have expressed, even if it does not appear as a list in the Bill. Equally, in subsection (2)(f), although I am conscious that bad experiences should not be promoted into the making of law, it seems important that people about whom things are to be written should have at least some knowledge of them or some opportunity to say something about them before the event happens. If those were the ways in which interpretation of the law by judges were achieved, that would amount to great progress here. I conclude by stating that if judges do that, and if lawyers put arguments to the judges, my anxiety—which I guess I will just have to live with—is that we will not be talking about a cottage industry but rather a major multinational for the time being.

[Lord Lloyd of Berwick]

To correct the record, the noble Lord, Lord Lester, referred to Sir Brian Neill and the huge contribution that he made to this part of the law, but he did say that he was in hospital. I am happy to tell the Committee that he is now back home and will no doubt be following this debate with the greatest interest, either in Hansard or possibly—he is sufficiently technically minded—on television.

--- Later in debate ---

[Lord Allan of Hallam]

I shall aim to do so. I turn specifically to the amendments. Let me work through those. There is a lot of merit in Amendment 23A, on the electronic platform. I am interested in the Government's response about what they perceive the legal definition of a website to include. It is certainly the case, and the expectation in the technology community, that most content will be accessed within as short a space as two to three years, primarily through untethered mobile devices and applications—specific applications tied to a particular service. The traditional notion of going to a web browser and typing in a web address will not necessarily be the dominant form of accessing information. It is a fact that most information and contact will be delivered in a different and more sophisticated way, and it is important to ask the question now as to whether the definition of website that the Government intend covers this wide range of information services or is intended to cover stuff delivered by the http protocol; the traditional web browser.

In the context of Amendment 25A and the notice to be posted alongside the publication, I have concerns about how realistic that is. I disagree with the noble Lord, Lord Lucas, about how straightforward that might be. Given the different formats out there and the wide range and type of contact that may be posted, to be able to guarantee that a notice of complaint is posted alongside the original content may prove to be much more technically complex than has been imagined. I wonder about the value of doing that given how people access content through small-screen devices and the way in which the content scrolls and moves rapidly these days. The idea of a notice next to a piece of content is again looking back to the newspaper model, where you have something much more static and in a much more defined format. I have questions about the workability of the notice in Amendment 25A.

The e-mail contact in Amendment 25B goes back to the website versus platform debate. It may come as a surprise to the Committee but e-mail is a dying communications mechanism. Young people do not use e-mail. E-mail is for work and if you want to communicate with people whom you know and like and with organisations, you use different forms of communication—instant messaging-type applications and a whole range of new communications services. In the context of how website operators might receive complaints, e-mail is probably for a large operator one of the least efficient ways of doing this. It is relatively unstructured and people will send anything to an e-mail address.

A much better approach, if we want to include something in the Bill, is to say that there must be an efficient contact mechanism and then allow the website operators to determine the most efficient contact mechanism for them. In the case of a lot of the large providers, their preference, rather than e-mail, would be for people to use a contact form. A contact form allows you to give guidance to the person. You can have a very simple flow. Somebody types a defamation on a website. The website says, “Hey. If you want to report defamation go here”, and they are given a screen that takes them through all the information that they need to provide in careful detail and then offers them a form that they can send in. The great advantage of that method is that the form then sends the information to the legal team to do an assessment, with all the relevant contact information. A smaller operator may choose to use e-mail because they have nothing else and they do not have the technology, but we should not specify the technology used for contact in the Bill. We should leave that up to the operators.

Those are my comments on this group of amendments. I know that we will come back to the larger issues of principle and the balance of power between the complainant and the website operator in the next group.

[Lord Triesman]

My Lords, I will try to do this as briefly as possible. I support my noble friend Lady Hayter’s amendments and also—I hope it does him no harm—the amendment and comment of the noble Lord, Lord Phillips of Sudbury. I was responsible for intellectual property at the relatively short lived Department for Innovation, Universities and Skills. One of the things that I found completely astounding, almost every day, was that when we tried to deal with widespread theft of other people's intellectual property, and the propensity of some people to use the internet for serious criminal purposes involving children or whatever, one argument always and consistently was put to us. “We are only a conduit. We are no different from the Post Office. It went through in a sealed envelope in the mail. Who would know? Why on earth should we take any responsibility?”.

What I observed, as noble Lords may expect, from this sequence of events was that it was perfectly okay for people who are creating music, film, literature or many other products that are vital to the creative output of the United Kingdom—and very successful in the interests of the economy of the United Kingdom. But their interests were as nothing when compared with this apparent complete barrier to dealing with anything that happened to be done through a web platform or internet company. They had no responsibility in any circumstances. I have never bought that argument, which is why I agree so strongly with the noble Lord, Lord Phillips, on the matter. It may be very complex and it may be that the technology keeps advancing, but the reality is that, unless there are some restraints on what people can do with this form of technology, the argument inevitably goes to the point where it is possible to protect individuals, even with inequality of arms, from some forms of publication but they are completely and inevitably lost when it comes to electronic publication. That is a very dangerous and damaging concept for our society.

