My Lords, first, I join those who have expressed their gratitude to the Minister, the noble Lord, Lord McNally, for not only his approach to engagement but his willingness to listen and persuade the Government that perhaps the draft Bill that was presented to us did not meet the challenge—certainly in this respect—that the Government had set themselves. In fact, I am simply grateful for his willingness to change what was before us. That is reflected in these amendments and in another amendment that we will come to in the next group. I have personally been grateful to him, as has my noble friend Lady Hayter, for his engagement and his willingness to listen, and I add to the thanks given to Sir Brian Neill, who I do not know but who clearly has made a significant contribution to improving the Bill. I also thank the noble Lord, Lord Lester of Herne Hill, for his work, and the Joint Committee. However many of its members are present—a protean number—it has done us a valuable service.
I should also thank my honourable friends Robert Flello, Helen Goodman and others in the House of Commons who engaged with this in some detail, of necessity because of the then apparent reluctance of the Government to shift on the issue. They debated many matters that we now do not have to debate with some intensity over many hours. It is to be regretted that throughout those debates the Minister at the time appeared unwilling to shift. Behind them there is a broad coalition of people who have campaigned on these issues for a significant period, and who have been represented properly here, who are too numerous in their different forms to mention.
It is probably inevitable that we will disappoint some of their best expectations of the law. There are people out there who still believe that there should be an additional public interest defence that is based on an obligation on the claimant to show malice on the part of those who publish. However, it would appear that that has not found support in your Lordships’ House and come before the Committee. The issue has not gone away and it may come back. At some stage, we will have collectively to come to the point whereby we have made the best of this legislation. We should not make the very best become the enemy of the good.
Secondly, I will make an observation that will not be lost on everyone in this Room, although it may be lost on some noble Lords. I say this with great respect to many of my friends in this Room, but it is interesting to see the chilling effect on other people that my profession can have when debating these complex and difficult issues. I am doing my best in my contributions to try not to add to the chilling effect that lawyers can have on others when they start to engage in the technicalities and obscure corners of these discussions. I constantly keep in front of me in the Bill the objective of trying to find a clear and accessible statement of the law of defamation for England—and partly for Scotland, which I shall deal with in a moment, because there are provisions in the Bill that apply to Scotland and need to be accepted through a process in the Scottish Parliament known as a Sewel Motion.
Despite the fact that the ultimate test of everything that we do here is, “How will this be applied in courts, what can we rely upon judges to do, how can people make arguments, what implications does this word have, what can we assume that that will do?”, at the end of the day people will make decisions in relation to the law of defamation well before there is any engagement with a court. There is overwhelming evidence, particularly in the world of learned—I do not use that word in the legal sense—and informed opinion, that fear of our defamation law is having a substantial and chilling effect on people, not because they do not think that at the end of the day they will be able to persuade a judge that this was a reasonable position to hold or that these facts alone are able to be proved in every jot as defensible, but because, by and large, their observation of the way in which our law works suggests to them that this is too dangerous a business to get involved in, and they would prefer to get on with their science or some other area of their life rather than devote the next two or three years to protecting the position that they justifiably hold and which they would like to get out there for discussion in the public domain.
In any event, I do not have experience of these great cases because I have not contributed to any of the ones that have got the law into this state. I try to avoid approaching that on this basis, and I will make my contribution to the debate on this group of amendments on that basis because I have an amendment that, yet again, appears to come into conflict with the way in which we pass law, with what is necessary and all the rest of it. I want that amendment to be tested against a different standard in these circumstances, for some of the reasons that I have articulated. For those reasons, I am extremely grateful that we have had the benefit of views that may not have been appropriately in point on the amendment before us but which, for people who are not lawyers, set the scene for the reality of the world in which we live. I am delighted that my noble friend Lady Hayter agreed to take responsibility for Clause 5 and everything associated with new media. I say to the noble Lord, Lord Lucas, that I will leave it to my noble friend to have a view on whether Twitter and retweeting, which I think is the appropriate active verb, is publication and whether it attracts the responsibilities that are necessitated by this part of the legislation.
