The other main issue of concern to the noble Lord, Lord Collins, and others is that of campaigning by a local Healthwatch. I am afraid that there has been a considerable amount of unnecessary misunderstanding on this point. I am particularly sorry that the Government’s good faith on our assurances to the House should be called into question. To go back to the beginning, Healthwatch is the new consumer champion for health and social care. This gives it a major role in gathering views in the locality, building the evidence and, from that evidence, formulating reports and recommendations that will improve services and the quality of care. In doing this, it would not be in anybody’s interests not to enable local Healthwatch organisations to speak out. They will be able to speak out, and they will be able to campaign. Specifically, and typically, they will be able to campaign for changes in services in their own localities. However, there might be an issue of regional or national relevance on which they wished to make their voice heard. That would be fine as well.
Noble Lords and others have read Regulation 36 and have concluded that it is incomprehensible or unworkable—or, indeed, both. In fact, Regulation 36 does something very simple. In plain terms, it says that a local Healthwatch can campaign and can speak out as part and parcel of its role as the local consumer voice. In other words, it can campaign on things that are directly connected to what local people are concerned about, based, as I have said, on robust evidence, and where the changes being campaigned on are inspired and supported by local people. Such campaigns might, or might not, have a political flavour to them. To take the example given by the noble Lord, Lord Harris of Haringey, a local Healthwatch could campaign as vociferously as it liked on the reorganisation of a diabetes service. What a local Healthwatch cannot do is conduct campaigns of a political nature where such campaigns are not connected to what local people are saying or thinking, that are not evidence-based, and that do not carry a credible degree of local support.
Nor can a local Healthwatch make such campaigning its main raison d’être. Campaigning on any issue has to flow seamlessly from the local Healthwatch’s main activity, which is to act as the voice of local people and to make that voice count towards improving health and care services.
Lord Harris of Haringey: The noble Earl has been extraordinarily helpful in telling us what Regulation 36 is meant to mean. My first question is: why does it not say that, as opposed to producing a formulation? Your Lordships are used to this sort of stuff. If every noble Lord who has spoken in this debate apart from the noble Earl has found it difficult to follow, I find it difficult to see how people around the country are going to be able to interpret this with the clarity with which the noble Earl has provided us.
Secondly, the noble Earl then said what local Healthwatch organisations can do. He said that they can campaign provided it is evidence-based and draws upon the opinions of local people. Who is to decide that? Is it, for example, the local authority, which might not like the campaign that is being mounted? Is it then going to say, “Well, you are not actually speaking on behalf of the communities you claim to be”?
Earl Howe: The noble Lord’s first point is a fair one. I was coming on to address it as it is quite clear that at least part of the wording of these regulations has seemed complicated and unfathomable to many noble Lords. I have to acknowledge that that is the case.
To address the noble Lord’s other point, we are talking about the difference between being a genuine voice for local people and simply being an adjunct of a political party. Local Healthwatch organisations should not be swayed or influenced by the activities of any political party. They must act independently. The only influence that matters to them is that of local patients and the public in seeking ways to improve the quality of care for people.
In that sense, the regulations tie down a local Healthwatch no more and no less than any other social enterprise. The wording of the regulations has been constructed in a very similar manner to the wording applied to other social enterprises in regulations. Regulations 36(1) and (2), against which so many missiles have been hurled this evening, are designed simply to reflect the standard community benefit test.
Lord Collins of Highbury: My Lords, if I have read Healthwatch England’s briefing correctly, it says that social enterprises are being treated differently in this statutory instrument, particularly as regards the 50% that could be retained. Perhaps the Minister could clarify that.
Earl Howe: I am surprised to hear that. My understanding is that that is not so and that local Healthwatch, as a social enterprise, is being treated on the same footing. My advice is as any other, but if I am wrong about that, naturally I will write to apologise to the noble Lord and copy all speakers into my letter. As I have said, I completely understand that the wording
of parts of these regulations appears complicated. In answer to the noble Lord, Lord Collins, I should say that for that reason I can commit to my officials working with Healthwatch England and the Local Government Association to publish clarificatory material on this.
Having said that, I was slightly surprised that the noble Lord, Lord Warner, cast aspersions on Regulation 41. He asked how small organisations could understand the requirements set out in it. The matters set out in Regulation 41 are matters to be included in local authority contracts with local Healthwatch. In fact, these are based largely on the existing regulations on LINks. I have to say that it has not been previously suggested to us that these have been difficult to understand or are disproportionate.
The noble Lord, Lord Collins, asked me who was consulted before the draft regulations were published and whether Healthwatch England was consulted. We consulted a range of stakeholders, including LINks, local authorities, voluntary and community organisations, NALM, Social Enterprise UK, the Charity Commission and providers on the issues relating to the drafting of the local Healthwatch regulations. That included the Healthwatch England interim team.
Baroness Farrington of Ribbleton: I have listened very carefully to the Minister, who I know is trying to be helpful to your Lordships’ House. But I still do not understand who exactly judges, in the cases to which he has referred, whether particular campaigns are appropriate, local or acceptable, or whether it would refer to anyone apart from those who may have a role in funding or developing policy to which Healthwatch may object.
Earl Howe: The activities of Healthwatch will be governed by a contract with the local authority. The local authority’s duty will be to hold the local Healthwatch to account according to that contract. If the local Healthwatch were to stray outside the boundaries that I have set out as to what a reasonable person would interpret as legitimate activities and stray into the territory of being a political party adjunct, it would be the duty of the local authority to make a judgment about that. It would be a matter of judgment, but it would be important for the local authority to make its views rapidly known to the local Healthwatch to ensure that it retained the role that it should have, which is a role that primarily involves community benefit. There are checks and balances in the system, and those responsibilities are held primarily by the local authority.
9 pm
Lord Warner: I am sorry to interrupt the Minister, but I must follow up my noble friend’s comments. The noble Earl seems to be saying that if the local authority takes agin what a particular Healthwatch is doing locally, the local authority can say, “Hey guys, your contract’s up and we’re going to retender”.
Earl Howe: That is not what I am saying. As I said earlier, it will be important for a local Healthwatch in any campaigning or public statements to assure itself that it is truly representing local people and patients,
and has the evidence to back that up. If it does, and if it can show that what it is saying is genuinely supported by local people, it has nothing to fear. It is only where the Healthwatch may latch on to one or other political party without reference to local people that it may be vulnerable.
Baroness Farrington of Ribbleton: I am sorry, my Lords, but the noble Earl is not answering the point about who makes the judgment. The noble Lord, Lord Greaves, and I have served on the same local authority. I can think of occasions when, had he or I joined Healthwatch and formed a campaign, it is quite possible that either he or I on the local authority could have taken a totally different view about what was happening. I want to know who the independent arbiter is of whether the local Healthwatch is actually doing something that it should not do, or something that the noble Lord, Lord Greaves, or I did not happen to like, because they are two very different things.
Earl Howe: They are two different things, and I say to the noble Baroness that we are dealing here with a relationship that she may characterise as overly arm’s length. It is in the direct interests of a local authority to make sure that it has a good, thriving relationship with its local Healthwatch but that it is not tarnished by party political considerations that are irrelevant to the concerns of local people. The very fact that a local Healthwatch comes out with a political statement is not to damn its activity. What makes it vulnerable is if that local Healthwatch cannot show that it is truly representing local people as it speaks out. That is a matter of evidence and of fact.
The independent arbitration that the noble Baroness talks about should not be necessary. The matter could, in the final analysis, be decided in a court, although one hopes that that would never happen. However, in the end, the local authority has to exercise its judgment, and in doing so has to act reasonably and in good faith as a public authority. If it does not, it is acting unlawfully. I hope that that is of help to the noble Baroness.
I was asked a number of other questions by my noble friends Lady Jolly and Lady Cumberlege. My noble friend Lady Cumberlege asked me whether, if there were a controversial policy, say, to close an A&E department, a local Healthwatch would be permitted to provide evidence about patient experiences to campaigners on that issue. Yes. In that scenario, we would envisage a local Healthwatch taking those very views and evidence of good standards of service directly to the commissioners or decision-makers. A local Healthwatch can also make a referral to the health scrutiny function of the local authority, which would be required to keep a local Healthwatch informed of any action taken. If a local Healthwatch thought, as part of its Section 221 activities—patients’ public involvement activities—that local people need to know what their community’s experience of its A&E is, we would certainly expect the local Healthwatch to be transparent and make that evidence known.
My noble friend asked whether people who had been active in a national campaign could be decision-makers in local Healthwatch organisations. The regulations
do not set out membership of a local Healthwatch, so it will be down to the local Healthwatch to decide whether such people can add value to the outcomes that it wishes to achieve for its local people. Local Healthwatch has to be different; it has to build up its reputation and credibility in order to secure the public’s confidence that it can have a mature relationship with local authorities, which was the point that I made just now. The regulations seek to ensure that local Healthwatch does not carry out the relevant political activities as its only or main activity. That would not meet the community benefit test.
