Mr. Waterson: I beg to move amendment No. 245, in
clause 63, page 40, line 11, leave out 'absolutely privileged' and insert 'subject to qualified privilege'.
We now get to the meat of today's debate. As we are talking about defamation, I will take this opportunity to put right a prima facie defamatory remark that was made about me in my absence by the Minister last week. He had the temerity to suggest that I might be a Manchester United supporter, the sub-plot being that because I am some sort of effete southerner I would be a natural supporter of Manchester United. I am not a southerner—and as for effete, I will leave that to you to decide, Mr. Griffiths. I am, of course, an enthusiastic supporter of Eastbourne Borough football club, which might not have made it on to the radar screen of many Committee members, but has a great future ahead of it.
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The amendment concerns the sole point that I want to raise on the clause. I do not propose to provoke a clause stand part debate, because it is eminently sensible that the regulator should publish reports and that they should be as wide-ranging, detailed and informative as possible. As is clear from the amendment, I am concerned about whether we should simply put the stamp of absolute privilege on anything contained in such a report.
To anticipate the possible killer point in the Under-Secretary's reply, I must add that a mere glance at section 103 of the Pensions Act 1995 tells us, albeit in a form slightly different from the provision before us, that:
''For the purposes of the law of defamation, the publication of any matter by the Authority shall be absolutely privileged.''
Far be it for me to claim that the Conservatives have a monopoly of wisdom on those matters. However, I do not think that we as a Committee should simply translate from one piece of legislation to another a measure as important as this without at least giving it proper consideration.
Hon. Members will know that there is a major distinction between absolute and qualified privilege. It is a shame that my hon. Friend the Member for Tatton (Mr. Osborne) is temporarily absent, because his predecessor gave his name to one of the major recent cases on privilege for parliamentary proceedings. Fortunately that case is not relevant to the point that I am arguing—
Mr. Pond: Oh, do tell us about it.
Mr. Waterson: The Under-Secretary eggs me on, but we have a lot to get through this morning—and given the muffled nature of his egging on, I will move rapidly to my next point before he falls off his chair.
For the benefit of hon. Members who are not lawyers, and have not sued or been sued for defamation, I should explain that in one of the leading textbooks on the subject, Peter Carter-Ruck states that
''absolute privilege is a complete bar to an action for defamation no matter how false or malicious the words complained of may be''
''it is in the public interest that people should be able to speak and write with complete freedom unhampered by any underlying fear, real or imaginary, that subsequently they may have to answer for what they have said.''
He also says that the point about absolute privilege is that, as the term suggests, it is absolute, and
''it is not destroyed by malice.''
I will address the relevance of the term ''malice'' shortly.
Carter-Ruck also makes the point that areas of activity in which absolute privilege applies are, rightly,
''strictly defined and will not be readily extended.''
It applies to parliamentary and judicial proceedings, to reports of both such proceedings and to certain other defined categories. As I have said, there is a leading recent case concerning parliamentary proceedings, which need not concern us.
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Certain other instances are clearly set out in statute. For example, the Parliamentary Commissioner Act 1967 sets out that the holder of that post should enjoy absolute privilege when making reports to the Houses of Parliament; the same goes for the local administration and health service commissioners and the Monopolies Commission—as the Competition Commission was called when Carter-Ruck wrote the book. There is a fairly significant list of bodies that are in a position to issue reports that enjoy absolute privilege.
However, Carter-Ruck also states:
''Even those modern creatures of statute such as the ombudsmen and the Monopolies Commission . . . are included as a matter of public policy because their functions are in some degree akin to judicial functions.''
Is the kind of report referred to in clause 63 likely to be comparable to a judicial function? No, because they will simply be reports of the sorts of cases that the regulator has been dealing with. Will the Under-Secretary be a little more forthcoming than the clause about what kind of useful things will usually appear in those reports? There is no basis for arguing for absolute privilege on the strength of the function being quasi-judicial, as described by Carter-Ruck.
Why not apply qualified privilege? There is an onus on the people who are arguing for absolute privilege to show that qualified privilege will not be sufficient. Qualified privilege is quite a hefty defence against a claim for defamation. As Carter-Ruck says, where there is qualified privilege,
''an action will not succeed unless the plaintiff can prove that in publishing the words complained of the defendant was actuated by express malice, that is to say by spite or ill-will or some other dominant improper motive . . . Malice defeats a defence of qualified privilege; it is wholly irrelevant to absolute privilege.''
