My Lords, I beg to move Amendment 1, which is in my name and that of my noble friend Lady Hayter. If it is convenient to the Committee, I shall speak also to Amendment 2, which is also in our names, and Amendment 3, which is in the name of the noble Lord, Lord Mawhinney. First, it may be appropriate to set out the Opposition’s position in relation to this Bill. At Second Reading, I made it clear that we welcome this Bill but that we are a critical friend of the draft before your Lordships. It is appropriate to recognise the work, in particular, of the Joint Committee on the draft Bill, and everyone in working groups and campaign groups who have got us to this point.
We on these Benches support the modernisation of our defamation laws. As was said at Second Reading, there have been concerns that defamation laws are outdated, have fallen behind technological developments of restricted freedom of expression and have attracted libel tourism. The current system is also skewed by the high cost of defamation proceedings. All these issues will exercise our minds as we examine the provisions of the draft Bill.
The objective of the exercise is to amend and revise the law to leave us with laws that are clearer and more proportionate. It is important that in any review and reform of defamation laws we get the right balance between freedom of speech and expression on the one hand and protecting reputations on the other. I am sure that noble Lords will express that objective in many different ways as we proceed. Essentially, that is what we are seeking.
I pay tribute to the Minister for the way in which he has engaged with my noble friends and me, and, I am sure, with other noble Lords. At Second Reading, he indicated that the Government were listening and that they would engage in debate and discussion about a number of aspects of this Bill. I suppose that it is slightly premature to say that the Bill has already been improved but I think that one can anticipate that some of the proposed government amendments will be accepted by your Lordships’ House. In that sense, I think that I
am on safe ground to suggest that the Bill will be improved. It has been improved already through its passage in the House of Commons. Since Second Reading, because of engagement with the Government, we have high hopes that there will be a continuation of improvement.
There still are other issues that we wish to address and with which we wish to engage in debate. We hope that the attitude shown so far by the Ministers and their supporting officials will continue, that the Government will continue to listen to the argument, and that we will be able to further improve the Bill.
Amendment 1 seeks to expand Clause 1 by adding the words,
“and the extent of its publication”,
to the test of seriousness. This amendment will be recognised by some as being very similar to an amendment proposed in Committee in the House of Commons. However, the drafting of that amendment properly was interpreted by the Minister, Mr Djanogly, as being restrictive rather than expansive of seriousness. Thus, the Minister avoided engaging with the issue which it was intended to bring forward.
The purpose of the first two amendments is to elicit from the Minister a clarification of the meaning of “serious harm” for these reasons. I commend paragraph 27 of the report of the Joint Committee on Human Rights when scrutinising the draft Bill. It sets out clearly the existing threshold by referring to the threshold of seriousness that requires to be reached to establish that a statement is defamatory and that the courts have the power to throw out a claim where this is not met or where no “real and substantial” tort can be demonstrated. There is wide agreement that that threshold is too low and that the balance in the existing law is not being struck properly. Under the Bill, a statement is not defamatory unless its publication has caused, or is likely to cause, serious harm to the reputation of the claimant. We have been told through comments made by Ministers in the course of the debate thus far that the intention is to raise the bar from what is currently the law.
Overall, Labour supports the objective of raising the bar and reducing the number of trivial cases, but believes that the clause is not sufficiently clear. We have tabled the amendments now before us and those tabled in the Commons in order to clarify the meaning of “serious harm”. They sit neatly with the amendment tabled by the noble Lord, Lord Mawhinney, which would require the Secretary of State to issue guidance on which claims should be struck out by the court for not meeting the test of serious harm. I should record that when this issue was debated in Committee in the House of Commons, the Minister addressed it in an attractive and simple way by saying that the test would be set by Parliament and we should not seek to restrict how judges interpret it. I have some instinctive sympathy with that view. We make the law and the judges interpret it; it is not for Parliament or the Government to lay down exactly what the test means. However, we are trying to achieve a better balance between freedom of speech and expression on the one hand and protecting someone’s reputation on the other, and we are seeking to do that principally through this test. There is an
onus on Parliament to understand what it is doing and to be convinced that the devices it uses meet the objective. Therefore, without an explanation of what the effect of this test will be, what the Government intend by it and how in practice they think it will meet the objective, it will be well nigh impossible for Parliament to be convinced that the objective of striking the proper balance has been met. These amendments seek to provide the Government with an opportunity to explain how the objective is met by the test.