Would local Healthwatch be subject to purdah? No, it would not. I repeat that it has been set up to be the local consumer champion, and as such its role becomes very important in getting people’s serious concerns listened to and acted upon.
My noble friend Lady Jolly asked me several questions. She expressed the fear that the regulations would render local Healthwatch a mere proxy voice. I emphasise to her in the strongest terms that that is not so. As I have explained, we have sought through the regulations to be as inclusive as possible of people who may wish to give up their time to do what they feel passionately about doing. To be frank, LINks, which is the arrangement that we have at the moment, have all too often been associated with white, middle-class men, and we need local Healthwatch to embrace diversity much better.
Could the manager of a care home sit on its local Healthwatch? Yes, he or she could get involved in their local Healthwatch, but it would be good practice for the Healthwatch in its governance arrangements to have procedures for a code of conduct, and, as set out in Regulation 40, it would be required to have and publish procedures before making any relevant decisions. That is essentially about transparency.
Could a local profit-making provider of primary care be a local Healthwatch contractor, and could its manager sit on the local Healthwatch decision-making group? Again, it would be up to the local Healthwatch whom it wishes to contract with for their expertise to help it deliver its statutory activities.
On the role of local Healthwatch to provide information and signpost people to choices, the decision rests with that individual seeking out the options available to them. We would expect local authorities’ arrangements with local Healthwatch to be robust so that it acts effectively. The local authority will be under a duty to seek to ensure that the arrangements are operating effectively and provide value for money.
My noble friend suggested that the department’s interpretation of lay involvement boils down simply to the foot soldier role. I do not agree. It would be a wrong picture to paint to the public about how a local Healthwatch discharged its obligations. The obligations are quite clear. Engagement, consultation and participation are all words that can be used to describe different types of involvement activity. Referring to “involvement” therefore provides for flexibility, as I indicated earlier.
Could the decisions listed in Regulation 40(2) be made by a decision-making body within a local Healthwatch composed of a majority of people who happen to be health or social care managers? No.
Regulation 40(2) must be read with Regulations 40(3), 40(4) and 40(1)(a). The requirement to be imposed on local Healthwatch in the contracts is to have and publish a procedure for involving lay persons or volunteers in such decisions. As stated in the advice to the Secondary Legislation Scrutiny Committee, the plain provision of information would not in most cases comply with the obligation to involve; the involvement has to be in the making of the decisions.
I hope that I have covered satisfactorily all the questions put to me, and I hope that the noble Lord, Lord Collins, will be sufficiently reassured to withdraw his Motion.
Lord Collins of Highbury: I thank all noble Lords and particularly my noble friends for their comments. I also express my appreciation to the noble Baronesses, Lady Jolly and Lady Cumberlege, who drew attention to some fundamental issues here. They are fundamental in relation to the conflicts of interests, particularly in local authorities. The noble Baroness, Lady Cumberlege, referred to the draconian restrictions and reminded us that guidance does not have statutory force. Here I take the words of Healthwatch England: the Department of Health could and should have done better with these regulations. In my opinion, they have failed. I am afraid that the Minister has not given me satisfactory reassurances, certainly not in relation to the issues that the noble Baronesses, Lady Jolly and Lady Cumberlege, raised. In the light of that, and of the briefing we had from Healthwatch England itself, it is important that the department should think again. The only way I can do that is to ensure that we pass this Motion of Regret, and therefore I would like to test the opinion of the House.
9.10 pm
Contents 113; Not-Contents 145.
CONTENTS
Adams of Craigielea, B.
Ahmed, L.
Anderson of Swansea, L.
Bakewell, B.
Bassam of Brighton, L. [Teller]
Bath and Wells, Bp.
Beecham, L.
Berkeley, L.
Blackstone, B.
Bradley, L.
Brookman, L.
Brooks of Tremorfa, L.
Browne of Belmont, L.
Browne of Ladyton, L.
Campbell-Savours, L.
Carter of Coles, L.
Clancarty, E.
Clark of Windermere, L.
Collins of Highbury, L.
Colville of Culross, V.
Corston, B.
Crawley, B.
Davies of Oldham, L.
Davies of Stamford, L.
Donaghy, B.
Drake, B.
Dubs, L.
Elder, L.
Elystan-Morgan, L.
Emerton, B.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Finlay of Llandaff, B.
Foulkes of Cumnock, L.
Gale, B.
Gibson of Market Rasen, B.
Golding, B.
Gordon of Strathblane, L.
Grantchester, L.
Greaves, L.
Grocott, L.
Hardie, L.
Harris of Haringey, L.
Harrison, L.
Haworth, L.
Hayter of Kentish Town, B.
Healy of Primrose Hill, B.
Hereford, Bp.
Howells of St Davids, B.
Hoyle, L.
Hughes of Stretford, B.
Hughes of Woodside, L.
Hunt of Chesterton, L.
Hunt of Kings Heath, L.
Jones, L.
Jones of Whitchurch, B.
Jordan, L.
Judd, L.
Kennedy of Southwark, L.
Kirkhill, L.
Layard, L.
Lea of Crondall, L.
Leitch, L.
Lister of Burtersett, B.
McAvoy, L.
McConnell of Glenscorrodale, L.
McDonagh, B.
McFall of Alcluith, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
McKenzie of Luton, L.
Mar, C.
Masham of Ilton, B.
Massey of Darwen, B.
Maxton, L.
Morris of Handsworth, L.
Nye, B.
O'Loan, B.
O'Neill of Bengarve, B.
Patel, L.
Pendry, L.
Pitkeathley, B.
Prescott, L.
Prosser, B.
Quin, B.
Ramsay of Cartvale, B.
Rendell of Babergh, B.
Robertson of Port Ellen, L.
Rooker, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Sawyer, L.
Sherlock, B.
Simon, V.
Smith of Basildon, B.
Smith of Leigh, L.
Stone of Blackheath, L.
Taylor of Bolton, B.
Thornton, B.
Tonge, B.
Truscott, L.
Tunnicliffe, L. [Teller]
Uddin, B.
Wall of New Barnet, B.
Walpole, L.
Warner, L.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
Wheeler, B.
Whitaker, B.
Whitty, L.
Wilkins, B.
NOT CONTENTS
Addington, L.
Ahmad of Wimbledon, L.
Alderdice, L.
Allan of Hallam, L.
Anelay of St Johns, B. [Teller]
Ashton of Hyde, L.
Astor of Hever, L.
Attlee, E.
Bates, L.
Berridge, B.
Bew, L.
Black of Brentwood, L.
Bonham-Carter of Yarnbury, B.
Brittan of Spennithorne, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Byford, B.
Caithness, E.
Cathcart, E.
Cavendish of Furness, L.
Clement-Jones, L.
Colwyn, L.
Cope of Berkeley, L.
Cotter, L.
Courtown, E.
Cumberlege, B.
De Mauley, L.
Deighton, L.
Dholakia, L.
Dixon-Smith, L.
Dobbs, L.
Eccles, V.
Eden of Winton, L.
Elton, L.
Falkner of Margravine, B.
Faulks, L.
Fellowes of West Stafford, L.
Fink, L.
Flight, L.
Fookes, B.
Forsyth of Drumlean, L.
Fowler, L.
Fraser of Carmyllie, L.
Freud, L.
Garden of Frognal, B.
Gardiner of Kimble, L.
Garel-Jones, L.
Geddes, L.
German, L.
Green of Hurstpierpoint, L.
Hamwee, B.
Hanham, B.
Harris of Richmond, B.
Heyhoe Flint, B.
Higgins, L.
Hill of Oareford, L.
Hodgson of Astley Abbotts, L.
Home, E.
Hooper, B.
Howard of Lympne, L.
Howe, E.
Howe of Aberavon, L.
Hunt of Wirral, L.
Inglewood, L.
James of Blackheath, L.
Jolly, B.
Knight of Collingtree, B.
Lang of Monkton, L.
Lester of Herne Hill, L.
Lexden, L.
Lingfield, L.
Linklater of Butterstone, B.
Lothian, M.
Lucas, L.
Luke, L.
McColl of Dulwich, L.
Mackay of Clashfern, L.
McNally, L.
Maddock, B.
Magan of Castletown, L.
Maginnis of Drumglass, L.
Mar and Kellie, E.
Marks of Henley-on-Thames, L.
Mayhew of Twysden, L.
Meacher, B.
Miller of Chilthorne Domer, B.
Moore of Lower Marsh, L.
Morris of Bolton, B.
Nash, L.
Neville-Jones, B.
Newby, L. [Teller]
Noakes, B.
Northover, B.
O'Cathain, B.