I have no doubt that many questions will not be able to be answered, particularly in an environment that is changing as we speak. A later amendment seeks to get some clarity on the word “website”, simply on the basis that no one knows what will be a website, or the equivalent of it, in five years’ time. Yet the word is put here although it may not be litigated on, from the point of view of a definition, for another three or four years. However, this communication world, with which most of us have a passing relationship but are not intimately involved, is changing significantly. We should bear that in mind.
I think that by common consent Clause 4 is at the heart of the Bill and, quite rightly, has attracted the most attention. As the noble Lord, Lord Lester of Herne Hill, made clear, it is only part of a suite of defences. It is the most contentious and the most difficult. Effectively, it provides protection for defendants in circumstances where the publication of defamatory material, which is not necessarily true but is in the public interest, can be defended against an allegation of defamation if the publisher, in the previous wording, “acted responsibly”. However, those words are now to be amended to put a slightly different test, which probably would be an easier test for people to understand. However, we are still talking about the same combination of dual factors.
The question is whether this clause, imperfect as it almost certainly is, better meets the requirement. I think that, unanimously, we are of the view that it does. The principal reason is that it reflects better the decision in the case of Flood. It happened after the first drafting took place and, although it is a rather substantial judgment in terms of reading for someone who is not used to reading judgments, essentially it says that one should apply these two tests and that almost any circumstance that is relevant to the issue can be used to prove that the publication was in the public interest.
As one would expect, lawyers take a long time to say that, but I do the judgment no disservice if I say that that is what it says. When I first read the case I was extremely attracted by that approach. I was reinforced in my view by consistent exposure to groups of people who had had a bad experience with the existing law. This was not because they said to me that when they got to the proof or argument of a case they found judges unwilling to listen to their arguments as a whole; rather they said that they were scared to publish because when they go for advice people produce this list and if they cannot tick all the boxes in the list then the advisers say: “You may publish, but our advice would be not to because you will not be able to meet the necessary defence in these circumstances”. That is not a set of circumstances that we should allow to persist and there is no contributor to this debate who thinks that we should.
Either we try to list those factors that are relevant, leaving room for other people to add to them because of the changing world we live in, or we get rid of them altogether. The Minister argues, probably rightly in law, that if we get rid of them altogether it implies that all relevant circumstances have to be considered. The problem is that, whether or not we generate further energy for the cottage industry of lawyers arguing what is relevant to prove public interest, we may find that the courts are persuaded back towards illustrative lists in judgments which then become frozen again as being what the comparatively small number of English judges who do this work will be persuaded by. That is the reason for Amendment 23.
Of course it is unnecessary in one sense. I noted that the Minister three times used the phrase “in all the circumstances of the case”, yet those words are absent from the clause itself. On these Benches we argue that they should be included, not because we think judges or lawyers will not appreciate that that is what they are entitled to look to in order to prove that something is—or somebody reasonably believed it to be—in the public interest, but because, against the history of how we got to this stage, it is worth Parliament saying that, in changing the law, we are moving away from a checklist approach. So far, we are saying that there is no limit to the circumstances or the factors that you can bring to make your argument that something was—or you reasonably believed it was—in the public interest. We want to make that clear to everyone.
We would put this in the Bill not because anybody has cleverly suggested to us that, without it, judges would not allow us to do that. However, when you are making decisions about publishing anything, in any circumstances, you ought to know that, whatever the factors are, if you hold opinions reasonably and if they go towards the public interest, any attack that is made on you to the effect that you were not justified in publishing them will be irrelevant. I suspect, because I have stood in the position of the Minister at another Dispatch Box, that the Government will resist that. I suspect that lawyers, too, will resist it. However, my suspicion is that all the non-lawyers in the Room, and the people out there who have lived in the environment where they have been forced to engage with lists of things, would welcome it. They would think that Parliament had got it and was giving them a degree of
freedom that they had not had before. I urge the Committee, and ask the Government, to consider that this, although not a necessary thing to do, would be an important thing to do.
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