I admit to being surprised that the Joint Committee should have taken China into consideration, and I apologise to those who feel that we were too constricted in our view. I have never been called a little Englander, nor even a little Irelander, so I apologise. I understand the point that my noble friend Lord Lester, was making, but I have to be honest and say that this is complicated enough without worrying what other countries are going to use as an excuse if and when we come to a judgment. That is not meant to be in any sense a little Englander type of comment.

At the end of the day, people’s reputations are on the line. We have already established that the cost of trying to get behind anonymity or lack of attribution goes against one of the principles of the work that the Joint Committee did, the work of which is shared by Members on all sides of this Committee. I thank my noble friend for his response and I beg leave to withdraw my amendment.

Amendment 30 withdrawn.

Clause 6 : Peer-reviewed statement in scientific or academic journal etc

Amendment 31

Moved by Lord Hunt of Chesterton

31: Clause 6, page 4, line 14, after “journal” insert “or on a website edited and controlled by a chartered professional or learned body (a “recognised website”)”

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Lord Hunt of Chesterton: My Lords, that was the first time I have moved an amendment, so I hope you will excuse me.

This is an important amendment in an important Bill, particularly for scientists, engineers, doctors and writers, who approached me to take up the issue, particularly regarding the internet when used in a rather specialised way by these organisations. I have met many engineering and science institutions, whose membership comes to around 450,000 people, and on whose behalf they speak. I was also contacted by the coalition of Sense About Science, the Penn Club and the Index on Censorship.

This Bill offers legal protection, and in this clause there is emphasis on the peer-review process, which as a scientist and former editor I am very familiar with. I am also familiar with the fact that many scientists and engineers who are involved in public debate use the internet. The internet that they use is regulated by the institutions involved. We are talking about a much narrower brief; I do not know whether these people count as “little people” as mentioned by the noble Lord, Lord Phillips, but they are pretty important people and there are quite a lot of them.

This clause refers to the words “scientific or academic”, and I understand from earlier discussions that this includes engineers, medics and technologists. The amendment proposes that the privilege enjoyed by peer-reviewed articles should be extended to websites controlled and edited by chartered organisations and professional bodies. It attempts to build upon the current system, which is practical and financially supported.

The Institution of Civil Engineers, of which I am an honorary fellow, having studied engineering as a student, and the Institution of Structural Engineers have highly regulated websites on which people can make comments about, for example, a structure such as a bridge or some machinery. Those comments are then edited very vigorously, they talk to their lawyers so that they will not be defamatory or cause any difficulty and then they put the comments on their website, so it is a highly controlled system. They would welcome a clause along these lines, because they would then spend less time talking with their learned friends and would perhaps save money. They feel that this clause would put what they already do into practice or into a legal framework, which is a good way to proceed.

Some noble Lords have said in discussions this afternoon that we do not need this because it happens already. This is an example where things are happening already but they could work better and more effectively. Some people wrote to me from some institutions to say, “We’re not doing this very much; this would enable us to provide a better service to our members, who are very worried about a slightly increasingly litigious world”.

I will go through the clauses and will read each clause, as that will make it easier to understand. Clause 1 as amended would read:

“The publication of a statement in a scientific or academic journal or on a website edited and controlled by a chartered professional or learned body (a ‘recognised website’) is privileged if the following conditions are met”.

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In a sense, some of the work has been done for this Parliament by the Privy Council procedure of providing chartering to professional bodies. Some of these professional bodies, of course, may be in considerable conflict with other professional bodies. The chiropractors, for example, are now a chartered body, and not all other scientific bodies are entirely in agreement with what they do. Nevertheless, this could still be within that framework.

The first condition, as we read this,

“is that the statement relates to a scientific or academic matter”.

“Scientific”, as I commented, includes engineering, technological and medical matters. If my amendments were accepted, subsection (3) would read:

“The second condition is that before the statement was published in the journal or on the recognised website an independent review of the statement’s scientific or academic merit was carried out by … the editor of the journal or recognised website, and … one or more persons with expertise in the scientific or academic matter concerned”.