Parminter, B.
Perry of Southwark, B.
Phillips of Sudbury, L.
Popat, L.
Randerson, B.
Razzall, L.
Rennard, L.
Roberts of Llandudno, L.
Roper, L.
Scott of Needham Market, B.
Seccombe, B.
Selborne, E.
Selkirk of Douglas, L.
Sharp of Guildford, B.
Sharples, B.
Shaw of Northstead, L.
Shephard of Northwold, B.
Shipley, L.
Shutt of Greetland, L.
Smith of Clifton, L.
Spicer, L.
Stedman-Scott, B.
Stephen, L.
Stewartby, L.
Stoneham of Droxford, L.
Storey, L.
Stowell of Beeston, B.
Strasburger, L.
Taylor of Goss Moor, L.
Taylor of Holbeach, L.
Tebbit, L.
Teverson, L.
Thomas of Gresford, L.
Tope, L.
Tordoff, L.
Trefgarne, L.
Trenchard, V.
True, L.
Tyler of Enfield, B.
Ullswater, V.
Verma, B.
Vinson, L.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Walmsley, B.
Walton of Detchant, L.
Wei, L.
Wheatcroft, B.
Wilcox, B.
Williams of Crosby, B.
Younger of Leckie, V.
Defamation Bill
Report (Continued)
9.22 pm
11: Clause 5, page 3, line 19, at end insert—
“(3A) Where a complaint is received by an operator under subsection (3), the operator must publish on their website a notice of complaint alongside the relevant statement and, if the operator fails to do so within seven days of notice of the complaint, the operator will only be entitled to rely on the standard defences available to a primary publisher, if sued for defamation.”
Baroness Hayter of Kentish Town: My Lords, this amendment simply asks that where a properly constituted complaint is received, the website operator must post a notice alongside the allegedly defamatory material within seven days, signifying that it is being challenged. Should the website operator fail to do so, he or she would forfeit their particular defence under this clause, although they could still rely on the standard defences available to the primary publisher.
The amendment arises from a recommendation of the Joint Committee on the draft Bill, in response to which the Government seemed to cite only “issues of practicality”. In Committee, the Minister said that internet organisations,
“identified significant practical and technical difficulties with the proposal relating to the posting of a notice of complaint alongside defamatory material”.
He did, however, have the good grace to add that noble Lords may be saying,
“‘Well, they would say that’”.—[Official Report, 15/1/13; col. GC192.],
although he did not quite add, “wouldn’t they?”. However, when we met with Yahoo, it did not see a problem with our proposal. If it is so easy for an operator to post a comment, it should be no more difficult for it to add a rider simply stating that it is being challenged as defamatory by the person concerned.
Within this group we very much welcome government Amendment 17, which the Minister tabled and will no doubt shortly move. The aim of Clause 5 is simply to ensure that a claimant can find out from the web operator the name and contact details of the person who posted the comment so that they can sort it out between themselves. Provided that they do this, the operator has the defence that the author is the person to be sued. The exception for malice would cover where the operator in some way connived or encouraged the trouncing of someone’s reputation. I take this opportunity to congratulate the noble Lord, Lord Phillips, on his work in Committee, which I think led to this provision.
For the purposes of time, we did not speak to the amendment just before the dinner break but we were similarly concerned that that might detract from the centrality of this clause, which is to allow the operator to stand back and let the two primary parties resolve the dispute between them. Therefore, although we very much welcomed parts of that amendment, which incorporated the idea of a code, we hope that the operator will wash their hands of the matter unless and until the court finds the defamation proved, when the operator will have to take down the defamation or, assuming that the Government accept our amendment, they will have to put up a note reflecting the fact that there has been a challenge.
I hope very much that the Minister will put the excuse of practicalities to one side and accept Amendment 11. Certainly, we have received no lobbying from any operator arguing against it. It would contribute to dealing with these matters openly, as well as speedily. I beg to move.
Lord Allan of Hallam: My Lords, in speaking to Amendment 11, I declare an interest in that my day job is working for Facebook—a company that operates a website.
I think that there are some challenges around this proposal. In Grand Committee, in response to amendments proposed by the noble Baroness and her colleagues, we discussed the variety of web services and websites that exist today, and that is where I think there may be a challenge. There are indeed a number of websites that would be amenable to the posting of a notice and where that would be quite straightforward. However, when we consider the vast scope of speech that may exist across the internet, it is clear that we are dealing with a wide variety of services.
The intention behind Clause 5—and it is one that I support—is to make sure that we maximise the opportunities for people to speak freely. There may be cases where we need to interfere but we do not want to
overly restrict the opportunities to speak freely and, as we discussed in the previous debate, the intention behind the clause is to ensure that a defence is widely available to such services.
My concern is that, while Amendment 11 would work perfectly well for a number of web services—I suspect the larger, more mature and more sophisticated could implement a system of posting notices in a relatively straightforward manner—there is a whole host of web services of varying shapes and sizes for which this would present a barrier. That would effectively mean that those services would lose the defence—a defence which I think we agreed in a previous debate is important to sustain the notion of free speech.
I understand the noble Baroness’s intention behind the amendment and I imagine that, as a matter of good practice, operators should post such notices where it is reasonable for them to do so. Indeed, Wikipedia has implemented a good practice system so that when content is contested, people are able to discuss it. That kind of good practice is reasonable but I think that restricting the scope of the defence only to services that are able to do that goes further than is sensible if we are to maintain a broad ecosystem of services in which a citizen of the United Kingdom can speak freely without excessive interference from people bringing complaints.
The only other point that I would note from an operator perspective is that every system that is put in place is abused. My noble friend Lord Phillips of Sudbury has talked about the interests of the “little man” or individual who wishes to make a complaint of defamation. That is absolutely right. However, the experience of web service operators is that some people will try to use any system that you put in place for their own purposes, and I can immediately see the scope for that when I look at this amendment. If you can guarantee that a notice will be published on a website simply by filing a complaint, I can see huge scope for it to be used by those who wish to be aggressive towards people who post content on the internet that they do not like, irrespective of whether there is any kind of substantive defamation claim. Given that the individual filing the complaint faces no penalty in this regime, a complaint can be found groundless but there will be no comeback on the individual who filed it. It would effectively create an avenue for that person to have their content posted alongside that which they do not like. I can certainly imagine that there would be significant instances when it was used in that manner. For those reasons, Amendment 11 would not be helpful to fulfilling the intention of Clause 5.
9.30 pm
Lord Phillips of Sudbury: My noble friend said that he could see the point of this and understood the need for some sort of constraint. What would he do, if this is not the right way? What would be the right way of achieving the general purpose?
Lord Allan of Hallam: The right way is to keep Clause 5 as it is currently drafted. The Government have done a good job in drafting the scope of this defence as an additional measure to those currently available under the e-commerce directive. It makes sense to have this additional defence. My concern is
that Amendment 11 would be an additional burden and further restrict the defence only to websites that have the ability to post a notice in this way. I imagine that a significant number of websites which could avail themselves of the defence in Clause 5 would not be able to do so if there were a requirement to post a notice. I can also imagine instances when such a requirement would be abused. It makes sense to leave it to the website operator, once they have received a complaint, to deal with it under Clause 5 as it is. I also think that it would be sufficient to encourage website operators to post notices when things are contested and they believe that a notice would fit with their environment and be helpful. There are instances when you need to mandate something and instances when you want to encourage it as a model of good practice. In the context of notices, the mandated option is wrong and the good practice option is correct.
Lord Lester of Herne Hill: Having spent about three and a half years attempting to reform the law of defamation, and in the light of what happened on the first amendment today, my overriding objective is to get the Bill through. I want to make it clear that I shall not be moving any of the amendments in my name this evening. I say that now in case anyone else, in their sad lives, wishes to do so. Having thought about it, I take the view that the regime as it stands, with regulations, will be perfectly capable of accommodating some of these issues properly and that we are now being overcareful and overprescriptive. I know that it is very unusual for a member of the Bar to indicate that he is under a decree of self-imposed silence, but that is my position.
Lord Phillips of Sudbury: My Lords, I listened carefully to what my noble friend Lord Allan of Hallam said. He will forgive me if I say that, coupled with what he said in Committee, there seems to be a leitmotif in his objections to amendments that really the industry is too big to control. That has echoes of the banks being too big to fail. The truth is that they are enormous organisations and with that enormity comes enormous power and the ability to inflict enormous damage on occasion.
I like the purport of Amendment 11. It seems right that, while the operator is considering what to do in the longer term, a notice of complaint should be there so that anybody reading the original defamation will see the complaint alongside it. I also understand some of the points made by my noble friend Lord Allan of Hallam. Perhaps in responding the Minister will tell us whether under Clause 5(5) it will be possible through regulations to introduce a regime for posting complaints and so on that would be practical in the variety of circumstances to which my noble friend Lord Allan of Hallam alluded. That would seem to be the obvious way to go: to take the time to work out a provision that works for all the different types of platform, and at the same time plays fair both by the operator and the complainant.