Carter-Ruck sets out some of the statutory and other circumstances in which statements, reports, proceedings and reports of proceedings are subject not to absolute privilege but to qualified privilege. The big distinguishing factor between the two forms of privilege is malice. He sets out some examples of statements made in certain classes of report that attract only qualified privilege. I shall not weary the Committee with them, but it is clear that the situation has been examined on a case-by-case basis.
The Defamation Acts of 1952 and 1996 set out clear rules about broadcasts, newspapers and so on. Following the Neill committee in 1991, the law was changed and expanded. As long as a body gives a fair and accurate report of proceedings—providing, for example, a fair and accurate copy of a register or an extract of a register—it happily comes under the rules relating to qualified privilege.
That brings me to the issue of malice. Carter-Ruck says:
''Express malice may be defined as a desire to injure the person defamed, or any other wrong or improper motive, which is the dominant motive for the publication.''
As he says, malice must be the dominant motive for publication. Why on earth should we underwrite a situation in which the new regulator can put into the public domain a report that is, prima facie, defamatory
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to an individual, and for which the dominant motive is malice? Why did we underwrite such a situation in relation to OPRA in 1995?
Vera Baird (Redcar) (Lab): Is it not better for the regulator to be absolutely protected against the sort of action in which the late Robert Maxwell used to specialise? When anything was to be published, he would heave a writ at it. A determination as to whether publication would be malicious is not made for two or three years, until the matter comes to court. In the meantime, publication is held up. I am sure that the hon. Gentleman is satisfied that deliberately malicious publication by the regulator would be covered by the offence of misfeasance in a public office anyway, so he has nothing to worry about.
Mr. Waterson: I am grateful for that reassurance from a QC. I would hope that the regulator would not be intimidated by the kind of tactics in which, as the hon. and learned Lady rightly points out, the late Robert Maxwell was a specialist. That consideration should therefore not apply. As for misfeasance, I am sure that there ought to be other penalties for someone in a public office of that kind who issues such a report. However, to come back to the main thread of my argument, we cannot possibly be talking about a serious, focused new regulator even remotely considering putting something into the public domain for which the dominant motive is malice.
Once qualified privilege is established—we can bring that about in an instant by amending the clause—the onus will lie on the plaintiff to prove express malice. That is quite a serious burden of proof. To put hon. Members' minds at rest, I can tell them that mere negligence or carelessness as to the truth of a statement are irrelevant. As Carter-Ruck said:
''what the law requires is not that the privilege should be used carefully but that it should be used honestly'',
and he referred to the case of Horrocks v. Lowe.
I am arguing that we should not simply put a chunk of the 1995 legislation into the Bill unprobed. It is possible to envisage circumstances in which serious damage is done by a report from the regulator. I see no particular reason why the kind of person who might suffer significantly if such a report were wrong should be barred from taking any action simply because we attach absolute privilege to the report.
I do not think that there is any argument that says that there is a quasi-judicial function involved. There is simply a totally reasonable requirement, not that the regulator should make sure that the report is right and accurate—that does not cause a problem with qualified privilege—but that there should be no malice involved. Malice should not be the predominant motive in putting such a report into the public domain.
Malcolm Wicks: I thank the hon. Gentleman for his amendment, which I do not consider malicious. It would qualify the regulator's absolute privilege when publishing reports of cases. As he anticipated, I must tell him that the purpose of the absolute privilege is to ensure that when the regulator judges it appropriate—
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for example, in the interests of schemes or their administrators—it may publish reports of certain cases. Ensuring the regulator's legal privilege in that way means that it will not be prevented from publishing reports out of fear of legal claims against it. Publishing reports may also provide a degree of accountability, as they will evidence the way in which the regulator has fulfilled its functions in response to specific cases. The publishing of reports has proved a useful tool for OPRA, which enjoys an absolute privilege when publishing such reports, and that tool was provided, as the hon. Gentleman said, by section 103 of the now famous Pensions Act 1995.
The hon. Gentleman will be glad to hear—I am pleased to see that he is sitting down at this moment—that I accept his amendment in principle. However, the nature of the qualification should be detailed in the Bill. I hope that I am encompassing the hon. Gentleman's concerns if I say that the Bill should specify that the publication of any matter will be privileged unless the publication is shown to have been undertaken with malice. That will ensure that the regulator is not deterred from publishing reports so long as it does so in good faith. If the hon. Gentleman is willing to accept that, I shall table an amendment along those lines on Report.