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Law Reform (Succession) Bill [H.L.]

Report received.

Private International Law (Miscellaneous Provisions) Bill [H.L.]

3.13 p.m.

Report received.

Clause 9 [Purpose of Part III]:

Lord Brightman moved Amendment No. 1:

Page 4, line 16, leave out subsections (1) and (2) and insert:
("(1) The rules in this Part apply for choosing the law (in this Part referred to as "the applicable law") to be used for determining issues relating to tort or (for the purposes of the law of Scotland) delict.
(1A) The characterisation for the purposes of private international law of issues arising in a claim as issues relating to tort or delict is a matter for the courts of the forum.
(2) The rules in this Part do not apply in relation to issues arising in any claim excluded from the operation of this Part by section 13 below.").

The noble and learned Lord said: My Lords, the purpose of this amendment is to clarify Clause 9(1) of the Bill. Part III of the Bill deals with litigation in one of the three jurisdictions of the United Kingdom concerning a wrong occurring outside that jurisdiction, the wrong being non-contractual—what English law calls a tort and Scots law calls a delict. In other words, the scenario with which the Bill is concerned is an action in England, Wales, Scotland or Northern Ireland about a wrong occurring outside that jurisdiction which, if occurring within, would be classified as a tort or delict.

There are clearly two steps involved in the litigation. The first step is to decide whether the issue relates to what we call a tort or delict. The expression commonly used is "characterised" as a tort or delict. The second question is to decide what law is to be applied to that issue once it has been so characterised.

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Clause 9(1) of the Bill, in its present form, addresses only the second step. The first step is assumed but not addressed. To clarify the position, my amendment splits subsection (1) into two parts. The new subsection (1) defines step two: the selection of the law to be applied to the trial of the issue. Although that is step two, it is placed first because that is what Part III of the Bill is all about. Subsection (1A) addresses step one—the preliminary question which has to be answered—as to whether the issue is to be characterised as an issue relating to tort or delict. That is to be a matter for decision by what is called the court of the forum, which by definition in Clause 9(6) means the court sitting in England or Wales, Scotland, or Northern Ireland.

The Public Bill Committee agreed that some such clarification of Clause 9(1) was desirable but the amendment then proposed was not moved. I am indebted to my noble and learned friend the Lord Chancellor for the services of his draftsman in getting the necessary amendment into a proper form. I beg to move.

The Lord Chancellor (Lord Mackay of Clashfern): My Lords, as will be apparent from the introduction by my noble and learned friend, I am very happy with the clarification of Clause 9 of the Bill. I am very grateful to my noble and learned friend for moving the amendment, for the work he did as chairman of the Committee, and to the Members of the Committee who devoted much time to study of the problem. Therefore, I hope that your Lordships will accept the amendment.

On Question, amendment agreed to.

Clause 13 [Exclusion of defamation claims from Part III]:

Lord Lester of Herne Hill moved Amendment No. 2:

Leave out Clause 13 and insert the following new clause:

("Exclusion of Defamation and related claims from Part III

.—(1) Nothing in this Part applies to affect the determination of issues arising in any claim to which subsection (2) applies.
(2) This section applies to any claim which is characterised by the courts of the forum for the purposes of private international law as relating to tort or delict and which is—
(a) a claim under the law of any part of the United Kingdom for libel, slander, slander of title, slander of goods or other malicious falsehood and any claim under the law of Scotland for verbal injury; or
(b) a claim under the law of any other country corresponding to or otherwise in the nature of a claim mentioned in paragraph (a) above; or
(c) a claim which is otherwise based upon a law for the protection of reputation, self-esteem, privacy or confidentiality, whether of an individual or group of individuals, or of a juristic person or of an organ of government.").

The noble Lord said: My Lords, I am glad that at Committee stage the noble and learned Lord the Lord Chancellor in effect accepted the Law Commission's observation in paragraph 3.31 of its report that,

    "given the public interest in free speech and in the proper functioning of public institutions, it is not desirable that those who make statements in this country should have their freedom of expression circumscribed by the application of foreign law".

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The noble and learned Lord the Lord Chancellor accepted that observation in relation to defamation law, and Clause 13 has been inserted into the Bill in its present form in Committee so that defamation claims based on foreign laws can be brought in our courts only if they would be actionable under our own laws as well.

In my view there are still two respects in which Clause 13 remains unsatisfactory. In the first place, the definition of "defamation claims" in Clause 13(2), purely by reference to a list of English torts such as libel and slander, and the Scots law of verbal injury, leaves a large degree of unnecessary vagueness and uncertainty. That is one main reason for my seeking to add paragraph (c) to Clause 13(2); in order to create greater certainty by making clear that where a claim is based on a law which does not correspond to the list of English and Scottish torts and delicts, but which is in substance a claim,

    "based upon a law for the protection of reputation, self esteem ... whether of an individual or group of individuals, or of a juristic person or of an organ of government",

it will be excluded from Part III.