I know the importance of the businesses and the value of the work conducted by the noble Lord, Lord Lucas, and others, but I respectfully say that the idea that Twitter or anybody else is not making money out of it is completely bizarre. It is not, of course, making money in the sense that people who post anything on Twitter are paying for it; at least in general they are not. However, advertising revenues are created around these new media platforms, including, pre-eminently, Facebook. The ability of companies to be able to track people’s interests and identify how to approach them with commercial products—I have seen this in sports websites that are associated with Facebook, for example—is an amazing way of generating vast amounts of money. It is no surprise that the companies have become worth so much money in their quoted positions as well.

[The Earl of Erroll]

The noble Lord, Lord Triesman, had Second Reading to say all this. I have some points on the amendments.

[Lord Triesman]

My Lords, I do not accept that supporting the amendment in the name of the noble Lord, Lord Phillips, is a Second Reading proposition. It may be very difficult, in a number of contexts, to achieve what the noble Lord, Lord Phillips, is suggesting, but it is well worth doing it. A comparison can be made with somebody at a football match. I heard over very many years that when people made loud, offensive, grotesque, racist comments in a football crowd you could do nothing because of the great mass of faces. Then CCTV came along and we were able to do something about it—and it was quite right that we did, though apparently not yet fully successfully. There will be technical means—there probably already are. That is why the amendment should be supported.

[Lord Ahmad of Wimbledon]

My Lords, I am sure that the Committee will agree that, in light of the other contributions that remain to be made and of the time, further debate on Amendment 23A should be adjourned. Perhaps it would be a convenient moment to suggest that we adjourn this debate until Tuesday 15 January at 3.30 pm.

Defamation Bill

Lord Triesman Excerpts

Monday 17th December 2012 Grand Committee

[Baroness Hayter of Kentish Town]

Before I speak to the amendment that has just been moved, and to Amendment 8 which is tabled in my name and that of my noble friend Lord Browne and the noble Lord, Lord Lester, perhaps I may also pay tribute to the noble Lord, Lord Mawhinney, for his work as chair of the Joint Committee. The Minister will recall, because he was at the Fabian Society even before I was, that we produced a book entitled The ABC of Chairmanship written by Walter Citrine. It was a brilliant book, but I have to say that I feel that a small codicil should have been added to it, having served under the chairmanship of the noble Lord, Lord Mawhinney, which is this: see how he does it because that is the best way to do it. I learnt a great deal from him.

As the noble Lord, Lord Mawhinney, has said, our recommendation comes from the Joint Committee and is broadly supported, including by Liberty, the Libel Reform Campaign, the Media Lawyers Association and Which?. As has been suggested, many of the cases which led to the pressure to reform of the law on defamation did not come from hurt individuals but from corporations, often using their deep pockets and access to lawyers to stifle public criticism of them or their products.

It was an American corporation that sued cardiologist Dr Peter Wilmshurst; the British Chiropractic Association sued Simon Singh; GE Healthcare sued Danish radiologist Professor Thomsen; Trafigura sued the BBC; manufacturers are forever threatening or trying to sue Which?; and McDonald’s infamously and, as it turned out, rather stupidly sued two individuals. Nature, the Lancet and the British Medical Journal—organisations that almost by definition exist for the public good—are no strangers to the threatening letters, mostly from corporations. Similarly, we heard in the Joint Committee from Mumsnet, which told us that it was very often the purveyors of baby foods and products, rather than individuals protecting their reputations as parents, which threaten to take action. It is often corporations which do not want negative reviews or sensitive information in the public domain that use this threat.

Yet the high cost of defending even a ludicrous claim brought by a corporation is an inequality of arms—or bullying, as the noble Lord, Lord Mawhinney, said. It is because a corporation can bring a claim where a defamatory statement is said to harm its trading or business reputation that a threat is all that is needed. The Joint Committee on Human Rights regretted the absence from the Bill of some reduction of the use of defamation proceedings by corporate claimants. Its view is that,

“businesses ought only to succeed where they can prove actual damage. The Bill should be amended so as to provide that non-natural persons are required to establish substantial financial loss in any claim”.

The report refers to the evidence of Professor Phillipson, who said that the failure to impose any restrictions on corporations’ ability to sue,

“renders the law on reputation inconsistent and incoherent. Defamation law and the protection afforded under Article 8 has developed on the basis that the protection of an individual’s reputation is a significant human rights issue. Corporate claimants have neither personal emotions nor dignity, and yet are treated as natural persons for the purposes of defamation”.

The report also quotes the Culture, Media and Sport Select Committee’s call for a new category of corporate defamation, by requiring a corporation to prove actual damage to its business before an action can be brought.

The Joint Human Rights Committee dismissed the MoJ’s refusal to countenance any change and concluded that,

“businesses ought only to succeed … where they can prove actual damage”.

Regrettably, as we know, the Government opposed a similar amendment to this in the Commons on the grounds that a corporation has a reputation, even where that does not affect its bottom line. We on this side accept that where damage to reputation affects the company's finances—for example, one can imagine an incorrect allegation that Perrier caused the current vomiting virus that is going around and that that affects the sales and the future of that company—redress should be possible in such cases.

Our amendment is modest. It does not seek to take away all rights for companies to sue, but would merely require them to show substantial financial loss before they were able to start an action.