If my amendments were accepted, subsection (4) would read:

“Where the publication of a statement in a scientific or academic journal or on the recognised website is privileged by virtue of subsection (1), the publication in the same journal or recognised website … is also privileged if”—

and then there are three conditions, the third of which is added by my amendment—

“the assessment was written by one or more of the persons who carried out the independent review of the statement; and … the assessment was written in the course of that review”—


“the assessment was written by one or more persons with expertise in the scientific or academic matter concerned and was approved by the editor of the journal or recognised website”.

As I understand it from these institutions, this is all quite a rigorous process. Subsections (5) to (8) are also modified in that way.

This amendment is in the spirit of the clause, but it would extend it and would certainly be very much welcomed by these institutions.

Lord May of Oxford: I agree with all of this. It is very good and I want to do something, if I am allowed, that is probably improper. There are two issues in Clause 6 that I would like to have clarified, but I did not see the need to put down an amendment merely to raise the issue. Clause 6(6) says:

“A publication is not privileged by virtue of this section if it is shown to be made with malice”.

Am I correct that the word “malice” has a fairly explicit legal meaning? Anybody familiar with the academic world will know—

Noble Lords: Oh!

Lord May of Oxford: I can give the Committee many examples. One that does not reflect directly on me was during the GM controversy, when there was an experiment by Pusztai that claimed to show that GM foods killed rats. The Royal Society did a review of it that said that these experiments were so flawed,

“in many aspects of design, execution and analysis”,

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that no conclusion could possibly be drawn. I have a sneaking sympathy for poor Mr Pusztai. He was a sad but well intentioned little man who did silly things. I am sure that he felt that that quote was malicious. I would like to be reassured that there is a legal sense to “malice” that means “consciously unkind”, as it were. If these amendments had been in place, Nature would have saved £1.5 million fighting a simple case.

When Clause 6 says,

“relates to a scientific or academic matter”,

I take it that that means that, by definition, everything in the journals is of a scientific or academic matter. Often they will be opinionated editorials about issues of interest to the academic community. I thought that I would raise those issues rather than trying to grab someone afterwards.

Lord Mawhinney: My Lords, I support the amendments of the noble Lord, Lord Hunt of Chesterton. Were I surrounded by the Joint Committee, it would be in agreement with my wanting to do so. I say to the noble Lord and, indeed, to my noble friend that the definition of “recognised” may need to be examined a little further and tightened just a little more, not least bearing in mind the point that the noble Lord, Lord May, has just made, but that is relatively straightforward. The principle seems to be a good one, in line with what we in the committee produced, and I commend the noble Lord.

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

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

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

I expressed my concerns to him about that as an idea, and I summarise them in this fashion: while I agree that there needs to be the sort of debate among

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

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

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

If another institution, or a set of institutions—for example, the institutions identified by these amendments —is willing to take on the responsibility of that level of peer review before it allows these statements to be published, I am entirely in agreement. If that generates a controversial debate, we should consider whether that debate started by a peer-reviewed assessment should attract a level of privilege. I do not know whether other Members of the Committee will share my view that this is a really interesting idea but that it needs a lot more work. I am not in a position to do that significant amount of work but the one question that I ask the noble Lord, Lord Hunt, is: what is the equivalent of this addition of peer review? We on

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these Benches could not support a view on an issue of controversy, which potentially could be defamatory, being exercised in a privileged environment just because it was a view held among technically gifted people, scientists or academics. I think that it could be just as damaging.

Lord Mawhinney: Listening carefully to what the noble Lord, Lord Browne, has said, would it be fair to summarise that he is saying that further work needs to be done on the definition of the word “recognised”?

Lord Browne of Ladyton: With respect to the noble Lord—I am always anxious to agree with him because of the role that he played in relation to the formation of this area of policy—it may be my fault, although I am not sure whether it is my accent or the content of what I am saying. Perhaps I have not explained myself well enough.

The noble Lord’s summary is part of my concern, although I have a broader concern. In the light of the hour and the amount of time that we have already spent on this matter, and the fact that I suspect that we will find time to get back to this in more detail—perhaps offline, as it were, from the Committee—I will not lay out all the detail of my concerns about this. I have a number of them and that is one of them. My fundamental concern is that there is a hurdle to overcome before publication in the clauses as drafted: peer review. I am not entirely sure that, if we expand it into statements that are published on websites belonging to those other institutions, those statements will have the same imprimatur of peer review before they are published. If we could find a way to do that, I would be happy to support the proposal but it is complicated.

