My Lords, I am not sure what the proprieties are but for the record I had the privilege of chairing the Joint Committee, the report of which is a seminal document in the consideration of this Bill. Before I turn to the amendments in my name and the amendment in the name of the noble Lord, Lord Browne of Ladyton, and the noble Baroness, Lady Hayter of Kentish Town, I should say that the committee was enormously assisted by two noble Lords present this afternoon: namely, the noble Baroness, Lady Hayter of Kentish Town, and the noble Lord, Lord Bew. All the outcomes of the committee’s deliberations were supported by both my noble friends. I shall use that word in its normal rather than parliamentary setting. The report was greatly enhanced by their contributions, for which I thank them.
The report also acknowledges the considerable help that the noble Lord, Lord Lester of Herne Hill, contributed to our conversations and deliberations. He knows that we are appreciative of that. I add to that the name of the Minister—the noble Lord, Lord McNally. His door was always open to me and we had a number of very good and constructive conversations. I thank him and express with great confidence the hope that the spirit which imbued our earlier conversations will continue to prevail in this Committee.
Amendments 2 and 3 stand in my name, so I shall start with those. The first seeks to change the test to “serious and substantial”. As I told your Lordships’ House at Second Reading, this emanated from the evidence given to us by the noble and learned Lord, Lord Mackay of Clashfern, who is probably one of the most highly regarded Members of your Lordships’ House. He was quite explicit. He apologised to me privately for not being able to be here today. I told him that I had put down an amendment to try to persuade the Committee, and subsequently the House, that the test should be “serious and substantial”. He said, “It is quite straightforward, Brian. ‘Serious’ means that what is said can be very damaging but may not be substantial if the ripple effect—the extent of publication—is very limited. On the other hand, it might be only borderline serious but the extent of publication may be so great that substantial harm is done, so there are arguments for the ‘serious and substantial’ test”. The committee was impressed by the evidence given by the noble and learned Lord, Lord Mackay, and we translated what he said to us into our report.
The noble Lord, Lord Browne of Ladyton, makes a good point when he says that we are in danger of leaving everybody slightly confused by the terms “substantial”, “serious and substantial” and “substantial to serious”. That raises another question as to whether or not the Government are seeking in this Bill to codify or to write new statute. Paragraph 27, to which the noble Lord, Lord Browne of Ladyton, referred, addresses this point.
The Secretary of State for Justice, the right honourable Kenneth Clarke, said in his evidence to us that Government were looking for new statute. He was accompanied at that evidence session by our Minister, and after I queried exactly what the Government’s position was supposed to entail, he wrote and said that we were essentially only seeking to codify the law. I must therefore say to my noble friend that we really do need to know whether the Government want to codify or to write new statute. We in the committee were fairly clear that new statute needs to be written, because as the noble Lord, Lord Browne of Ladyton, said, our view—and the view of almost everybody who gave evidence to us— was that the present bar is too low.
That leads me to another point. The noble Lord, Lord Browne of Ladyton, quoted—I think—my honourable friend Mr Djanogly in saying that this legislation needed to be clear, because Parliament set the law and the judges interpreted it as if it was a new and bold step forward into the unknown. That is how our constitution works. We have to decide what we want to tell the judges to use as the basis of their judgments. It is not complicated; it is quite straightforward. This Committee therefore needs to focus on whether “serious and substantial” would be so confusing to our judges that they could not handle it. Frankly, I do not believe that for an instant, but that is an argument that has been floated. We need to be crystal clear what the will of Parliament is. The will of Parliament as reflected by the Joint Committee was that the bar should be raised, and the will of Parliament as reflected by our committee was that this required new statute rather than a codification of existing common law.
That leads me to Amendment 3, which is in my name. The committee formed the view that while ultimately it is for judges to decide whether defamation has occurred or whether the charge is serious enough that it should be pursued in court, the evidence we received and the judgment we formed was that that process is delayed too long. Guidance needs to be issued to the judiciary in whatever form is appropriate. I am not a judge, so I am not going to leap into waters which may very quickly get above my head, but we were quite clear that there needed to be guidance in order for the judiciary to come to an early judgment as to whether this test had been met; and if so whether the case should proceed; and if not that it should be terminated immediately.