My Lords, this is the first opportunity for me to associate myself with the apology that my noble friend extended to the noble and learned Lord, Lord Lloyd, and I do so. The noble and learned Lord has indicated that we can move on, but perhaps I should say that when one of the observers of this Committee asked me the other day what my intention was, I felt a little like Metternich’s reaction when Talleyrand died: “Well, what does he mean by this?”. I repeat again for the benefit of the Committee that my objective is that by the end of the Committee, we will be able to bring forward a better Bill. That is the only intention I have. I have no secret orders or red lines. I want a Bill that clarifies the law, gets the balance right between reputation and freedom of speech and puts the law in a better place than when we started this journey. I am, of course, absolutely grateful to the many noble and learned Lords who are contributing to our deliberations. I would only urge on them this humility: the noble Lord, Lord Browne, made the point at the beginning of our debate that British libel law—or the English law of defamation, I am being corrected—is not in good repute. That is why we are bringing forward legislation. I humbly say that the various judgments over the years have not brought us to a good place. That is why we are here and that is my sole intention.
As someone who has some knowledge of the history of the trade union movement, the trade union solidarity show by my learned friends is very impressive, but I hope that we will get a Bill—to take the point made by the noble and learned Lord, Lord Lloyd—that the textbooks can take guidance from and that will give people some better clarity and assurance. However, as people always tell me, even when we have finished our work, it will be tested by a judge and we may then find out how good it is. That is my mission statement and I hope we can all join in that. I will certainly make sure that we try to respond to the points raised in Committee and that we have a Committee stage that gets the Bill into good shape. People have been telling me that Clause 4 is the heart of the Bill, and getting it right will be the test of how good a Bill it is. The fact is that we have tried in this process and been advised on several responses—particularly as to whether we should have lists or general principles. I should make it clear that I will listen carefully to the legal and other expertise around the table on whether we have got this right. In this approach, I am considering not only legal opinion but I want to be sure that academics, scientists and the general public know what we are about and where the thresholds are that we are trying to set.
In moving the amendment, I shall speak also to Amendment 16 and 21. These amendments respond to concerns that were expressed during the Second Reading debate in this House and in the other place about the way in which the public interest defence in Clause 4 is currently articulated.
At Second Reading, a number of noble Lords were concerned that Clause 4 as drafted might not adequately reflect the current law in the light of the Supreme Court’s decision earlier this year in Flood v Times Newspapers. Some noble Lords also took the view that including a non-exhaustive list of factors to which the courts can have regard in considering the defence
could risk creating a rigid checklist approach and add to the evidence that would need to be gathered and to the expense of running the defence.
From a different perspective, some stakeholders have called for a radical shift in the clause towards the interests of defendants by introducing a requirement for the claimant to show malice in order to secure any remedy beyond publication of an explanation or correction. Let me say at the outset that the Government do not believe that this approach, which changes the burden of proof, would provide appropriate protection for people who have been defamed.
However, we are grateful for the many contributions that have been made to the debate in this House and elsewhere, and we accept that the clause can be improved. Our amendments make changes which recast the defence in a number of respects. First, Amendment 14 replaces the requirement for the defendant to show that he acted responsibly in publishing the statement complained of with a requirement for him to show that he reasonably believed that publishing the statement complained of was in the public interest. Consideration of whether a publication was “responsible” involved both subjective and objective elements. “Reasonable belief” also does this, but we believe that it brings out more clearly the subjective element in the test—what the defendant believed at the time rather than what a judge believes some weeks or months later—while retaining the objective element of whether the belief was a reasonable one for the defendant to hold. The courts will need to look at the conduct of the publisher in deciding that question.
Amendment 21 inserts a new subsection requiring the court, in considering whether the defendant’s belief was reasonable, to make such allowance for editorial judgment as it considers appropriate. This expressly recognises the question of editorial discretion which has featured in recent cases, in particular in the Flood judgment. Although this provision is likely to be most relevant in journalism cases, it has been drafted in a way that does not limit it to that context.
Amendment 16 removes the list of factors which the clause currently invites the court to consider. This is a difficult issue. Although we do not believe that the courts would apply the list of factors, based on those in Reynolds, as a checklist, we have responded to strongly expressed concerns that the use of a list may be likely to lead in practice to litigants and practitioners adopting a risk-averse approach and gathering detailed evidence on all the factors listed, in case the court were ultimately to consider them relevant.