[Lord Triesman]

My Lords, I have broad sympathy with this amendment and with Amendment 8, and I want to share a small amount of experience with the Grand Committee. I declare an interest as a former general secretary of the Association of University Teachers. One of the things that consistently caused difficulty, probably more in the scientific community than elsewhere but across a number of disciplines, was when people producing research documents and reports found themselves threatened to a point where they decided that they would not publish or where the journal to which they had submitted their article would not publish. In many cases, it had a direct impact on them, not just because the research was suppressed but because publishing in journals overseen by eminent academics is usually the way in which much of the opportunity for promotion and career advancement takes place. Refereed journals are one of the most fundamental routes to promotion to the most senior positions in academic life, so there was the loss of research credibility, the loss of often many years of painstaking research and a very significant barrier to career advancement.

It was one of the inspirations that led some of us to help in the drafting of the 1997 UNESCO normative instrument on academic freedom; I had the great privilege of taking part in this. It was intended to create for academics—although I understand why it should have a wider impact than just academics, that was who we were considering at the time—the entitlement to publish things that were accurate, truthful, based on solid research and, on occasion, unpopular or unfashionable as well. We none the less intended to make sure that all that could happen in the way that all of us would want because a world where people cannot publish or feel afraid of publishing serious academic research is a much impoverished world.

The reason I have such strong sympathy with what the noble Lord, Lord Mawhinney, said is because it is incredibly difficult. With whatever assurances are being given about separating out costs from matters of substance, it is difficult to see how any rational line of defence is available to people. I say with at least a modicum of respect for the lawyers here—and they will understand that I am merely a mathematician and do not have their formidable skills—that the issue that is of concern to many people who are not lawyers is that we have a legitimate view on these matters that is entitled to be heard. In this case, it becomes very important to see all the things clustered together in order to get the right result.

I shall conclude by making a point that I have made before in your Lordships’ House. The amendments deal with corporations. When corporations, particularly wealthy corporations, decide to become claimants, defendants cannot match their power with any equality of arms. It is also not at all infrequent that the claimant finds that they have no equality of arms with the defendant. If you find yourself contesting one of the major newspaper groups, it will tell you in pretty brusque terms that if you really want to bankrupt yourself, to see yourself and your family in penury for very many years, to lose your house or so on, just come on if you feel strong enough. The reverse of this is also true. I make that point because I would not want it lost.

--- Later in debate ---

Taken together, the package of measures that are in train will ensure that costs in defamation proceedings are reduced and that parties are able to secure effective access to justice. On that basis, I hope that noble Lords will withdraw or not move their amendments.

[Lord Triesman]

My Lords, I was loath to interrupt the Minister while he was in full flow, but if I have understood properly the point that he made, there is an unwillingness on the part of the Government to try and compel anyone to go through any other process if that person concludes that the only process they really want to go through is testing the case in a court, with all the consequences. Part of the argument is that by forcing people to go through another process, it might indeed add to the costs of the entirety of the case, rather than potentially to manage and reduce those costs.

If I have understood that argument properly, have the noble Lord and the Government considered whether some independent advice could be given, as is sometimes suggested in, for example, matrimonial cases, whereby people are guided as to whether proceeding through the court is likely to be helpful or appropriate, rather than just plunging in? I suggest that that would be done at relatively minimal cost and might be significantly beneficial.

Forgive me for putting this at any length at this stage in the debate, but one of the reasons why that might be beneficial is that on occasions—and I have seen this—you find that you are dealing with people whose normal place of residence is overseas. They are not United Kingdom nationals and may, none the less, be representatives of significant pools of wealth or of large corporations. They tend to say that they may not be able to follow our legal practice particularly carefully but they have great confidence in the ability of our courts to take on cases and deal with them. By that stage, those people are then on one course, rather than another, with considerable costs, rather than otherwise—and I understand the point that has been made about management of processes in order to reduce costs. I ask the Minister and the Government to consider whether there is some way not of compelling people to take a particular course of action but to seek advice about the likelihood of one route working more successfully than another.

[Lord McNally]

Again, because I am not a lawyer, I will take that away and take advice on it. As regards wealthy individuals who want to test their cases before British judges, although we have been talking about judicial case management, we have a judiciary which is world renowned for its integrity and impartiality and we should not forget that. However, I will take that matter away.

Defamation Bill

Lord Triesman Excerpts

Tuesday 9th October 2012 Lords Chamber

[Lord Triesman]

My Lords, I want principally to focus on a limited but to me important set of arrangements set out in this Bill, and like other noble Lords I am eager to see the accompanying documents to make sure that I have understood it all. During the debate in 2010 on the proposals of the noble Lord, Lord Lester, I felt myself occasionally swimming against a strong tide. Like others, I admire the noble Lord’s tenacity, but on some issues I simply am not at all sure that the point of balance of rights that he prefers is the one that I prefer. Like many of the speakers in that debate in 2010 and like many of the correspondents who have kindly sent their analyses of the Bill to me in advance of today’s debate, it is clear that there are significant numbers in favour of clarifications to the current legislation, and so am I. Most are exasperated by the cost of litigation and by people carpetbagging between jurisdictions to find an advantageous setting for their defamation actions. A significant proportion of the correspondence was concerned to prevent people from being silenced by powerful and wealthy corporations in the context of academic publication.

Of course, as you would expect, there were many restatements of the centrality of reporting and the expression of opinion for the health and vitality of our democracy. That has been repeated in more or less all the correspondence since 2010 and, again, I am not surprised. It is argued that actions for defamation have the impact of censorship and that we live in a democracy that should not tolerate censorship. The public have a right to know. It is a key principle. The exposure of corruption, injustice, negligence and incompetence and preventing misleading and dishonest statements and behaviour should always be open to public scrutiny. It would be hard not to go along with all that.