Lord Ahmad of Wimbledon: My Lords, again I thank all noble Lords who took part in the debate. I will turn first to government Amendment 17 in the name of my noble friend Lord McNally. I shall speak also to Amendment 11 in this group.
Amendment 17 provides for the defence under Clause 5 to be defeated if the claimant shows that the website operator has acted with malice in relation to the posting of the statement concerned. We tabled this amendment in response to the concern raised in Committee by my noble friend Lord Phillips of Sudbury that situations might arise in which a website operator acts maliciously, for example by inciting the poster to make the posting or otherwise colluding with him. While we consider that these situations are unlikely to be common, on reflection we agreed that in circumstances where a website operator acts maliciously it is right that the defence should be defeated. I thank my noble friend for bringing this issue to the fore.
Amendment 11 was also tabled in Committee. It would require a website operator who wished to rely on the Clause 5 defence to publish a notice of complaint alongside the material complained of within seven days of receipt of the complaint. The amendment also provides that if the website operator fails to post a notice within the set period, they will forfeit this defence and will be able to rely solely on the standard defences available to a primary publisher.
The basis for this amendment is a recommendation of the Joint Committee on the Bill that website operators should attach notices to online material when complaints are received. The Government’s position on this proposal was first set out in our response to the Joint Committee’s report. We repeated our position during the passage of the Bill in this House and the other place. The issue is one of practicality. Ministry of Justice officials received representations from internet organisations following publication of the Joint Committee’s report, highlighting the practical and technical difficulties with the proposal relating to the posting of a notice of complaint alongside defamatory material.
I will go through some obvious concerns that were raised, which may underline the practical issues. First, the point was raised that complained-about content might be embedded in a number of different sites, making it unclear who should be responsible for attaching the notice, where it should be placed and how it could be transferred across to other sites on which the material might subsequently appear. Again, as I said in Committee, I fully appreciate that the argument presents itself as one that it is in the interests of internet organisations.
In Committee we heard various arguments on both sides. My noble friend Lord Allan of Hallam highlighted practical issues from his own experience in the field. The noble Earl, Lord Erroll, talked about his daughter’s experience as a graphic designer for websites, and of the complexities of an operator attaching additional content without going back to the original programmer. I also acknowledge fully that my noble friend Lord Lucas expressed the view that it was far from impossible for website operators to attach such notices.
However, I will repeat on the Floor of the House what I said in Committee. The Government’s concerns around the practicality of this proposal have been clear from the publication of our response to the Joint Committee report almost a year ago. In that time nobody has presented to us any persuasive evidence to suggest that those concerns are not warranted.
On the issues raised by my noble friends Lord Allan and Lord Phillips about regulation, perhaps I may come back to them in writing to clarify the position. I have made a note of the suggestions that have been made.
I have listened, as ever, to all of the noble Baroness’s contributions and I am sure that she will say that our position has not changed since Committee stage, which I accept. However, we are where we are on this proposal. I repeat that no one has come to us to present a counterargument. Certainly if they have come forward, their arguments have not been of a persuasive nature. For those reasons, the Government cannot support Amendment 11 and I hope that the noble Baroness will see fit to withdraw it.
Baroness Hayter of Kentish Town: I thank all noble Lords who have spoken and, obviously, particularly the noble Lord, Lord Phillips, for his support and the interesting suggestion about it being in regulations. I congratulate the Government on their consistency. If that is all they have to offer, they may wish to look further.
The amendment relates only to subsection (3). In a situation where it was not possible for the claimant to identify the person who posted the statement, the claimant has given the operator a notice of complaint and the operator failed to respond to that in accordance with regulations, we ask that a notice is posted—it could be just a little red spot—that says “challenged by”.
I am concerned that the Government have met with the internet operators and, with no one else coming forward—we did not know that the meetings were taking place and were not asked to produce extra information—that they have taken the internet operators’ view on this as the one which will guide their hands.
Lord Hunt of Chesterton: In today’s International Herald Tribune there was a long editorial about the great superiority of the European approach to dealing with privacy on the internet compared with how the American Government were dealing with their internet operators. I support the noble Baroness, Lady Hayter. Just talking to internet operators suggests that you are not agreeing with even the opinions of the New York Times.
Baroness Hayter of Kentish Town: I am always happy to have the New York Times on my side. Clearly, however, the Government value internet operators and particularly value being consistent. On that basis, I fear that I must withdraw the amendment this evening.
12: Clause 5, page 3, line 32, at beginning insert “Subject to any provision made by virtue of subsection (6A),”
Amendments 13 and 14 not moved.
15: Clause 5, page 3, line 37, at end insert—
“(6A) Regulations may make provision about the circumstances in which a notice which is not a notice of complaint is to be treated as a notice of complaint for the purposes of this section or any provision made under it.”
16: Clause 5, page 3, line 37, at end insert—
“( ) Regulations may make provision for a procedure whereby—
(a) a complainant may apply to the court for a declaration that his complaint meets the basic requirements of a libel claim; or
(b) a website operator or the person who posted the statement complained of may apply to the court for a negative declaration that a notice of complaint fails to meet the basic requirements of a libel claim,
provided in each case that the party making the application complies with the procedure laid down in any such regulations.”
Lord Lucas: My Lords, I was hoping to get some explanation of Amendment 15 as we have not debated it. I rather wonder why it was moved formally.
The Minister of State, Ministry of Justice (Lord McNally): Because we want to get home before 3 am.
Lord Lucas: Well, let me delay things a little—but not for long.
We have had a long debate and a great deal of discussion about this but it appears to me that the regulations as they are will not allow the Government to give website operators, such as myself and others, the comfort we need to be able to keep postings in place when we are challenged as to whether they should be and we think that they are fair comment. We need some way of discovering whether the law is on our side or against us. The amendment is intended to allow the Government to frame regulations that would give us that comfort and allow us to allow others freedom of speech. I beg to move.
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Viscount Colville of Culross: My Lords, I thank the Minister for his forbearance in the various attempts I have made to persuade him to adopt this procedure.
I raised the issue of the declaration procedure in Grand Committee. However, this amendment widens out the wording of the amendment that I proposed then. Proposed new paragraph (b) would allow either a website operator or the author of a statement to apply to query the contents of a notice of complaint.
I emphasise that this procedure will be voluntary and should not be available to decide whether or not a statement is true, or any other issue that needs a contested hearing. It is simply a quick process to decide whether the claimant has demonstrated a prima facie case. It would not necessarily lengthen the notice of
complaint process as it should be issued at the same time as the notice of complaint is sent to the poster. It would run in tandem with the Clause 5 procedure.
There are concerns that this amendment might allow the website operator almost routinely to choke off the notice of complaint process by turning instantly to the declaration procedure. However, for website operators to use the procedure routinely would be to shoot themselves in the foot. The claimant could get a positive declaration, which would not only reinforce his case but give him an official document to send to other website operators showing that he met the basic requirements, which could be used in dealing with repeat postings of the statement on other websites.
As for concerns about the expense, I have suggested that the declaration procedure goes before the masters or a procedural judge. I am assured that despite the concerns expressed by the noble Lord, Lord Marks, in Grand Committee, who was worried that it would be very expensive, that a web-based procedure could be developed for as little as £25.
I ask the Minister to consider once again whether such a procedure could be included in the Bill.
Lord Ahmad of Wimbledon: My Lords, Amendment 16 would allow the regulations governing the Clause 5 process to provide for a procedure for a complainant, website operator or person who posted the statement complained of to seek a court declaration as to whether the complaint meets the basic requirements of a libel claim.
This amendment seems to envisage the creation of a system whereby, alongside the Clause 5 process, any party can seek a court declaration on a prima facie basis. It is difficult to see what incentive there would be for a complainant to do this. Such a declaration would not be determinative of the merits of the case or affect the availability of the Clause 5 defence, and so it would potentially just be an additional—and costly—step before registering a notice of complaint. Instead, the proposal appears primarily to be aimed at helping website operators to make informed decisions as to the strength of complaints so that they can be more confident in removing material or leaving it online depending on whether or not a declaration is granted.
We have serious practical concerns about this proposal. It has been suggested that the process could operate through consideration by a High Court master, on the papers, at very short notice and on payment of a nominal court fee. That seems unrealistic. We consider that it does not adequately take account of the time the process would take, given the significant additional burden on the courts, the extent of the evidence that could be needed to reach a decision and the consequent costs to the parties involved. There is also the possibility of rulings being appealed, which could add to the time and costs involved. Bearing in mind that the prima facie declaration would not be determinative of the merits of a case, it is difficult to see how that is warranted.