The amendments have also been tabled against the background of the history of this process. The draft Bill had a different test. The Joint Committee recommended yet another test. The tests are similar to each other, and the Government chose a third one. There is an argument that the process has confused rather than clarified the position. I refer to the first sitting of the Committee on 19 June 2012, where Karl Turner, the MP for Kingston-upon-Hull, rose to support an amendment similar to those before your Lordships today. He started off by setting out his agreement with the underlying principle behind the existing clause. He said he was,
“searching for clarity in the face of some possible confusion”,
and he set out broadly the argument that I have sought to set out. He said:
“Clause 1 aims to introduce a hurdle for pursuing claims through imposing a serious harm test, meaning that a published statement can be defamatory only if it has caused or is likely to cause serious harm”.
He said that he thought that that was sensible, and set it against the current situation. He went on to accept—and I accept—that the,
“decision to apply such a hurdle will allow judges to strike out trivial claims … early on, and reduce the expense and time taken by needless and vexatious litigants”.
He then explained why he supported the amendment and encouraged the Minister to engage with it. He said that,
“a clearer statement of what is meant by ‘serious harm’, specifically how it differs from harm”,
would be helpful. He added:
“There must be a clear indication of the intended meaning of serious harm, otherwise the clause is likely to fail in its principal aim, which is, as I have said already, to prevent vexatious claims. The explanatory notes outline that the clause raises the bar for bringing a claim, but the lack of understanding regarding the true meaning of ‘serious harm’ means that we do not know how high the bar is being raised. This is a concern not only for the lawyers and judges”—
we have enough lawyers in this Room to engage in this debate and keep us going for a long time—
“who will be required to interpret the law once it is passed, but also for the House, which has to scrutinise the legislation now”.
He continues by making the point that makes my point in the clearest way. He said:
“Unless we are clear about how high the bar has been set, we shall be unable to understand fully whether the Bill strikes the correct balance between freedom of expression and the protection of reputation, which I think we all agree is what the measure seeks to achieve. It would thus be helpful if the Minister could place on record some examples of what he considers ‘serious harm’”.—[Official Report, Commons, Defamation Bill Committee, 19/6/12; cols. 9-10.]
I could continue because my honourable friend supported his argument well thereafter.
The disappointment thereafter was, with respect to the Minister, Jonathan Djangoli, that he did not engage with this issue at all and suggested that just the history of the process—the consultation and the decision made by the Government to rest upon “serious harm”—was quite sufficient and that it was thereafter a question for the judiciary. I do not agree with that. We should continue to give the Government the opportunity to explain and answer these questions. I have repeated a slightly revised version of the original amendment for that purpose, and we have drawn on the work of the Joint Committee by proposing to add the words, “and substantial” to this clause, which was the committee’s recommendation, and give the Government the opportunity to give the explanation that they have thus far avoided giving.
Finally, before I sit down, I say that this test is crucial to what the Government are seeking to do and what we, and most of those who will contribute to this debate, are seeking to support. We will continue to return to this test because it is at the heart of the argument. If we can get clarity about this at the beginning, many of the other proposed amendments to the legislation can be seen off by reference to the effectiveness of a proper test. If there is no clarity, amendment after amendment will be tabled—and many have already been put down—seeking to draw further explanation in order that noble Lords can be satisfied that the objective will be met.
I support the amendments in the name of the noble Lord, Lord Mawhinney, who served with great distinction in his chairmanship of the Joint Committee and has done us great service on this Bill, in order to give the Government and the Minister the opportunity to set us off on our discussions with some certainty and clarity, and provide an explanation that will serve us well during the rest of our debates.
3.45 pm