It might be helpful to the Minister as well, because I did a pretty sloppy job just now in my desire to be quick. Under existing case law, it is true that the claimant has generally been involved in the dispute reported, either through being personally and directly involved as a party or through membership of a faction or group that is a party. But the principles are applicable when, especially in a political context, both sides of a dispute are being reported. According to Lord Justice Sedley, in a case called Charman v Orion, from 2008, 1 All ER 750, there is no need for reciprocal allegations. There can be a reportage defence for what he called a unilateral libel. He said that the reportage defence,
“developed in Al-Faghi”—
to which the noble Lord, Lord Browne, referred—
“cannot logically be confined to the reporting of reciprocal allegations. A unilateral libel, reported disinterestedly, will be equally protected”.
That is, I think, in the amendment of the noble Lord, Lord Browne. There is no express statement in case law that the claimant must be a party to a dispute, and it would be unfortunate if the new statutory effects were more restrictive than the common-law position. That is why all of this is present. As the noble Lord, Lord Browne, said, it is not to undermine something in the common law. The problem is that the common law is pretty uncertain. It seems to me that we can do away with all this by not having subsections there at all. I hope that that helps. The new subsection has the potential to cause confusion in the light of the rest of the clause by stating that,
“the court must disregard any omission of the defendant to take steps to verify the truth of the imputation”.
The reference to taking steps to verify is there because the checklist in the current version of Clause 4(2)(g), provides, as one of the factors,
“whether the defendant took any other steps to verify the truth”.
If subsection (2)(g) goes, there is no need to provide for the court to disregard that, and any reference to taking steps to verity in subsection (3) would be confusing. I am sorry to go through all this but I think that in the interests of simplifying the law we can get rid of it altogether.
3 pm