My Lords, I declare an ancient professional interest. I was counsel in the Derbyshire case from beginning to end. I think that I should explain some of the background, which I hope will not bore the non-lawyers more than the lawyers. In the New York Times and Sullivan case in the United States, the problem was that a police officer brought libel proceedings against the NAACP. The Supreme Court of the United States, in a landmark case, decided that where a public figure was the alleged victim of a libel, he could sue only if he showed bad faith or a reckless disregard of truth.
In the Derbyshire case, Derbyshire County Council, rather than Mr Bookbinder, decided to bring libel proceedings to protect what it called its governing reputation. I argued that the Sullivan rule should apply in English law. I failed—and I failed for a very good reason, which is that American law, illogically, looks at the identity of the claimant rather than the subject matter of the libel claim. When the case reached the House of Lords, however, that great Scottish judge— I repeat for the benefit of the noble Lord, Lord Browne—that great Scottish judge, Lord Keith of Kinkel, said that you do not need the European Convention on Human Rights to win this case. The common law matches Article 10 of the Convention, and Derbyshire County Council should not be permitted to seek to vindicate its governing reputation by using libel law and instead can go by way of malicious falsehood. In other words, rather like the United States, it could proceed if it proved bad faith or reckless disregard of truth.
That is the law as it stood and as it has stood ever since. Subsequently there have been some cases where for example a political party has been held to fall
within this rule on a case-by-case basis. When the Human Rights Act came into force it could have listed, as does the Freedom of Information Act, hundreds of public authorities that would be subject to the Act. Instead it adopted a different test from this amendment—namely, whether the body was performing functions—even though it was a private body—of a public nature. Tomorrow the Commission on a Bill of Rights which my noble friend Lord Faulks, and I are both on, will be reporting about that definition and what has happened to it.
The argument in favour of an amendment of this kind would be that it would somehow clarify the law. I put my name to it because of my interest in the subject matter. Unfortunately, I do not think it does clarify the law because it does not use the same kind of test of what is a public authority or a private body performing public functions. It uses a different test. The argument, I suppose, against this approach is that it is better to leave it to the judges to do this on a case-by-case basis. I myself am attracted to the idea of including something of this kind. I did not put it in my own Bill—I did not think about it at the time. I failed to persuade the Government to put it in their draft Bill, but there was a consultation on it. I am bound to have to say that there was little enthusiasm in the consultation for doing this. So, although I put my name to it, I have some hesitation to the way it is worded.
This is a very important constitutional question. What we are really saying is that a public authority or a body exercising functions of a public nature should have to go through malicious falsehood and prove malice or recklessness.
We would also go on to say that, of course, the individual councillors or public officers could themselves still sue and therefore that we would not be doing any injustice to public bodies in doing this.
I have taken too long to explain all of that, but it is important that one understands the full context of this. I am sure that this is a matter on which the luckless Minister will have to reflect further.