This is interesting. There is a suite of protections in this legislation, and I want to test it. I have had Simon Singh say to me, “Oh, this wouldn’t have protected me”. First, I have been here long enough to realise that you cannot draft law for one particular case, nor can you deal with particular circumstances that may have ratcheted up. However, what I want to do, and I mean this absolutely sincerely—I look particularly at the noble Lords, Lord May and
Lord Bew—is to be able to meet senior academics and scientists and for them to say, “Yes, this does help”. This is the process that we are going through now. I hope that what the noble Lord, Lord Brown, referred to as the suite of protections that are built into the Bill will give a lot more protection to what we are doing.
To clarify the editorial matter, editorial discretion is not just about editors. The courts have used the term to refer to matters of judgment about how a story is presented, its tone and its timing. The courts recognise that there may be legitimately different views about this and that some allowances may be necessary but we do not think that publishers’ discretion is any clearer. Under the Government’s amendment, the courts will already need to look at the reasonable belief of the publisher. The reason we also proposed amendments referring to “editorial judgment” was to put this in the Bill to respond to concerns that we were not sufficiently reflecting Flood. It is better to use the language of Flood. At the same time, I can assure the Committee of our view that the term “editorial” is not limited to editors or newspapers. It is a more flexible term that leaves it open to the court to develop as necessary.
The noble Lord, Lord Phillips, wanted a clarification of “reasonable belief”. That phrase brings out more clearly the subjective element of what the defendant believed at the time, while retaining the objective element of whether the belief was a reasonable one to hold. I hope that that clarifies the matter; I shall read through it a few times myself over Christmas.
However, let us also be clear. The noble Lord, Lord Browne, referred to us introducing a liberalising defence, and the noble and learned Lord, Lord Brown, made this point. Yes, we are lifting the bar or moving the goal posts, as the noble and learned Lord, Lord Brown, helpfully explained as regards his thinking in the Flood judgment. There is a lot of talk about attempts to shackle the press; a lot of it is misguided. However, Clause 4 is a genuine attempt to strengthen freedom of speech and should be seen as such. The noble Lord, Lord Triesman, among others, raised important issues about the public interest. It remains the case that it will be for the court to determine the first limb of the test; that is, whether the statement complained of was, or formed part of, a statement which was a matter of public interest. Again, the noble and learned Lord, Lord Brown, helpfully let us into his thoughts on this matter.
That is a matter that we must think of. The noble Viscount, Lord Colville, and the noble Baroness, Lady Bakewell, explained to us what the responsible journalist does in these matters. The noble Lord, Lord Triesman, rightly reminded us of the question of what to do when the intention of the publisher or owner is to destroy a reputation. Do we give impunity to that? That is why, when our friends in the Libel Reform Campaign come close to asking for a blank cheque, I have to say that we cannot give it to them. We also have a responsibility, as well as a recognition that there is irresponsible publication.
We are moving on to new media, and my noble friend Lord Lucas will be pleased to know that that is another hospital pass that I have left for my noble friend Lord Ahmad. I would say to Twitterers the
Twittering equivalent of “caveat emptor”: “Twitterer beware”. Twittering is not beyond the law. We somehow got the idea that new media is a law-free area. People are going to find that it is not.
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On the points made by my noble friend Lord Mawhinney about the fact that we have moved, we have indeed moved since the very helpful report, partly because of the Flood judgment. In his intervention, the noble Lord, Lord Browne, made it clear that we had to move on because it would have made our proposals look very dated if we had not. In answer to the noble Lord, Lord Bew, I am aware of the Irish example. Lord Justice Leveson’s recommendations are being covered elsewhere and it would be a mistake for me to try to introduce an overlap. I have been keen that this legislation, which stands on its own feet, should not be swept away by a kind of Leveson tsunami and we have managed to do that. I shall leave it to my elders and betters—or my youngers and betters—elsewhere in this Palace who are working on the response to Leveson.
I will study this debate. I will not make promises of wild changes to Clause 4 because we have worked very hard to get it into this position. However, some very interesting suggestions have been made which will be taken forward. I am surprised that the noble Lord, Lord Lester, did not suggest that the team rewrites the guidance notes over the Christmas holiday, which would have endeared him even more to the team, but we will take that on board.
Returning to the point that this will be better if we converse, I want to converse between now and Report stage to get Clause 4 as right as we can. It will be tested by the judges, although I am not sure whether it will be quite a cottage industry or whether it will be, as the noble Lord, Lord Triesman said, even larger. If we get it as right as we can, we will be doing a good day’s work. Do I now move my amendment?