7.15 pm

Lord Bew: My Lords, I thank the noble Lord, Lord Hunt of Chesterton, for putting forward this amendment, and I am very sympathetic to his efforts. However, the noble Lord, Lord Browne of Ladyton, has asked one question and I will ask two questions in the same vein. This is just for reassurance, because I think that we understand that there could be great benefit from this amendment, and a powerful case has been made.

First, the noble Lord knows this world and the world of academic journals. Is he sure that the person editing a website for a chartered professional association is necessarily of the same calibre as the person editing a peer-reviewed academic journal? The second question is related, and perhaps more profound: is he sure that there is the same requirement for qualified privilege as there is in certain areas for academic journals, where there clearly is a severe chilling effect? The questions are in the same vein as those posed by the noble Lord, Lord Browne, but are in the vein of a very sympathetic interest in the proposal that the noble Lord has put to us. He is quite right to say that he is speaking entirely in the spirit of Clause 6. I would like to have a little more reflection on the detail.

Lord May of Oxford: It is perhaps a little more complicated than some people think. I am not sure that people understand that some journals are purely

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electronic. Some of the major journals—PLOS ONE, for example—are online, while most of the conventional, older journals offer an option to publish additional material electronically. More than half the journals are run by the same learned societies that the noble Lord, Lord Hunt, is talking about, so it is not a juxtaposition of things that you can physically hold up and others. It is a seamless continuum, and the spirit of this definitely needs some refining to make central what has been said so clearly: that the issue is peer review.

Lord Mawhinney: My Lords, I will chip in again. When I responded to the amendment from the noble Lord, Lord Hunt of Chesterton, I said that it was subject to further work being done on the definition of recognition. I know that the noble Lord, Lord Browne, said that he was talking about something different, but I think that he and I are basically saying the same thing. In light of this further conversation, I say to the noble Lord, Lord Hunt, that if his amendment is saying that the existing people become the judge and jury for their own individual production, then I am not sure that that is in keeping with the spirit of what the Joint Committee said.

A redefinition, or indeed a definition, of “recognised” has to have some element of other people endorsing the view of those who want to produce. I encapsulated that in referring to a clearer definition of “recognition”. The noble Lord, Lord Browne, and I are probably saying much the same thing, and I hope that those who spoke to the noble Lord, Lord Hunt, recognise that being in a learned society is not in itself sufficient. There has got to be further definition of the word “recognition”. However, subject to that, which does not seem to me to be an insurmountable problem, I still welcome the amendment.

Lord Phillips of Sudbury: My Lords, I strongly support this group of amendments in the name of the noble Lord, Lord Hunt. I am sure that all the academics at the University of Essex, of which I am chancellor, would be cheering on their stools if they could hear this.

I just have one question for my noble friend Lord McNally, which may seem rather an odd one. This is all built around scientific or academic journals. That seems an odd pairing to me because I would have thought that most scientific journals were academic journals, although not vice versa. If there is to be a careful consideration of the terminology in the amendment tabled by the noble Lord, Lord Hunt, which I think is necessary and indeed essential, the Minister might consider whether or not “scientific or academic” is the happiest wording, as if one excluded the other.

Lord McNally: My Lords, the more that I hear about academia from the noble Lord, Lord May, and about the law from other Members, I am glad that I am in such a straightforward profession as politics.

This debate, again, has been extremely helpful. I worry, as I think a number of contributors have, that if the concept of “journals” includes those online, there is a question of how and where it stops. That is why we

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have tried to consult on this issue. It is interesting that when the legislation was first put forward by my noble friend Lord Lester, he did not make any provision for the protection of scientific journals, but particular concerns were expressed about the impact of the threat of libel proceedings on scientific and academic debate. We therefore believe that the addition to the general protections offered by the Bill of a specific defence of peer-reviewed material is appropriate. Other aspects of the Bill and work associated with it, such as the serious harm test and actions on cost protection, will also help to support free speech in these areas.

Let us be clear: right from the start, I wanted to provide protection for genuine academic and scientific debate. I have to say to my noble friend Lord Phillips that “academic and scientific” is a term that is generally understood—it does not mean the Beano. People know one when they see one. Within that, there is also the important context that we are looking for genuine peer review, which, again, is understood. I worry, as I think the noble Lord, Lord Bew, does—I will also be interested in the response from the noble Lord, Lord Hunt, to the specific questions—that we must not push the envelope too far on this, otherwise we will run into some of the problems that the noble Lord, Lord Browne, raised. We are right to be cautious.

