My Lords, I have no amendment in this group but I wish to speak partly in support of Amendments 6 and 7. I am persuaded, I think, that Amendment 7 may bring more to the clarity of this legislation than Amendment 6. I also wish to express some concerns about Amendments 6 and 7, which require clarification. I hope that we will be able to get that clarification from the Minister and perhaps reflect during the rest of the process of this Bill on whether the total effect of Amendments 6 and 7 will be as is being argued.
I approach this from a slightly different perspective. My reading of the effect of these amendments is that they are designed to improve Clause 4, which I accept, but that they would remove the element of subjectivity in the test of whether the publication was in the public interest. The clause has been substantially amended and, in fact, it has been recast. That has been welcomed, particularly by the promoters of these amendments, as the noble Lord, Lord Taverne, made clear at the outset. This is a much improved clause but, as I understand it, the aim has been to move away from Reynolds but to reflect the case of Flood in the law.
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The note by a senior counsel who is experienced in this area of the law in support these amendments is being presented—at least in my experience of those who approached me about these amendments—as supporting the argument that they would move the position in the Bill closer to Flood than it presently is. That argument is presented by reference to,
“some of the speeches in Flood”.
Unfortunately, because of other commitments in the few days since this matter was brought to my attention, I have not had the time to examine carefully whether this general claim that Flood is not being properly represented in the clause as presently drafted is correct. If it is correct, I would support the amendments to the extent that they bring us closer to the decision in Flood. If, however, looking beyond “some of the speeches” in Flood to the actual decision made in that case, it favours more the drafting of the current clause
than if it were amended, particularly by Amendment 6, then I would support the clause as presently drafted. I have not had the time to consider that, and I confess that that was entirely due to commitments that took me out of the country over the past weekend. I regret that I am unable to come here with a more precise approach to this.
The Libel Reform Campaign is undoubtedly not convinced that the clause reflects Flood and says that these amendments will improve it. If that is right, the campaign has my support, but I would like to hear whether that is the Government’s view and then, in whatever parliamentary processes are available in the Bill, I and my party will reflect on and consider the issue more carefully. We will throw our weight behind these amendments if Flood is not being properly represented. If it is, we will not be prepared to do that and would therefore consider that the amendments were still open to debate, although I favour Amendment 7 because I agree with my noble friend Lady Bakewell that the important element in this process is the decision point.
In anticipation that the Minister will move it, I turn my attention to government Amendment 8 because, as those who were present in Grand Committee will understand, it is an adoption of my Amendment 23 which I then moved and which was not accepted by the Government. However, Ministers agreed that they would reflect upon it and I am delighted that it has been brought back. I am even more delighted that the amendment has been tabled because my argument was not that it was necessary in law or that I did not trust the judges who would be required to decide cases on the amended law to take into account all the circumstances of the case. Rather, my argument, which I thought was convincing and I am glad convinced the Government, was that if we were not making the law clear, the move away from lists to all the circumstances of a case should be reflected precisely in the Bill and the Act. Some powerful voices, particularly those of noble and learned Lords, in Grand Committee suggested that that would not be necessary. As I argued then, with respect, the law is made not only for judges but for ordinary people. In this area of the law in particular, people who have no legal training ought to be able to understand what the law is.
Due to my success in relation to government Amendment 8, I have a slight difficulty in supporting Amendment 9 tabled by the noble Lord, Lord Lester of Herne Hill. His argument is that it should be accepted because these provisions are no longer necessary. If the provisions made the law clearer, I might support them; however, they are slightly confusing and for reasons relating to the restrictions in them we attacked them, without success, in Grand Committee. They are not the clearest provisions in the Bill, which is in many senses much clearer than the existing law and is helpful but, for all the reasons that I supported in Grand Committee, put forward by the noble Lord, they are now unnecessary and the Bill would be improved if they were removed.