Perhaps I may give an example to explain what I mean. Let us suppose that under the law of Ruritania it is a civil wrong to bring the president or government into disrepute by undermining public confidence in their capacity to govern. A law of that kind is not unknown in some parts of Asia, Africa or the Caribbean. A claim based on such a law would not necessarily be in the nature of a claim of the kind mentioned in Clause 13(2) (a). But it would certainly come within the wider words of my proposed paragraph (c).

As I understand the position, the noble and learned Lord the Lord Chancellor accepts that foreign torts of this kind should be within Clause 13. The first object of my amendment is to put the matter beyond doubt for the sake of achieving legal certainty. Knowing the controversial nature of the decision of Pepper v. Hart, I do not think it satisfactory for the matter to be dealt with only by a statement in the House which can then be placed before the courts. With respect, in my view it should be on the face of the Bill.

The second main aim of my amendment is to cover foreign laws of privacy of a kind unrecognised by common law or statute law in this country. I am glad to be able to report, speaking from this Bench, that, because of the dangers which such a law would create for free speech and a free press, my party recently decided at its Scarborough conference that it was not in favour of enacting a statute creating a new tort of media intrusion on privacy of the kind previously suggested by the Government. The Liberal Democrats preferred to press for the incorporation of the European Convention on Human Rights into UK law and to leave it to the courts to develop appropriate remedies for invasions of personal privacy on a case-by-case basis. According to press reports last Friday, it seems that the Government too have, happily, now decided not to create a general tort of privacy in this country.

The Law Commission in its report drew particular attention to invasion of privacy as a prime example of a foreign tort not recognised in this country. It emphasised that it was not desirable that British broadcasters and

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newspapers should be held liable for such a foreign tort of privacy. I submit that the Law Commission was perfectly right. Surely it is even more objectionable to allow plaintiffs to sue in our courts on the basis of a foreign law of privacy, without a public interest defence, than to allow them to sue on the basis of a foreign libel law less liberal than our own law. A foreign privacy law which forbids the publication of truthful statements and lacks any public interest defence surely poses a greater threat to free expression than does a foreign libel law, especially where prior restraint on free expression may be obtained through interlocutory privacy injunctions.

Perhaps I may give the example of French law. For the purpose of this debate I consulted M. Roger Errera, a member of the French Conseil d'Etat, who chaired the committee of inquiry on the press and the judiciary appointed by the French Minister of Justice, in 1984, and who gave evidence on privacy to Sir David Calcutt's committee. I can briefly summarise the position as follows. French defamation law is civil and criminal in nature. French defamation law is less intrusive on free speech and freedom of the press than is English defamation law. That is because the newspaper has the defence of publication in good faith and also because damages awards are modest compared with English jury awards. However, the limited nature of French defamation law is complemented by French privacy law, even though the two are legally distinct.

French privacy law has developed to protect not only honour and reputation but also the individual's personality. Unlike defamation law, any interference with privacy gives rise to a right to a remedy. Good faith is no defence, nor is the truth of what is published and there is no developed public interest defence in France. The civil courts there have very broad powers not only to award damages for invasions of privacy, but also to order preventive measures, including interlocutory injunctions to restrain invasions. The French civil code was recently amended, in 1993, so that damages may be awarded and injunctions granted against newspapers for breaching the civil right to respect for the presumption of innocence, pending the determination of a pending criminal case. The French courts may also order the press to publish corrective statements drafted by the courts.

Let us then suppose that a British broadcaster or newspaper publishes news and comment which is heard or read in France as well as in this country, and which breaches the French civil law of privacy or of the presumption of innocence or both. Suppose that the news and comment are accurate. They are published in good faith, their publication is in what we would regard as the public interest. As I have explained, these defences are not available in French law. The alleged victim could not invoke French penal law or other public law in our courts under the Bill. But under Clause 13 as it now stands, he or she could sue the broadcaster or the newspaper not only in the French courts for what is wrongful civil and criminal misconduct under French law, but the plaintiff could also sue in our courts for damages and injunctions on the basis of French civil law, even though that conduct is not wrongful under English or Scots civil law.

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As regards the claim based on interference with the presumption of innocence, I recognise that our courts might perhaps refuse to apply the French law on the ground that, although civil in nature under French law, in substance it should be regarded as penal in nature in this country. But it is not clear that that would be so and in any event what is clear is that our courts could not do that in relation to a privacy claim, which is plainly civil in nature.