I have awaited this debate with interest because I wanted to see where the balance might be struck between all these concerns—I am clear that I share them—and the rights of individuals to protect their reputations and their privacy when it is legitimate to do so, and at a cost that they can afford, which was in part the burden of the remarks of the noble Lord, Lord Marks.

The debates in another place considered this balance. I was heartened by the acceptance of the right to legitimate protection of reputation irrespective of one’s means: that is, less wealthy people should be able to protect themselves. That concept often appears much less important than it should in debates, including in this debate if I may say so. Justice for all has to mean exactly that—justice for all, not justice for the well heeled. This was at the centre of my concerns when we debated the proposals of the noble Lord, Lord Lester, and it remains so today. I am not disposed to say nothing about the issue because of the risk of being associated with the so-called “chilling effect”, a phrase much loved by the print media. I suppose that the hyperbolic impact of the phrase is intended to capture a profound truth, but actually it is simply expected to restrain anyone from probing rather more deeply into what a proposal might mean.

Perhaps it is best to start with the positive, which should make it easier in due course to deal with what I think is less helpful. The committee of the noble Lord, Lord Mawhinney, has certainly helped us to approach the positive factors in a positive spirit. Of course, I am strongly committed to the freedoms of speech and opinion that underpin modern democracy. I have said so and I do not need to repeat it at length. It is absolutely right that these figure not just in the Bill but in human rights legislation itself. I completely agree that abuse of the libel laws in the ways that the noble Baroness, Lady Bakewell, has described is also deeply alarming. I am a passionate advocate of academic freedoms.

I had the privilege of taking part in the drafting of the 1997 UNESCO normative protocol on academic freedoms to which the United Kingdom is a signatory. It is worth going back to that document, given some of the assertions that it makes about protections and freedoms. It demands that signatory nations protect and defend academic freedoms for all academic teachers and researchers, with a fairly broad definition of that, precisely because what they publish or say may well, and with good reason, be testing, provoking or unpopular. The noble Baroness, Lady O’Neill, was 100% right to say that this is also the source of much of the structure of the debates that drive the process of accumulating knowledge. The aim of the protocol was to ensure that neither states nor powerful corporations could silence lectures or conferences or prevent publication. The United Kingdom was among the first to adopt the protocol, which was signed for this country by my noble friend Lady Blackstone.

In my view it must follow that we should extend protection in the area of defamation to prevent powerful and well heeled bodies stopping research publication or even threatening litigation to stop publication. The inequality of arms should never be a basis for undermining the fundamental responsibility of all researchers and teachers that is set out in the United Nations protocol and which has been central to the history of higher education in the United Kingdom. For those reasons the provisions in Clause 7 are welcome.

If I have one reservation, alongside the slowness and somewhat ponderous process of peer review, which the noble Baroness, Lady O’Neill, also mentioned, it is that it is not certain to me that peer-reviewed journals are wholly future-proofed. There is a trend towards digital publication and the encouragement of open-source provision of all information in science by the world’s leading universities. I think that is a great advance. Digital publication does not necessarily finish peer review, but it could do so, and you can see how easily it could. Indeed, in some of the newly developing disciplines peer-reviewed journals have yet to appear as journals as there are advances in the disciplines ahead of advances in publication. Perhaps in Committee we can improve on these provisions. It would be good to do so.

I fully support the intentions to prevent libel tourism, and I am equally eager to see a proper restraint on costs. Some of my criticisms might be mitigated if there were some means of limiting costs and the provision of some resource to enable less wealthy litigants to respond to illegitimate and on occasion feral attacks from rich and powerful media outlets. In reality their challenge to citizens is, “Come on if you think you can afford it”. The Press Complaints Commission has become a refuge for many people precisely because they cannot afford to tackle this issue by any other route. However, as we all know, it has not been a particularly effective refuge for people in those circumstances.

On page 4 of its briefing, Justice asserts that it has “seen little evidence” that conditional fee agreements,

“increased access to justice in this area”.

Rather, Justice claims that the scheme was generally used by the,

“same private individuals and organisations who would have been able to bring a defamation claim in any event”.

I am considering here not the merits of CFAs, for which Justice provides none of the evidence that it says it has seen and is probably wrong about, but the underlying implication that people are not really put off by risks and costs. I think they have done very little justice to those who are unable to take on media giants, which can be massively threatening and whose commitment to ethical conduct has been seen in all its gory detail at the Leveson inquiry.

As with the reasoning on the defence of academic research and teaching when pitched against the corporations, this legislation has to deal with the inequality of arms. This is where I have the greatest difficulty with the Bill as it stands. Paul Farrelly MP and Robert Buckland MP looked seriously at this issue in the other place. Mr Buckland rightly said that,

“there is a fine balance to be struck between freedom of expression and the rights of individuals to protect not only their privacy, but their reputation”.—[Official Report, Commons, 12/6/2012; col. 214.]

It has become possible for the less well off to be libelled with impunity and without significant remedy. It may be right at later stages of the Bill to discuss the occasions when judges have themselves undermined the possibility of a remedy. I am with the noble Lord, Lord Mawhinney, in saying that a government view on the management of these kinds of issues would assist ordinary citizens and that we should not be afraid of assisting citizens.