In any event, we do not consider that this additional process is needed. Clause 5 is intended to operate in such a way as to avoid website operators having to make decisions about the merits of defamatory complaints. The representations we received from many website
operators during consultation on the draft Bill indicated that they did not have sufficient knowledge to make these judgments and that it was not appropriate for them to be doing so.
In response, we have sought to create a simple, quick, cheap and effective means for the complainant to request the removal of defamatory material and for the poster to engage with this request and stand by his posting if he wishes to do so. We think it is right to remove the website operator from the process as far as possible, so that if they follow the process as will be set out in regulations they will have a defence against a defamation action.
Of course, if for business reasons a website operator wishes to protect their users because doing so helps them financially, there is nothing in Clause 5 that will stop them from doing so. However, we do not think that an amendment to support them in doing so is appropriate.
I say again that the Government believe that the Clause 5 process, which, as I explained, focuses on creating a system under which website operators do not have to reach judgments on the validity of complaints, is a preferable approach which will be fair to all parties involved and will deliver additional certainty and protection for website operators. We believe that it is simpler and will not involve the cost and delay of the system envisaged under Amendment 16. With the explanation that I have given, I hope that the noble Lord will withdraw his amendment.
Lord Lucas: My Lords, I am grateful to my noble friend for that. I say as an aside that I always considered that the business of this House was to consider a Bill properly, not to get home to bed, and that we should take the time that it takes. Perhaps my noble friend will give me at least a short explanation of Amendment 22 when we get there, but meanwhile I beg leave to withdraw the amendment.
17: Clause 5, page 3, line 44, at end insert—
“(9A) The defence under this section is defeated if the claimant shows that the operator of the website has acted with malice in relation to the posting of the statement concerned.”
Clause 6: Peer-reviewed statement in scientific or academic journal etc
18: Clause 6, page 4, line 4, after “journal” insert “(whether published in electronic form or otherwise)”
Lord McNally: I note what my noble friend said. I remind him of the very thorough examination that we gave to Clause 5 in Committee, but I take his strictures; I will stay as long as he likes.
During discussion in Committee on amendments tabled by the noble Lord, Lord Hunt of Chesterton, relating to the defence under Clause 6 for peer-reviewed material in scientific and academic journals, uncertainty arose as to whether the reference to journals in Clause 6 includes journals published in electronic form. As I indicated in my response to the amendment of the noble Lord, Lord Hunt, it does. However, to avoid any uncertainty on the point and to ensure that the position is clear, Amendment 18 confirms that that is the case.
I have had helpful discussions with the noble Lord, Lord Hunt, and the noble Lord, Lord May, who unfortunately cannot be with us today, on the amendments that the noble Lord tabled in Committee. In the light of that discussion I would like to make clear, for the avoidance of doubt, that the term, “scientific and academic journals” embraces journals in the very important fields of engineering and medicine and that any peer-reviewed material published by scientific and academic bodies in the form of a journal, whether electronic or otherwise, is covered by the clause.
We think it right that the defence under Clause 6 should be carefully controlled and not extended to discussion on scientific or academic issues more generally. However, we are confident that, in addition to the specific protection provided by the clause, other provisions in the Bill, such as the serious harm test in Clause 1 and the public interest defence in Clause 4, will provide more effective protection of the scientific and academic debate, as well as encouraging freedom of expression in other areas. I beg to move.
Lord Hunt of Chesterton: I thank the Minister for his remarks. I support the amendment. I just want to explain that there are important organisations in, for example, engineering and medicine. I trained as an engineer and had discussion with the Institution of Civil Engineers and the Institution of Mechanical Engineers. They have electronic journals, which are used for highly peer-reviewed discussion of important technical issues. Similarly, there are in medicine. The way that the Minister has explained the application of the law will be very useful for those organisations which currently have to spend significant time and money on legal clarification before they publish technical commentary on current issues. That will be useful for many professional bodies, including academic bodies. I warmly welcome the Minister’s remarks and the amendment.
Lord Browne of Ladyton: My Lords, Amendment 18 provides usual clarification and we support it. I pay tribute to my noble friend Lord Hunt for engaging in this issue in Grand Committee and for the way in which he has been so useful to your Lordships’ House and to his fellow experts and professionals, particularly in the engineering and medical disciplines.
Clause 7 : Reports etc protected by privilege
Lord McNally: My Lords, Amendment 19 relates to an issue raised in Committee by my noble friend Lord Phillips of Sudbury. The Defamation Act 1996 gives a defence of qualified privilege to fair and accurate reports of proceedings at a general meeting of a UK public company, and to copies of and extracts from various documents circulated to members of such a company. Clause 7(7) extends this protection more widely to cover reports in relation to companies listed on recognised stock exchanges worldwide and to summaries of such material. This includes material,
“circulated to members of a listed company which relates to the appointment, resignation, retirement or dismissal of directors of the company”.
Amendment 19 would, in addition, extend qualified privilege to material relating to the appointment, resignation, retirement or dismissal of the company’s auditors. When my noble friend raised this issue in Grand Committee, it was suggested that the existing provisions of Clause 7(7) might already cover it. We considered that in circumstances where this information was contained in documents circulated to members of a company by or with the authority of the board of directors or by the auditors, it would be covered by paragraph 13(2) of Schedule 1 to the 1996 Act. However, circumstances where the information was published without the authority of the board of directors would not be covered so, on reflection, we consider it desirable to extend the provision to cover these additional situations. This would be in line with the more general government policy to increase the transparency of interactions between companies and their auditors. I am grateful to my noble friend for his suggestion in this respect and I beg to move this amendment.
Lord Phillips of Sudbury: My Lords, I am grateful for the amendment.
Baroness Hayter of Kentish Town: I cannot be briefer than that, my Lords. We also welcome the amendment. It is small and sensible, and it reflects the Government’s willingness to listen to the House. In case I do not have the time to say that on another occasion on this Bill, I would like to say that there has been a lot of listening. More should be expected of auditors and their records should be open to scrutiny, so anything which allows wider discussions of their shortcomings can only be a good thing.
Clause 10 : Action against a person who was not the author, editor etc
20: Clause 10, page 8, line 16, leave out from “court” to end of line 28 and insert—
“(a) is satisfied that it is not reasonably practicable for an action to be brought against the author, editor or publisher;
(b) there is a prima facie case that the statement complained of is defamatory; and
(c) is satisfied that such person did not know that the statement was defamatory until a claim to that effect was made and did not reasonably believe that there was a good defence to any action brought upon it.”
Lord Browne of Ladyton: My Lords, Amendment 20 would require a prima facie case to be made before a claim can be brought against a bookseller. As I had hoped would be the case for a similar amendment in Grand Committee, it allows the Minister to explain in more detail the difference between the 1996 law and the current Bill on the defence of innocent dissemination. I know that the Minister is familiar with my argument in relation to this amendment but if your Lordships will indulge me, despite the lateness of the hour, it is worth at least explaining again in outline what that argument is.
Section 1 of the Defamation Act 1996 was passed, as was explained by the then Lord Chancellor, the noble and learned Lord, Lord Mackay of Clashfern,
“to provide a modern equivalent of the common law defence of innocent dissemination”.—[
Official Report
, 2/4/96; col. 214.]
There is no express provision in the Act itself that abolishes the common-law defence of innocent dissemination, and it is clear from paragraph 2.6 of the consultation on the draft Bill, which was published in July 1995, entitled Reforming Defamation Law and Procedure, that, in introducing the Bill into Parliament, the Government intended that the Act, as the then Lord Chancellor said, would supersede, replace and modernise the existing law. The legislation that was eventually passed does not expressly provide for the abolition of the common-law defence, and it is argued that it should not be treated as having done so impliedly.
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The problem is that there is some uncertainty over what the relationship between Section 1 of the 1996 Act and the common-law defence of innocent dissemination amounted to, and where that then sits in the light of the provisions of the Bill. I shall try to give a short explanation of this because of the lateness of the hour and because these arguments were rehearsed at some length in Committee. The Booksellers Association says that booksellers are presently in a disadvantaged position compared with where they were when the common-law defence of innocent dissemination was the defence that they were entitled to. It says that in those circumstances, if booksellers had a book—in those days—on their shelves in which it was claimed a defamatory statement had been included, they were protected if they had the advice of a lawyer who said that there was a defence to such an allegation.
Now, the association says, the position of booksellers is such that when they are challenged in those circumstances—and there is some considerable evidence that they are commonly challenged—by lawyers on behalf of people claiming that the books they are selling contain defamatory information, they are so unsure about their position that it is better just to take the book off the shelf. Given the challenges that booksellers face at the moment, the secondary publishers industry in particular, this can have a significant effect on a bookseller’s ability to be able to continue a business because, as has been explained to me, in those circumstances wholesalers are quite reluctant to take the books back.