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We recognise that in the short term removing the list may lead to some uncertainty as the courts consider how the new defence should be interpreted and applied. However, in the longer term, the position will clarify as case law develops and, on balance, we consider that it is preferable for there to be greater flexibility than a statutory list might provide. At the same time, in determining whether in all the circumstances the test is met, we would expect the courts to look at many of the same sorts of considerations as they have done before. We believe that these amendments improve
the Bill and avoid an overly prescriptive approach, while at the same time maintaining an appropriate balance between the interests of claimants and defendants.
I turn now to the other amendments in this group. Amendment 15 would add a subsection requiring the defendant to show that he acted fairly as to the manner, balance and content of the statement. The Government do not consider that this is necessary or appropriate. As I explained in speaking to government Amendment 14, in deciding whether the defendant’s belief was reasonable, the court will need to look at the conduct of the publisher. Issues such as those raised in the noble Lord’s amendment relating to the manner and content of the statement would, we think, go to the question of whether it was reasonable for the defendant to believe that publication of a statement was in the public interest. However, there is currently no requirement on the courts to determine whether the statement was balanced as such. Including this provision could risk narrowing the scope of the defence.
In reaching a decision on the reasonable belief test the court will have to consider all the circumstances of the case and I do not consider that it would be helpful to specify particular examples of issues that may be relevant in the Bill. That would begin to lead us back down the road towards a statutory list of factors which many noble Lords have indicated that they wish to avoid.
Amendments 16A and 17 would add provisions to the list of factors currently in Clause 4(2) relating to the resources of the publisher. As I indicated in speaking to government Amendment 16, we consider that the list of factors should be removed from the clause to avoid the possibility of this being regarded as a checklist and to give greater flexibility than a statutory list would provide.
In the light of this and the other changes which we have proposed to the clause, the court will be able to take account of all the circumstances of the case in reaching a view as to whether a defendant reasonably believed that publication was in the public interest. We believe that it is important that the court has as much flexibility as possible in doing this. In any event, whether or not the list is retained, we do not consider that creating a presumption in relation to a particular set of circumstances or a particular type of defendant, such as is proposed in Amendment 16A, would be appropriate.
In relation to Amendment 17, in the event that the list of factors remains in the Bill, there is already a factor enabling the court to have regard to the nature of the publication and its context, which we consider would embrace issues such as the resources of the publisher. In either case, we therefore do not consider that a specific provision referring to the resources of the publisher is necessary or appropriate.
Amendment 22 amends the provision in government Amendment 21 relating to editorial judgment to refer instead to “the publisher’s” judgment. As I indicated in speaking to Amendment 21, our provision expressly recognises the question of editorial discretion which has featured in recent cases, in particular in the
Flood judgment. This is about the latitude that should be given to judgments about how a story should be presented.
We recognise that the provision on editorial judgment is likely to be most relevant in journalism cases. However, it has been drafted in a way that does not necessarily limit it to that context and it will be open to the court to take it into account wherever it considers it to be relevant.
Finally, Amendment 23 would require the court to have regard to all the circumstances of the case when deciding whether the defendant’s belief was reasonable. We cannot see what other approach the court might take to subsection (1)(b) though we recognise that there may be concerns that, in interpreting and applying the new defence, the court will simply reinvent a new list of factors. It is inevitable that a body of case law will develop and, in doing this, the courts may decide that particular factors are relevant in determining whether the defence has been established in the case in question. Those factors may, in turn, be considered relevant in the particular circumstances of the case which follows. That is part of how the court develops the law and requiring them in statute to consider all the circumstances would not make any difference in practice as that is what the courts will do in any event. We therefore consider these amendments unnecessary.
As I said, this is very much the heart of the Bill. When we started this journey, I was told very clearly that a simple codification of the Reynolds defence would not be fit for purpose as far as this legislation is concerned. While the Bill has been going through its various stages we have had the Flood judgment. It has always been on my mind whether it is necessary to raise the hurdle a little in our defamation legislation. This is an attempt to do so without being overprescriptive. During the previous debate, the noble and learned Lord, Lord Lloyd, said that it would be better to be able to converse with the Government. One of the reasons why I was glad we moved into this Room is that it gives the opportunity to converse. If we are not to have debates in 10 years’ time about whether our libel laws are in the wrong place, then this is the opportunity to get it right. I beg to move.