Under the Bill as it stands, the only safeguard for free speech and a free press based in this country would be the power to disapply French privacy law preserved by Clause 14(3) on the ground that it would conflict with British principles of public policy—a power which our courts would understandably be reluctant to exercise.

Because the definition of defamation-related claims excluded from Part III, in Clause 13(2), is so narrowly and technically worded, it would not cover a claim based on these foreign torts, even though—as I have sought to explain—they would unnecessarily interfere with the right to free expression. An alleged victim could therefore use our courts to obtain a remedy for conduct not regarded as unlawful under our own legal system and in circumstances which would severely chill free expression.

That was the very mischief which the noble and learned Lord the Lord Chancellor wisely—if I may say so respectfully—recognised in Committee as needing to be dealt with in relation to defamation claims. It is the very same mischief because a foreign privacy law is at least as capable as a foreign libel law of unnecessarily chilling free speech and a free press. Indeed, I would say that it is much more capable of chilling free speech in the absence of a public interest defence and given the power to obtain prior restraint on publication in the form of interlocutory privacy injunctions.

It may be said that, in the context of the European Economic Area, plaintiffs may, under the Brussels and Lugano Conventions, readily enforce foreign judgments based on foreign torts in this country. That is true. But it seems to me to be one thing to facilitate the enforcement of foreign judgments and quite another to allow our own courts to be used to adjudicate and grant remedies in circumstances which I have described. Moreover, many examples of foreign torts menacing press freedom come from countries beyond the European Economic Area, and therefore beyond the Brussels and Lugano Conventions.

For example, I happened to be in New Delhi in January in court to hear an application by the so-called "Bandit Queen", Phoolan Devi, for an injunction to prevent Channel 4 from exhibiting a film about her life, not only in India but also in the UK and, indeed, world-wide. Her claim was founded partly upon a privacy tort recently developed out of the Indian constitution by the Supreme Court of India. Happily, the case was settled amicably. But if this Bill is enacted in its present form, then it would become possible for another "Bandit Queen" to sue here on an Indian tort of privacy unknown to our law, to prevent a film from being shown here.

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In one respect, I recognise that my amendment may be too wide. That is in referring to confidentiality. There are well-developed remedies under our law for breaches of confidence in commercial and other areas of life. It would therefore seem unnecessary and undesirable to refer to confidentiality and I would readily accept that that should be omitted from my amendment. However, that apart, I very much hope that the amendment will commend itself to the House. I beg to move.

3.30 p.m.

Lord Irvine of Lairg: My Lords, the principle of Part III of the Bill is that the double actionability rule should be abolished and that foreign law should be applied to foreign torts. The Special Public Bill Committee heard a broad range of evidence and decided to exclude defamation from the general rule. That had been the view of the Law Commission, and the Committee responded positively to representations it received from the press.

I do not accept that a similar case can be made—certainly, it was not made to the Committee—for excluding foreign breach of confidence or privacy claims. If the noble Lord will forgive me for saying so, it is unduly insular to suppose that foreign laws protecting rights of privacy are beyond the pale. Out of caution I should perhaps declare an interest in these matters as a member of the appointments commission which appoints members to the Press Complaints Commission. The Press Complaints Commission represents a system of self-regulation of the press with a majority of lay over press members.

My position is that I remain a supporter of self-regulation of the press, provided that it remains effective and the public can have confidence in it. At present I am unconvinced that we require a statutory law of privacy in this country. On the other hand, I certainly do not regard a foreign law of privacy as untoward and therefore one that we should not enforce in appropriate cases in this country. Therefore I oppose the amendment.

I have confidence that the courts will have no difficulty in developing the public policy exception in Clause 14(3); I do not agree with the noble Lord that they would show any reluctance to do so. I, too, am confident that the courts would take into account freedom of expression as a value to be protected as a matter of public policy in any privacy based claim from abroad which seemed to imperil freedom of expression in this country.

Further, Clause 13(2) does not call for the amendment that the noble Lord proposes. I am well content for the courts to be allowed to develop, by decision, the existing words in Clause 13(2) (b),

    "any claim under the law of any other country corresponding to or otherwise in the nature of a claim",

defined in Clause 13(2) (a).

In my view also, foreign torts protecting reputation and self-esteem would be caught by the language of Clause 13(2) (b), and there could be a danger in attempting an exhaustive list lest it be argued subsequently that any claim not expressly included must

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have been intended to be excluded. For my part, the broad language of the existing Clause 13(2) is preferable. For these reasons I oppose the amendment.

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