This brings me to the main areas in which I see weaknesses which I hope, given the spirit in which the debate has been introduced today, the Government will be willing to address. They are weaknesses on which Lord Justice Leveson seems likely to report. I do not know how wise it is to pre-empt his report, but we are where we are. First, in an attempt to prevent trivial and vexatious claims, the Bill attempts, according to the Explanatory Notes, to codify a tougher threshold on the serious harm issue than exists now. I can see why this is necessary, but I am not at all clear that the text as it stands in the Bill is an advance.

At present, the law tests whether there is or is likely to be an adverse impact on reputation. The replacement seems to me to involve a very detailed examination of all kinds of matters which I understand people would wish to examine but where it seems certain that there will be a significant increase in costs to possibly relatively little advantage. The noble Viscount, Lord Colville, believes that this might help. However, I fear that the detail required may greatly increase the price of the provision beyond the means of most people to afford it. Indeed, what would count is itself likely to have to be tested by the creation of precedents, because I doubt that we will see the answer hit upon instantly.

Secondly, it must be wrong to conflate honest opinion and responsible publication. It lends credence to a dubious assertion that it is difficult to separate fact and opinion. It will complicate things to the point of confusion in the relationship between a publication and earlier original publications. It confuses defamatory opinion with inaccurate fact, and I do not accept that it is difficult to distinguish between the two or to create tests that would distinguish between the two. It provides no viable definition of the word “responsibility” in relation to an opinion expressed.

Thirdly, Clause 3, covering “Honest opinion”, seems to someone who thankfully confesses that he is not a lawyer to take a curious view about the way in which people think of their justifications for what they do. At present, as I understand it, a defendant must show that he or she was aware of the facts relied on when publishing. Now it appears that a defendant would not need to know or to have made much effort to ascertain the facts that would justify an honest individual from holding an honest opinion. It is hard to see how you can be honest without at least having made an honest endeavour to find out what the facts were. I am hard put to imagine this exercising any restraint on a number of the newspapers or journalists that I know. It is a further licence to trash people without providing any really intelligible facts as a basis for doing so. That is why I so strongly support many of the things that my noble friend Lord Sugar said.

Finally, the concept of public interest has advanced somewhat in this Bill. I am clear that whatever sells a newspaper is believed by its publishers to be in the public interest, and I can see that it is very hard to provide a tighter definition, but there must be real merit in requiring a publisher to show that a journalist source was credible and reliable. I do not think that is what happens uniformly now, but it seems such a minimal provision. The BBC definition is a credible position, the Ofcom code is a helpful provision, and the NUJ briefing, I thought, was broadly sensible on all this, but it certainly needs more work in the later stages of the Bill.

I completely accept that we need to review and improve defamation law and to do so while protecting democratic accountability, guaranteeing academic freedom and ensuring equality of resource when cases do come to the courts, as some inevitably will, but we are also living in a country that in my view is proud of the idea that is just as much enshrined in human rights law that it is wrong to defame people and wreck reputation without having a proper means of defence and without the victim having proper redress. However we strike the balance, there must be a balance, which is why I welcome the suggestion of the noble Lord, Lord McNally, that the discussions and the improvements will continue.

Public Bodies Bill [HL]

Lord Triesman Excerpts

Monday 7th March 2011 Lords Chamber

[Lord Wills]

My Lords, in rising to support the amendments that my noble friend Lord Stevenson has so eloquently presented and to which I have added my name, I draw the Committee’s attention to my declaration of interests as set out at Second Reading of the Bill on 9 November last year.

The success of “The King’s Speech” at the Oscars, at other awards ceremonies and at the box office this year has been widely celebrated, as indeed has the success of other British films. These are tremendous achievements. “The King’s Speech” was a tremendous achievement for the writer, the director, the actors and everyone involved in its production, and that includes the UK Film Council. As Iain Canning, one of the producers of that film, said, the film,

“wouldn't have been made without the UK Film Council”.

As we have heard and as your Lordships will know, the UK Film Council is now no more. It was abolished last year by the Government by press release. It was hard to understand why the Government took that decision last year, but it is even harder to understand today when we see the tremendous success of these films in which the UK Film Council has played such an important role. The UK Film Council was a flourishing public body competing in a ferociously competitive marketplace. It has helped to treble the turnover of the British film industry in the past 10 years. It supported the development of new filmmakers, funded imaginative and innovative British films, and ensured that British audiences could have access to all the glories of the cinema, with a wider choice of films made available to audiences throughout the country.

So why did the Government do this? In what last year the Observer rather charitably called an,

“impassioned defence of his decision”,

the Secretary of State explained that it was “simply not acceptable” to use taxpayers’ money to fund an organisation that pays its top eight executives more than £100,000 each. That was the justification that he gave. However, the Secretary of State was wrong in saying that. In fact, there were only six such executives, and if that was to be the criterion for scrapping the UK Film Council, why hand its functions over to the British Film Institute, whose latest accounts submitted to the Charity Commission show that seven of its staff received remuneration packages of more than £100,000? That is seven—one more than the number of people in the UK Film Council receiving such packages. It is not clear whether this exercise will save money overall and I would welcome any comment that the Minister may have about whether we will see any savings from bringing those two bodies together.

