One can see why the other place was so well regulated.
It is essential for the three main political parties to reach agreement on what needs to be done to give effect to the recommendations of Sir Brian Leveson’s inquiry. If these amendments are designed to put pressure on the coalition Government to achieve that aim, they are most welcome. But if they are intended to become part of this Bill, then I cannot support them, despite the great authority of their supporters, including a former Lord Chancellor, a former Attorney-General, and my old friend and Cork neighbour, the noble Lord, Lord Puttnam. I am not aware that he took much part in the earlier deliberations on the Defamation Bill, and most of what he said about the Bill is wrong, but I am not going to go into the details now because I do not think it is relevant. The Government have done a great deal to secure a Bill that balances reputation and free expression, tries to deal with the abuses of costs, procedural rules, downscaling and so on and so forth. It is not a Bill, as the noble Lord suggested, that has been written by the newspaper industry. In its original form, it was written by me, and I made quite sure that the original Bill and the Government’s draft Bill were not like that at all. That is not relevant to what we are now considering.
I made clear during the debate on Leveson that I support statutory underpinning to make press self-regulation effective and that my little Bill is intended to do that. I shall, if necessary, introduce a Bill on those lines in the next Session, no doubt improved by this debate. I want to make it clear that I have strong objections to excessive statutory intervention, including the use of exemplary damages as a sanction, which was twice rejected by the previous Labour Government as punitive, but which the draft Bill put forward by the noble and learned Lord, Lord Falconer, for some reason includes. The sanction of exemplary damages is likely to be in breach of the convention right to freedom of expression, especially when read with the coercive amendment punishing publishers who fail to seek clearance pre-publication from a statutory regulatory board. During the Leveson debate, I pointed out that Mr Justice Eady had set out in detail in his judgment in the Mosley case,
“why it would be wrong in principle and a violation of free speech to extend exemplary damages”.—[Official Report, 11/1/13; col. 374.]
That was the position of the previous Labour Government.
The concept of pre-clearance and punitive damages was also rejected by the European Court of Human Rights in its judgment of 10 May 2011 in the Max Mosley case, in which I intervened for Guardian Newspapers. The European Court decided in paragraph 129:
“Although punitive fines or criminal sanctions could be effective in encouraging compliance with any pre-notification requirement, the Court considers that these would run the risk of being incompatible with the requirements of Article 10 of the Convention … It is satisfied that the threat of criminal sanctions or punitive fines would create a chilling effect which would be felt in the spheres of political reporting and investigative journalism, both of which attract a high level of protection under the Convention”.
The Leveson inquiry was concerned with serious press misconduct involving gross media intrusions on personal privacy. The Bill before the House is, as
its Long Title makes clear, a Bill to amend the law of defamation. It is not a Bill to amend the law of privacy. These amendments would stretch the scope of the Bill beyond its object and purpose by referring to what is described as,
“defamation and related civil claims”,
to include, apparently, violations of personal privacy. They cannot do so, and therefore do not address the central concerns of the Leveson report, but seek to use this Bill as a vehicle which was designed for a very different journey.
Leveson recommended an arbitral process in relation to civil legal claims that, as the noble Lord, Lord Puttnam, has said, would be,
“fair, quick and inexpensive, inquisitorial and free for complainants to use … The arbitrator must have the power to hold hearings where necessary but, equally, to dispense with them where it is not necessary”.
It would seem that Sir Brian Leveson did not consider whether what he proposed would be compatible with Articles 6 or 10 of the convention. It is unclear whether the movers of these amendments intend Part One of the Arbitration Act to apply. It is also unclear whether they intend the arbitration arrangements to be voluntary and entered into freely. Apparently they do not intend that, and the amendments are silent on these crucial issues.
Article 6 of the convention guarantees a fair and public hearing in the determination of civil rights and obligations by an independent and impartial tribunal established by law. In Paul Stretford v Football Association—where the noble Lord, Lord Pannick, appeared for the FA—the Court of Appeal examined the relationship between an arbitration agreement and Article 6 of the convention. The Court of Appeal considered that the provisions of the Arbitration Act were important in the context of Article 6, because the Arbitration Act, unlike these amendments, provides for a fair hearing by an impartial tribunal, and its mandatory provisions ensure that the High Court has the power to put right any want of impartiality or procedural unfairness. The Court of Appeal noted that the Strasbourg jurisprudence has made it clear that the arbitration agreement must be voluntary and not compulsory. It said:
“By compulsory in this context is meant required by law”.
The scheme envisaged by these amendments is inquisitorial and not adversarial. It is not a voluntary scheme because of the threat of exemplary damages for failure to use a recognised arbitration service. The arbitrator does not satisfy the requirements of judicial process by an independent court or tribunal established by law. The arbitrator can dispense with hearings in his or her discretion. There is no right of appeal to an independent court or tribunal and the process is free for complainants but to be paid for by the press. In my view, such a scheme would be incompatible with Articles 6 and 10 of the convention. It would result in complex legal disputes.
3.30 pm
The amendments would give the arbitrator the power set out in Sections 48(3) to (5) of the Arbitration Act 1996 but it does not provide whether the mandatory
and non-mandatory provisions of Part 1 of the Arbitration Act and related civil procedure rules would apply. That is a further major flaw. I would not expect the noble Lord, Lord Puttnam, to deal with that but I hope that others who are legally qualified will do so before we end this debate.
The amendment would require the Lord Chief Justice to establish a defamation recognition commission but he is the Lord Chief Justice only of England and Wales. It is intended that the Act will, with the consent of Scottish Ministers, apply to Scotland. The Lord Chief Justice is the wrong judicial officer in any event to perform that task.
I remain firmly in favour of effective press regulation with only necessary statutory underpinning of the kind envisaged by my little Private Member’s Bill. But these amendments are manifestly excessive and, in my view, manifestly incompatible with the convention and the Human Rights Act. Therefore, I cannot support them.