As I say, the issue featured prominently in our discussions with the scientific community. We also held discussions with the editors of all the key journals to ensure that appropriate conditions were attached, so that the clause applied only where responsible peer-review process was used. We shared the relevant aspect of the clause with those editors to confirm that this was achieved.

Amendment 31 would extend the defence to peer-reviewed material on,

“a website edited and controlled by a chartered professional or learned body”.

We are concerned that this would make the defence too widely available. We believe that it is important to ensure that only bona fide publications with appropriate procedures are given the protection of the new defence. That is why we have focused the clause on scientific and academic journals, where there is a well established process for peer review. I can confirm that the existing clause would cover peer-reviewed material that was published by such a journal in an electronic form. However, a potentially wide range of bodies may fall within the categories proposed by the noble Lord, and we are concerned that this would extend the defence into areas where peer review is not a common practice. That may lead to the defence being available in instances where it is more likely that the peer-review process will not have been applied sufficiently robustly.

The other substantive amendment in this group, Amendment 35, would privilege any assessment of a peer-reviewed statement’s scientific or academic merit if it was written by one or more persons with expertise in the scientific or academic matter concerned and was approved by the editor of the journal or website. This would appear to be aimed at extending the defence to statements such as replies to or commentaries on peer-reviewed material without the requirement that

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they themselves be peer-reviewed. Again, we consider that this would extend the scope of the defence too widely.

I was asked a couple of specific questions. The noble Lord, Lord May, was worried about the meaning of “malice”. We would expect courts to use the same test as applied in other forms of qualified privilege; that is, a defendant would forfeit the defence if they could be shown to have acted with ill will or improper motive. On the points made by my noble friends Lord Phillips and Lord Lucas about the term “scientific and academic journal”, we believe that the term is widely understood and that a definition of “journal” is unnecessary.

I think that I have covered the points raised; indeed, I think that some of the most pertinent questions were addressed to the noble Lord, Lord Hunt, who may take the opportunity to make a brief reply. However, as the noble Lords, Lord Browne and Lord Mawhinney, invited us to do, we will look at this matter. As I said in discussion with the noble Lord, Lord May, I genuinely want to get this legislation right for the scientific and academic community; indeed, it is one of the most important challenges for the legislation. I am certainly willing to examine whether we have got our definitions and our scope exactly right, and I welcome the debate that the noble Lord has provoked with his amendment. I ask him to withdraw it.

Lord Hunt of Chesterton: I thank noble Lords for their very constructive response. I want to emphasise the respective memberships of the institutions which wrote to me. The Institution of Civil Engineers has 80,000 members; the Institute of Physics has 45,000 members; the Institution of Chemical Engineers has 35,000 members; the Institution of Mechanical Engineers has 100,000 members; the Institution of Engineering and Technology has 150,000 members; the Royal College

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of Physicians has 30,000 members; and the Institution of Agricultural Engineers has not so many.

I have published papers in the scientific literature and for those institutions, and I can tell your Lordships that the standard of refereeing in most of our engineering institutions is extremely high. There are excellent scientific journals, but there are an awful lot of scientific journals with peer review in them that are pretty poor. That is why I was surprised that the clause as originally drafted set no quality level for the journals; no quality level has been supplied. It is not as if these are journals of institutions. The quality level that I want to introduce for the websites—“chartered”—is a great deal higher than is the case for the journals.

Lord May of Oxford: Some of the journals.

Lord Hunt of Chesterton: Some—I apologise to the noble Lord, Lord May.

This is an extremely rigorous process, so I do not recognise the notion of dilution suggested by the noble Lord, Lord McNally. This is not a free-for-all. If one civil engineer writes a letter to a journal about, let us say, a bridge, it is an extremely serious matter. This is now done regularly without many court cases, but it would be better if it were in the legal framework. We would be building on an established tradition.

However, time has been running on. I am appreciative of the Minister’s constructive response. I should like to talk to the drafters, and I hope that this matter will come back. I beg leave to withdraw the amendment.

Amendment 31 withdrawn.

Amendments 32 to 38 not moved.

Clause 6 agreed.

Committee adjourned at 7.30 pm.