I entirely accept that no organisation has a right to an eternal existence but, if politicians are going to butcher successful organisations operating in a world of which they seem to have very little knowledge and understanding, they would be well advised to have good reasons for doing so. That is all the more important when the organisation in question depends for its success on a very rare combination of skills: a commercial eye for an audience, an intimacy with the medium, a human empathy with creative artists, the ability to nurture and to develop them, and an inspirational excitement about the cultural and economic benefits which film can offer and which my noble friend Lord Stevenson so eloquently set out. Such organisations are very hard to create and when they work as well as the UK Film Council was working, they should be cherished, not arbitrarily destroyed.

This organisation was scrapped without consultation, just through a press release, and, as far as I am aware, Ministers have not even had the elementary courtesy at any point since then to say anything in praise of the UK Film Council's remarkable achievements, not even about its role in the creation of “The King’s Speech”. I note the contrast with the debate which we had earlier today when the noble Lord, Lord McNally, under assault from all sides of the House, still found it possible to pay tribute to all the good work done by the Youth Justice Board. By contrast, Ministers who take responsibility for this in the other place—I obviously make an exception for the Ministers on the Front Bench in this House who are completely blameless in this respect—have not even had the elementary courtesy to say one word in tribute to the organisation which, apparently, they have so arbitrarily scrapped.

Why should the exceptionally talented people who work for the UK Film Council hang around working for a public body when they all have so many other options—much more lucrative options, in most cases—and when they are treated with such discourtesy by the Secretary of State who will determine the future of film in this country? I understand that the haemorrhaging of talent has already begun. Able and experienced professionals are leaving the public sector for other jobs and no doubt more will follow. Successful organisations such as the UK Film Council exist in a fragile ecology and politicians meddle at their peril.

Of course, there are profound challenges facing film in this country but this casual and ill thought-through decision is not the way to meet them. My noble friend Lord Stevenson has already said that last year the British Film Institute and the UK Film Council discussed a merger and both sides decided, after lengthy discussion and after securing legal advice, that there would be significant problems in making it work. That is not surprising. They are very different organisations. One is essentially a cultural organisation and the other is an industrial organisation. They may sound as though they are all in the same industry and they both have the word “film” in their titles, but culturally, organisationally and in terms of their focus they are very different organisations. It is not surprising that they should have found a merger difficult to work through. That is not difficult to understand at all. It is entirely predictable that much the same sorts of problems are now being encountered in trying to bring these two organisations together. I hope that all responsible Ministers are taking an active interest in the discussions between the BFI and the UK Film Council and can find a way of making this merger work.

Amendment 65A draws attention to some of the unease that has been created by how the functions which have been discharged by the UK Film Council will be discharged in this new era. All mergers, all kinds of takeovers, whatever you want to call this current process, are difficult in every industry and every business. It is notoriously difficult to make them work successfully. I hope that Ministers are not just standing by and relying on all the talented, highly motivated and able people on both sides of this debate to bring this off themselves. Ministers may have to intervene to bring about a successful conclusion and I hope that they will do so.

In responding to the amendment, I ask the Minister to say whether the Government will ensure that the UK Film Council’s research and statistics unit will carry on that essential work long term. I understand that the funding is guaranteed for one year but will they ensure that it is carried on long term? Without a market intelligence function like this, the BFI will be making decisions in the dark. I should be grateful if the Minister could tell the Committee what estimate has been made of the impact of not funding film exports. Film exports under the guidance of the UK Film Council have grown by 92 per cent. As my noble friend Lord Stevenson has already said, in 2008, film exports amounted to more than £1.3 billion. At a time when the Government are placing so much of their hopes for economic recovery on growth in exports, why are they taking away the support function from such a crucial industry? Can the Minister name other crucial industries where support for exports has been similarly scrapped?

Can the Minister also say who will take over the UK Film Council’s role in opening up film to as wide and diverse an audience as possible? How will the BFI demonstrate a strategy which reflects its new responsibility for the entire film sector and not just BFI-related exhibition and distribution? What can the Minister say to assure this House that the BFI will be committed to representing the interests of the film industry as a whole as well as the UK Film Council has done in the past? That is crucial as technology and the economic structure of the industry are changing very fast. What can the Minister say to reassure the film industry and this House that the BFI will address effectively such key issues as film theft, piracy, pay-TV platforms, which are especially important now that Sky has become so market dominant in acquiring film rights for television, and the smooth transition of the film industry to new digital models? As I have already said, the BFI has essentially been a very successful cultural body, so what can the Minister say to reassure everyone that it can successfully take on this complex and demanding new role?

In the coming years, Ministers—I direct my remarks to Ministers in the other place—will be judged by how far the film industry measures up to the benchmark now set by “The King’s Speech”. Ministers may move on to new jobs in Government or to none but the Ministers responsible for this decision now risk being remembered as the politicians who carelessly and needlessly destroyed an important part of the infrastructure of the British film industry. They now have to prove that what they have put in its place will be an improvement. I very much hope that they can do so. These amendments give the Government an opportunity to offer reassurance that they now understand that. I hope that they will take it.

[Lord Triesman]

My Lords, I add my support to the amendment of my noble friend Lord Stevenson and join him in congratulating those who won the Oscars. I perhaps should not forget the BAFTAs, which are more local and also well worth winning, as the same pattern of achievement was there.