The purpose of the amendment is to restore the defence of innocent dissemination, which would put booksellers into the position that they believed they were in prior to the 1996 Act. Alternatively, and this is my second attempt to try to achieve this, it is to obtain from the Government—from the Minister at the Dispatch Box—a clear explanation for why Section 1 of the 1996 Act is as good, and the provisions of the Bill when it becomes an Act will be as good, as the defence of innocent dissemination. In the Committee debate, I offered that opportunity to the Minister but he did not take it. At the very least, the secondary publishers that the Bill seeks to put into a position of some stability, certainty and clarity are entitled to an explanation from the Government of whether they are in a better position, or even whether, in the Government’s view, the common-law defence still exists. If it does still exist in the view of the Government, that will be of considerable comfort to them.
I apologise to those who have not heard this argument before, but there are precious few of them in your Lordships’ Chamber. They will have to go back to the Grand Committee for the detail, but I know that the noble Lord, Lord McNally, knows this argument well. It has been repeated a couple of times in debates in relation to this Bill, and I ask him on this occasion either to accept that we should restore the position that booksellers were in prior to the 1996 Act or, if not, to explain why not, or if they are in a better, or at least equal position, to explain how that works since it defeats the legal profession and all the advice I have received from those who understand the law. I beg to move.
Lord Phillips of Sudbury: My Lords, I rise to point out a bit of a car crash in Amendment 20 and Clause 10 in the light of Amendment 17, in which the Government, to the approbation of the House, introduced the issue of malice. If the operator of a website was actuated by malice, it will deprive him of his defence. That is no longer consistent with the provisions in Clause 10(1), because in effect it says that you cannot sue,
“unless the court is satisfied that it is not reasonably practicable for an action to be brought against the author, editor or publisher”.
So far this evening, the noble Lord, Lord Browne, has discussed Clause 10 and his Amendment 20 exclusively in terms of booksellers, but it applies equally to website operators. It will completely undo the introduction of the issue of malice into Clause 5 if Clause 10 allows an operator to avoid being sued for having allowed something to be posted with malice on the part of the operator if, in the language of Clause 10(1), it is reasonably practicable to sue the author, editor or publisher. I apologise for not having picked this up earlier, but we need to do something about it. It also infects Amendment 20, where the same issue prevails.
I have a second issue. I am sorry to have to object to this amendment, but in proposed paragraph (c) in Amendment 20, there is a “not” in the first line that should not be there. As worded, it would mean that a court would not have jurisdiction to hear a complaint unless, among other things, it was satisfied that the bookseller,
“did not know that the statement was defamatory”,
et cetera. The point surely must be that the bookseller did know that the statement was defamatory. I do not quite know what we do at this time of night on Report, but if I am correct, and I have a horrible feeling that I am, it undermines both the amendment and the present state of Clause 10.
Lord Prescott: My Lords, I agree with the amendments put forward by my noble friend Lord Browne. The noble Lord, Lord Phillips, has made a point about the confusion between the interpretation on the websites and in this amendment with regard to books. This is about whether the statement is known to be defamatory. I want to raise an unusual matter; I believe this House made a defamatory statement in the very committee that was set up to review the situation.
Noble Lords will know of the Joint Committee on Privacy and Injunctions. In pre-legislative scrutiny, it took evidence from a Mr Burby on super-injunctions. His first piece of evidence was entirely about super-injunctions, which anyone could give. His supplementary evidence was about himself. The courts had told him, after his acts of blackmail and harassment, that under the injunction he could not make any of these statements publicly. So he came along to the Joint Committee and gave the evidence at a meeting chaired by Mr Whittingdale. In his supplementary evidence, he repeated all the things that the court had told him he was under an injunction not to say anything about. He repeated evidence about the allegations and the whole case which the courts were considering.
The lawyers of the lady who was the subject of these charges objected to his evidence. I am most concerned that not only did he repeat them as evidence but that the Daily Telegraph, true to form, then printed them, arguing that they were covered by parliamentary privilege. Simply because he had given evidence to the Joint Committee, he claimed parliamentary privilege.
In the other place, normally if a case is under way it is considered by the Speaker to be sub judice and cannot be discussed, so there is no conflict between the court and Parliament. In this case, the lawyers of the lady concerned complained to the Joint Committee, which chose to go ahead and publish, again arguing parliamentary privilege. I was concerned about this and asked the Clerk of the Parliaments how this could happen. I asked him why it is not ruled that the committee publishing evidence on its website, citing all those things which the court has told the witness he cannot say, is able to say that the injunction does not matter because we are the ones who make the decision here. That evidence is still being published today. It is on a website now in the name of this House, and it repeats all the things that the court said could not be printed.
This raises a number of issues. When I approached David Beamish, the Clerk of the Parliaments, he said, “Oh, well, it is very difficult, but you can discuss it when the report comes to this House”. Well, the report did not come to this House. While the other place had a chance to discuss it, we did not, simply because the Easter holidays came along, or whatever it was. I was told I could discuss it when we came back. The House
of Commons quickly moved on to Second Reading, so I was denied the opportunity of raising this important issue here as the Clerk of Parliaments had suggested.
Now we have the Bill here. Because I am in the Council of Europe, I am unable to take on the obligations to go to the committee all the time. I think the House will understand that, but that means that the matter must be raised here.
This raises some pretty fundamental issues. In the other place, it is certainly the convention that if you discuss an issue that is under an injunction, it is considered sub judice. The Speaker will intervene and say that you cannot discuss it, although that has been breached a few times; a Member of Parliament from Leeds made the point about the footballer and the super-injunction.
The issue here is a discussion by the Joint Committee about super-injunctions. The allegations that Mr Burby repeated were not subject to a super-injunction, although he alleged that they were. The courts have since made clear that there was no super-injunction. It was simply an injunction, which basically means that it was not relevant to the Joint Committee’s inquiry but the committee chose to ignore that. Mr Whittingdale in his statement says again that it was a super-injunction. I am afraid that the courts have made clear that it was not, so it really is not right for us to publish evidence that continues to be available on a website—I even have a copy of it today—making all these claims which the courts have said should not be repeated.
I say to the Minister that clearly somebody needs to sort this out. It is a difficult problem, and something that is increasingly breached. MPs decide to get a bit of publicity, because that it what it is about, and name somebody before the Speaker can stop them. I do not know what the position is in the House of Lords, but it is clearly an issue.
Finally, I would like to see that evidence, which is being published in our name, removed. That act of publication is breaching the injunction that has been laid down, and Parliament does it with a certain amount of contempt. I hope that the Minister might look into this matter and find out what the circumstances are. Perhaps he could let me know if he is satisfied or whether it is under review. I bring it to the attention of this House on this occasion, and I am sorry to burden your Lordships with it so late in the night.
10.15 pm
Lord McNally: Perhaps I may try to deal immediately with the intervention of the noble Lord, Lord Prescott. I am not quite clear which committee received this evidence.
Lord Prescott: It was the Joint Committee on Privacy and Injunctions chaired by Mr Whittingdale.
Lord McNally: The noble Lord will know that we recently set up a Joint Committee on Parliamentary Privilege. To a certain extent, I am flying blind but I certainly think that his point should be drawn to the attention of that committee. I am a member of the Privileges Committee of this House and I will draw his
remarks to that committee’s attention as well. It is a very difficult area. As he said, we have had one or two examples of honourable Members and noble Lords pushing the envelope as regards parliamentary privilege, which is one of the reasons why the Joint Committee was set up. I believe that this is the first example of a member of the public abusing it in that way. The noble Lord’s remarks certainly should be looked at by both committees.
As regards the eagle eye of the noble Lord, Lord Phillips, and possible contradictions, perhaps I may consult the parliamentary draftsmen on whether he is right. We still have time before Third Reading to iron out any wrinkles that he or others have spotted.
On the central issue raised by the noble Lord, Lord Browne, I will try again to see whether he is any more satisfied. As he explained, the amendment is at least in part an attempt to codify the defence of innocent dissemination. We explained in Committee, and previously in the other place, the Government’s concern about a provision such as this, which requires the court, as part of an assessment on jurisdiction, to assess at least to some extent the merits of the case before it. We think that such an approach has the potential to be unnecessarily confusing.
However, I will focus my response on the substantive issue at hand here—the defence of innocent dissemination. We have acknowledged the debate that exists over the terms of Section 1 of the 1996 Act and how this compares to the common law defence. During the Committee stage the noble Lord, Lord Browne, asked me to be “more courageous” in articulating how the Government saw Section 1 and the common law interrelating. When this House was considering what became Section 1 of the 1996 Act in Committee, my noble and learned friend Lord Mackay of Clashfern, the Lord Chancellor at the time, indicated that the Act would “supersede” and “replace and modernise” the existing law. There was debate at the time as to quite what the test for innocent dissemination was and whether Section 1 properly captured it. The Government of the day took the view that it did but the debate continues.