I want to address the Committee on this amendment as I had the very good fortune to be the first person designated as the Minister for Intellectual Property, a role which I know that the new Government have also taken on as a ministerial post. The enjoyment from that role came from being involved not only in helping to drive forward businesses but in assisting in the development of cultural industries. I was under no illusion while doing so that Governments do not create business; they simply do their best to set out the conditions in which business might be able to thrive. The advantages of doing that are that, certainly in this country, we are unlikely to make much of our living doing many of the things which we have traditionally done, but we make a very good living from being successful in the creative industries.

Defamation Bill [HL]

Lord Triesman Excerpts

Friday 9th July 2010 Lords Chamber

[Lord Triesman]

My Lords, my wish to speak at Second Reading and in subsequent phases of the Bill arises not from any recent events—I hope that will be recognised—but from a concern that I have expressed over the best part of 30 years about chronic imbalances between the power of the media and that of many private individuals when the media attack the reputations of those individuals. It would have been chilling, if I can use that phrase, not to take part. It is no easy task to speak among so many eminent speakers. The noble Lord, Lord Lester, has provided us with an opportunity to reconsider libel law and I thank him very much for that. I readily acknowledge that the idea of doing so has been growing in the policies of various libel reform campaigners, academics and NGOs for some time. I welcome and associate myself particularly with the comments of the noble and learned Lord, Lord Hoffmann, and the noble Baroness, Lady Kennedy.

I understand the motivation that lies behind these legislative proposals. I have also looked at the evidence provided by several campaign groups and noted that at the general election there was support for reform from all main parties, based on the worst cases that have concerned those groups. So I support the case for the protection of citizen critics and the need for reform. The law is complicated, the outcomes are uncertain and costly, and I see some risks—although I think they are overstated, as Lord Justice Eady suggested—of libel tourism. I can also see that the web has driven wider and repeated publication.

Everyone must be concerned that, in the scientific community, people fear the risk of publishing data questioning the efficacy of products or production methods. This kind of discussion should never be repressed. Everyone will acknowledge the risks faced by research teams and individuals when actions are taken against them by massive corporations with bottomless pockets. The injustice, quite apart from the suppression of discussion central to scientific process and progress, is the hopeless mismatch in the resources of the contending parties. There is no equality of arms; it offends justice and leaves a sense of profound unfairness. We are, in this country, a people who very much dislike unfairness.

Key cases, some of which have just been mentioned by the noble Baroness, Lady Bonham-Carter, have had an impact on the campaign and the pressure groups whose work contributed to the Bill. It has aroused empathy in your Lordships’ House, not least in the two exceptional maiden speeches by my noble friend Lady Hayter and the noble Lord, Lord Willis. We all share a commitment to freedom of expression. Lord Deedes, chairing a JUSTICE committee, described it as “our bedrock”. However, it is not our only bedrock, nor the only prism through which we understand our civil liberties, nor the only source of inequality of arms in cases. Remedies to what has reasonably been called the chilling effect of our libel laws cannot be remedies that undermine other civil liberties and send an Arctic wind through other individual rights that are also, in our country, a bedrock. That is in the area of risks to reputation.

Initially, I believed that campaign groups, NGOs and the in-house media lawyers who have been so vociferous in supporting the Bill were the only voices around. I now know of significant numbers of other journalists, academics and claimants’ lawyers who argue that the Bill, as drafted, presents problems. I think the noble Lord, Lord Lester, has suggested that that may be true and that they can be dealt with as we go through the process. However, none of those people was in the advisory group that helped draft this legislation.

I was moved by the most reverend Primate the Archbishop of York in the debate on the future of this House. He asked what should be our goals and objectives. His answer was,

“revising the law that will maintain freedom and justice for the nation and for every individual within it”.—[Official Report, 29/6/2010; col. 1674.]

Our starting point, then, should be the civil liberty and freedom of individuals and, on that basis, to see what becomes efficacious to look at in the civil liberties of all the other entities in our society. Where in this Bill I see a desire to protect the civil liberties and freedoms of individuals as defendants confronted by mighty corporations as claimants, I ask where the corresponding recognition is of the rights and difficulties of individuals as claimants facing overmighty organisations as defendants. I note that this last class of defendants in the press are the most vigorous supporters of this Bill because they believe—I think, rightly—that it extends and protects their powers.

The eminent lawyer and Guardian readers’ editor, Siobhain Butterworth, correctly observed that today the media hold the ring. They create what scrutiny there is of defamation in many cases and have the greatest continuing interest in particular outcomes. Trusting some of the media groups—some of them have a trenchant history of defamation—to make key judgments on defamation at best is counterintuitive and at worst simply empowers the most powerful and fortifies their self-interest. The noble Lord, Lord Pannick, may be right to refer to the role and experience of the media in respect of free speech—I agree with that point—but he would have assisted me if he had at least dealt also with their responsibilities. Therefore, I ask who is speaking up for the claimants that I have mentioned and for the broad concerns in society for the legitimate defence of reputation and individual privacy.

Every time someone says we need a new balance because the harm that is done, for example to scientific communities, is unacceptable—I agree with that—I am concerned to know how much empirical evidence there is for harm of that kind, which I think is significant, and how much evidence there is for the harm done to individuals and their civil liberties, which are likely to be compounded by releasing the media, through this Bill, from most of their serious obligations when dealing with people’s reputations. I do not think that evidence has been systematically collected and I am sure that it has not been published. It is always important to work on the basis of evidence. There is a strong instinct in this House to do exactly that. However, the first six months of the year have been wholly negative for claimants. I am indebted to Professor Mullis at the University of East Anglia for the data. If there have been shifts in balances—I feel sure that the noble Lord, Lord Borrie, would agree with this, given what he said—they ought to be confirmed by systematic data and systematic research. That is what should guide us in that case.

The Bill redefines “responsible publication”, yet I fear that it fails to list the decisive factors included in Lord Nicholls’ judgment in the case of Reynolds: namely, whether the claimant’s account has been included and what the source of the information was. Weakening the guarantee of an unqualified right of reply to someone whose reputation is being publicly shredded seems to me almost the definition of unfairness. I cannot see that you can attach the word “responsible” to it in any meaningful way. That is not a balance. Moreover, the Bill extends, perhaps to a surprising degree, the scope of the defence to cover comment, effectively blurring fact and opinion. The Explanatory Notes treat this as a technicality. Although I readily acknowledge that I am no lawyer, I think that this flies in the face of the Reynolds judgment. A defendant could rely on being false but responsible. That is no mere technicality; it is the beginning of a wholesale right to an unstoppable defence of public interest. Indeed, in my view, if the Bill were to become law in its current form, it would allow much less scope for arguing public interest and for a successful claim by anyone traduced by a toxic mixture of purported fact and opinion. It is entirely understandable that some publishers and editors support the Bill enthusiastically for that reason.

It used to be thought that the public interest meant that the revelation was justified because greater good came from exposing it than suppressing it—a benefit which any reasonable person would recognise. It exposed fraud, crime, corruption, significant anti-social behaviour, disclosure of decisions, probity and value for money. It was about what would allow people to make significantly better informed decisions on matters of public importance or to expose wrong-doing. However, that is no longer what is meant by the words. They mean that someone—anyone among the public—might be interested in anything that might be said. The Bill gives oxygen to this approach; either it intends to do so or the changes in terminology and language lead in that direction. A robust definition may be difficult to draft, but it is imperative, although I fear it is absent.

The Bill is perhaps rather more one-sided in its changes to the definition of “honest opinion”, although I acknowledge great strengths in parts of Clauses 2 and 3. The difficult area is where a defendant is released from relying only on the facts that they knew at the time of publication. If two sides had broadly similar resources available to them when they came to deal with the matter in finality, this would perhaps not be a problem, but the idea that a defendant can employ any number of investigators who can go on fishing trips all the way up to and including any hearing against a claimant who may well be hazarding their home and their family’s financial future just to deal with the original case, does not strike me as fair. Lord Justice Eady, in the judgment on Associated Newspapers, maintained a rather more reasonable balance of fairness. That is preferable.

Roy Greenslade, as he so often does, summed up these issues effectively when he said that the Bill can protect journalists pursuing a story, even if it is untrue and causes damage beyond repair. They can shrug off the consequences with what he described as indifference, while claimants have to accomplish what might be well beyond their resources. I am sure that a fairer balance can be struck.

The Law Commission, chaired by a Lord Justice of Appeal, has the impartial responsibility to look for balanced and carefully considered solutions to complex areas of law, and I ask the Lord Chancellor, through the Minister, to refer the libel law proposals to the Law Commission for a full and speedy review. I hope that in addition to the proposition of the noble Lord, Lord Lester, for a specialist and expert committee, he will think that that is fair housekeeping in all the circumstances.

I urge the House not to alter access to juries by reversing the presumption. This is an area where the common sense of our fellow citizens will be a clear asset. I ask the House to ensure that the Bill deals with costs, damages and the misuse of private information, and does not finish its parliamentary passage by being almost exclusively about the interest of defences. Like the state of media regulation, which has been mentioned, it may be said that these matters are beyond the scope of the Bill, but actually they are all interwoven, and the operational consequences of the Bill and dealing piecemeal with the issue will probably leave us with a piecemeal solution.

In summary, I am grateful to the House for indulging a non-lawyer. I have looked at the Explanatory Notes and, with respect, I suspect that they do not really reflect the wording of the Bill. I know that the noble Lord, Lord Lester, aims for a fair balance and that he wants one, but I believe that the Bill, as drafted, will weaken the weaker party in the bulk of defamation cases—no level playing field, no equality of arms and no proper redress. The Bill may well help one group of people who should be helped, but only by weakening another.

I said at the beginning that these issues have concerned me for nearly three decades. I have seen some newspapers, journalists and proprietors—although by no means all of them—savage people who did not deserve it and had no equal chance of fighting their corner. The cases that tended to disturb me most in my working career, as it happens, were those involving trade union people, who I would describe as being on the progressive side of politics but with scant financial resources. They are not the rich and powerful and they are not in an equal contest. I know that your Lordships will all be able to think of cases from your experience in different walks of life that are by no means less important than the kind of examples that were drawn to my attention in my working life. So, with respect, I find it hard to recognise that what has been said, including in the opening speech, is reflected in what has come out so far in the text of this Bill. I am sure that work on it can make a real difference, but I thought it right—especially having had at least a brief conversation with the noble Lord, Lord Lester—to put my arguments in a strong way so that my view is understood.

The House, with its goal and objective—as the most reverend Primate the Archbishop of York said—to protect the civil rights of individuals, should stand up for everyone, not just for some or for those who find inequalities in the present law, but for others who also find inequalities in the law and have no realistic means of protecting themselves.