Under Section 1, a secondary publisher is at risk of liability once it is put on notice that a statement is defamatory. It is argued that, at common law, the secondary publisher retains the innocent dissemination defence provided it honestly and reasonably believes that a defence is available in respect of that publication. Carter-Ruck on Libel and Privacy describes the Section 1 defence as generally being more generous to secondary publishers. On this issue, however, it suggests that while the position is not without doubt, the better view is that the Section 1 defence is more easily lost than innocent dissemination at common law. Gatley on Libel and Slander takes the view that it is “possible” that the statutory defence is narrower than the common law in this respect.
The Government’s view is that it is right to say that Section 1 has, in effect, superseded the common law defence of innocent dissemination. As I have tried to illustrate, the position at common law prior to the 1996 Act was not as clear as certain lobby groups would like to suggest. We could have explored the option of extending the Section 1 defence but, as with
Clause 5, the Government have taken the view that the better approach is to remove the secondary publisher from the process.
We believe that the approach that we have adopted in Clause 10 will provide effective additional protection for secondary publishers such as booksellers. It is consistent with the approach that we have taken elsewhere in the Bill in that the focus is on directing the claimant towards those who are actually responsible for the defamatory material. In the unlikely event that it is not reasonably practicable to sue the author, editor or publisher, Clause 10 allows a claimant to bring an action against a secondary publisher such as a bookseller. However, nothing in the clause would then prevent that bookseller from deploying any defences that may be available to him. We believe that this is a proportionate approach that is fair to all those concerned.
I will say in addition that in my discussions and evidence regarding the point that the noble Lord, Lord Browne, made about the intimidation of booksellers, the sending of a letter on high-quality, posh paper represents a kind of bullying. I hope that this clause and what I have said will give booksellers the protection to resist that and that they can use the protections in the Bill against such intimidation. I have tried to be as candid and clear as I can to the noble Lord about our approach to this. Whether it is courageous enough, I do not know.
Lord Browne of Ladyton: My Lords, I am grateful to the Minister for engaging with the spirit of the amendment, to the noble Lord, Lord Phillips, for engaging with its detail, and to my noble friend Lord Prescott for seeking the opportunity that it provided for him to exercise another issue. I hope he is satisfied that he has raised an important and serious issue. It is to be hoped that the broader consultation and debate on privilege that the Government are undertaking will deal with that among other things. We certainly should not have a situation where, by our own actions, we defeat the law that we pass.
On this occasion, I say with respect that the Minister has engaged more with the detail of the argument than he has done before. I think that he appreciates that. He and I have been partial in our quotation of the noble and learned Lord, Lord Mackay of Clashfern, from when, as Lord Chancellor, he introduced the 1996 Defamation Bill to this House. There are other quotations from the noble and learned Lord that I could play into the debate, which might get us back to the situation that we were in not so long ago in our deliberations on Report—quotations from the same judge that could be used to support two different sides of the argument. However, I have no intention of trying to replicate that interesting Alice in Wonderland environment that lawyers can sometimes create.
The Minister has probably been more courageous on this occasion. As regards the Booksellers Association, I accept what the noble Lord, Lord Phillips, said—that this provision applies to other secondary publishers, although I might say in passing that I am not sure that his interpretation of Amendment 17 is correct. However, we will perhaps return to that. I hope that booksellers will be satisfied. I have enormous sympathy for this group of people, who are at the mercy of a collision
between two others. They are—if I may say so with respect to website operators—less culpable or less engaged in that process than perhaps website operators could be. There are some website operators whose very business plan encourages them to go to the margins and sometimes beyond the limits of what is allowed without remarks being deemed defamatory. Booksellers are not in that situation. They are one of many groups of people whom we are trying to improve and clarify the law to support.
I shall go back to those whom I have been engaged with to see whether they are satisfied, but, at the very least, we should strive with this Bill to put them in the position that they were in with the defence of innocent dissemination. I think that they will be comforted by the fact that the Minister has made it clear that it was his aim with this—I might say, although it does not sound like it—very welcome provision to codify that defence among other things. They are generally very pleased with the provision but would like it to be perfect—but then would not we all? In those circumstances, I beg leave to withdraw the amendment.
Clause 12 : Power of court to order a summary of its judgment to be published
Lord Black of Brentwood: My Lords, in moving the amendment, I refer to the declaration of interests that I made when speaking to the first group of amendments that we considered today. It was a matter of great regret to me that the fallout from the Leveson inquiry and the need to make swift progress on a new regulatory system occupied me fully before and after Christmas and meant that I was unable to attend proceedings in Grand Committee. It was a particular regret that I was unable to provoke wider debate about Clause 12, about which I expressed concerns at Second Reading, calling it,
“inimical to any basic concept of editorial and press freedom”.—[
Official Report
, 9/10/12; col. 963.]
I contemplated moving to have the clause removed, but I fear that that ship has sailed. If the clause is to remain part of the Bill, an important amendment needs to be made to it to deal with a situation where defamation cases go up through the court system to appeal. The Bill as it is currently drafted holds out the prospect of a publication having to publish something which is later quashed either in the Court of Appeal or the Supreme Court.
I imagine that the intention behind the Bill is for this power, which I still believe is a draconian power, to apply only after the final disposal of a case where appeals have been exhausted or after the time limit for an appeal has expired. This modest amendment to Clause 12(1) would deal with this point. I would be grateful if the Minister had any comments to make or could consider the point before Third Reading. I beg to move.
Lord Browne of Ladyton: My Lords, I say with respect to the noble Lord, Lord Black, that I oppose the amendment for the simple reason that it is quite well established, certainly in my experience of the practice of the law, that if a particular element of a judgment which is under appeal is not to be effective, it is open to the party appealing to ask the court to suspend the application of that part pending the appeal. That is the way in which provisions of the law operate in many other areas of life, and I see no reason why this provision should be any different.
The noble Lord, Lord Black, has made it clear that he opposes the provision completely, but thinks that it should be stated explicitly that it can apply only on a final judgment, which means after the last appeal. However, I say with respect to him that publishers or those who hold the cards, as it were, should be in no better a position than anybody else who has a judgment against them pending appeal. I cannot for the life of me imagine that they would not be successful in suspending the application of that part, but it should be matter for the courts on an application for appeal rather than for this Bill.
10.30 pm
Lord Ahmad of Wimbledon: I start by thanking my noble friend for tabling the amendment, and the noble Lord, Lord Browne, for his timely intervention. Amendment 21 would provide that a court may order a defendant to publish a summary of the court’s judgment only where it has given a final judgment for the claimant in an action for such a defamation. The aim of this amendment appears to be to prevent the court ordering the publication of a summary of its judgment while there remains the possibility of the defendant appealing the ruling. As the noble Lord, Lord Browne, has already said, I can assure my noble friend that this amendment is not necessary. As is the case in any other civil proceedings, a party seeking to appeal a decision may apply under Part 52.7 of the Civil Procedure Rules to have an order or decision of the lower court stayed. In considering whether to grant a stay, the court will be required to consider all the circumstances of the case, including whether it would create an injustice to enforce the terms of the judgment while an appeal is outstanding. We therefore see no basis for treating an order under Clause 12 any differently. I hope that with that reassurance and the comments made by the noble Lord, Lord Browne, my noble friend will see fit to withdraw his amendment.
Lord Black of Brentwood: My Lords, I am very grateful for the opportunity to raise the point, and for the assurances from my noble friend. I beg leave to withdraw the amendment.
Clause 13 : Order for removal of defamatory statement from website
(b) any person who was not the author, editor or publisher of the defamatory statement to stop distributing, selling or exhibiting material containing the statement.
(1A) In this section “author”, “editor” and “publisher” have the same meaning as in section 1 of the Defamation Act 1996.”
Lord Ahmad of Wimbledon: My Lords, Clause 13 currently enables the court to order the operator of a website to remove defamatory material in circumstances where a claimant successfully brings proceedings against the poster of defamatory material online. In Committee, the noble Lord, Lord Browne, raised the question specifically of whether this provision could be extended to cover situations where a claimant successfully brings an action against the publisher of offline material, but a secondary publisher refuses to stop distributing, selling or exhibiting material containing the defamatory statement. Clause 10 would prevent an action for defamation being brought against the secondary publisher if it was reasonably practicable to sue the primary publisher. While in the great majority of cases it is likely that secondary publishers would act responsibly and remove material when requested to do so, we consider it desirable to close any possible loophole. Amendment 22 is intended to capture any situation where the material in question is publicly disseminated by a secondary publisher. I beg to move the amendment.
Lord Browne of Ladyton: My Lords, for the reasons that the Minister spelt out, I strongly welcome this amendment. I thank the Minister for listening so carefully to the argument put before him in Committee and responding in this way.
Lord Phillips of Sudbury: My Lords, I am just nitpicking again but we might as well get this right. I think the amendment should start by saying that in line 4 an “(a)” should be inserted after the word “order”. There is no “(a)” to balance the “(b)” introduced by Amendment 22. As I say, that is nitpicking but I am sure I am right. We better get it right for Third Reading.
Lord Ahmad of Wimbledon: Let me assure my noble friend that, whether it is an “(a)” or a “(b)”, I am sure the officials have taken note and will seek to correct that.
23: After Clause 13, insert the following new Clause—
“Disapplication of the Legal Aid, Sentencing and Punishment of Offenders Act 2012
Sections 44 and 46 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 shall not apply in relation to civil actions for defamation or malicious falsehood.”
Lord Browne of Ladyton: My Lords, the effect of Amendment 23 would be to disapply the Legal Aid, Sentencing and Punishment of Offenders Act in relation to defamation claims. The roots of this debate go back some time.
The roots of this debate go back some time. The Minister will be very familiar with his contribution to the debate on Legal Aid, Sentencing and Punishment of Offenders Bill on 27 March 2012, when he gave an assurance to the House on the issue of the disapplication of LASPO, as it has become known, and that in relation to defamation claims it would be dealt with in the context of the Defamation Bill. Repeatedly, our party has sought to persuade the Government that the appropriate way in which to live up the assurance given by the Minister was simply to disapply the provisions of LASPO to defamation claims in the Defamation Bill. However, there have been a number of developments. Since we last tried unsuccessfully in the Grand Committee to persuade the Minister to do that, there has been a commencement provision of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which has a saving provision in it in relation to publication and privacy proceedings, defined in the commencement order as including defamation. So far, so good. However, there is still the possibility that a further commencement order may be made at some time in the future to commence the provisions of Sections 44 and 46 of the said Act in relation to publication and privacy proceedings.
The amendment provides the Minister with the opportunity to finish speculation about that possibility for ever by, in this provision, disapplying the provisions of that Act to defamation proceedings. If he cannot do that, second best would be to have an assurance that there will be no commencement order in relation to publication and privacy proceedings and defamation at some time in future. What would reinforce the argument for that are the recommendations of the Leveson report, which specifically deal with that issue. However, since we last met in Grand Committee and since the commencement order was passed, we have had another development—the passing in this House some five or six hours ago of Amendment 1 to this Bill, which not only deals with the issue of costs for defamation but deals with early dispute resolution, introducing arbitration proceedings. That has changed the environment in which this amendment was proposed. It is almost certain now that, whatever else happens, the issue of costs in defamation actions will have to be returned to again in the context of this Bill, either to modify the amended Bill as it presently stands or to do something else. I am not suggesting anything at the moment, having successfully stayed out of that debate thus far and hoped to keep myself in that position. I am minded at this stage to treat this to some degree as a marker, recognising that this issue will have to be debated, considered and legislated on in some fashion or other before the Bill can be completed. In the mean time, as this amendment is the only vehicle that I have to make this point, I beg to move.
Lord McNally: My Lords, I think that it was at an early stage of this Bill that I made it very clear that I was concerned with the matter of costs. The noble and learned Baroness, Lady Scotland, raised that in the debate on Clause 1 today. Everybody has recognised that this has been one of the key issues that have brought our libel laws into disrepute, and editors and journalists as well as ordinary citizens have long warned about the chilling effect of the current libel regime.
Although I do not object at all to the prodding from the noble Lord, Lord Browne, I hope he knows that in this respect he is pushing at an open door. He knows that the way that we have chosen to go was to ask the Civil Justice Council to look at how the Government can introduce a costs protection regime in defamation and privacy cases. The Master of the Rolls will report back to us with its suggestions by the end of March.
In the mean time, the Government have agreed that the provisions of the LASPO Act will not apply until a costs protection regime has been implemented. As the noble Lord indicated, the commencement order for this, which was laid on 18 January, includes a definition of “publication proceedings” and the cases to which the exemption will apply when Part 2 of the Act comes into force on 1 April. I should add that the Government’s definition goes wider than that proposed by Amendment 23.
Under our proposals, defamation and privacy cases will not feature as a permanent exemption from the LASPO Act, as this amendment seeks to apply. Instead, we will ensure that costs protection is in place so that anyone who needs to have security against adverse costs receives it. This will happen later in the year. This costs protection regime will apply to defendants as well as to claimants because defamation and privacy cases can affect academics, NGOs and ordinary people just as much as they can the super-rich and big businesses. The case for costs protection is even greater in these circumstances because an individual of modest means needs the assurance that if they have a good case that they need to pursue or defend, they will be able to do so without the risk of facing unaffordable costs.
The CJC will advise on the details by Easter. When the Government have properly considered the CJC’s proposals, the Civil Procedure Rules will be amended to introduce costs protection. As I say, we hope to be able to do that later in the year, but the current CFA and ATE arrangements will continue in place until then.
I once more reiterate to the House that I understand the concerns about access to justice in these cases. That is why we have taken the action I have outlined and it is why I am confident that we will be able to bring forward fully considered proposals which will ensure a proper and effective costs protection regime. I hope that on that basis the noble Lord will be prepared to withdraw this amendment.
Lord Browne of Ladyton: My Lords, I am grateful to the Minister for the clarity of his response. I think he knows that my view is that the undertaking in relation to costs protection is part of the answer but that this is a bigger problem than just costs protection. It is my ambition that the Government will be prepared to consider the disapplication of the provisions of the LASPO Act in all respects to the other parts of the challenges of defamation costs. Those costs are at the root of the problem of access to justice, which concerns the ability of people who do not otherwise have the resource to find solicitors who are prepared to take these sorts of actions on conditional fee arrangements and other arrangements. That should be reflected in the whole structure of costs.
I understand the effect of Amendment 1 well enough to know that this issue is not dead. I believe that we will need to return to this matter in some detail to deal with the way that the Bill has now been amended. I hope that the Government will apply their mind to that as quickly as possible and that we will see some movement. I am therefore confident that this is not the last word. It may be the Government’s last word but it will not be the last word on these issues. I shall continue to try to persuade the Minister of what I believe he already agrees with, although I have no desire to speak for him.
In the light of the fact that there will be further and probably better opportunities to deal with this issue in a more holistic fashion, I beg leave to withdraw the amendment at this stage.
24: After Clause 17, insert the following new Schedule—
“SCHEDULESpecialist Arbitration Service1 An Independent Regulatory Board must provide an Arbitration Service in relation to defamation and related civil legal claims drawing on independent legal experts on a cost-only basis to the subscribing member.
2 The arbitration rules must provide for a fair, quick and inexpensive process, which is inquisitorial and free for complainants to use (save for a power to make an adverse order for the costs of the arbitrator if proceedings are frivolous or vexatious).
3 The arbitrator shall have the powers set out in section 48(3) to (5) of the Arbitration Act 1996.
4 The arbitrator must be able to hold hearings where necessary or dispense with them where not necessary.
5 The process must include provision for frivolous or vexatious claims to be struck out at an early stage.”
25: After Clause 17, insert the following new Schedule—
“SCHEDULERecognition Commission1 This Schedule provides the method by which the Recognition Commission may be constituted for the purposes of this Act.
2 Appointments to membership of the Recognition Commission will be made by the Lord Chief Justice.
3 An individual may be appointed only if he or she has consented to act and is—
(a) a present or former Civil Service Commissioner;
(b) a present or former holder of high judicial office (within the meaning of Part 3 of the Constitutional Reform Act 2005); or
(c) a person who in the opinion of the Lord Chief Justice is suitable for appointment having regard to their reputation and experience and is independent of all political parties and all media organisations.
4 The Recognition Commission must consider whether an Independent Regulatory Board body has—
(a) sufficient guarantees of independence, including suitable independent, fair and transparent procedures for appointments and funding,
(b) suitable functions, powers, personnel and resources to ensure that it can fulfil its principal objects effectively,
(c) an appropriate standards code,
(d) an arbitration service able to deal with defamation and related civil claims, effective processes for upholding standards,
(e) an efficient procedure for handling complaints, and
(f) is open to all news publishers.
5 The Recognition Commission must review a recognised regulator at least once during the period of two years beginning with the date of certification, and at intervals of not more than three years after that.
6 If having reviewed a body the Recognition Commission is no longer satisfied that it complies with paragraph 4, the Recognition
Commission must consult the body and give directions designed to ensure that the body complies with paragraph 4 within a reasonable time.
7 If the body fails to comply with directions given under paragraph 6 the Recognition Commission must revoke the body’s certification.
8 The Recognition Commission shall not be involved in the regulation of any subscriber to an Independent Regulatory Board.”
Amendment 26 (to Amendment 25) not moved.