I shall certainly draw that intervention to the attention of my officials. My briefing poses the question: does the new reasonable belief test reflect the current law or change it? It then goes on to say that our intention is to reflect the current law as articulated in cases such as Flood and we believe that it does so. It states that the test draws in particular on the way in which the noble and learned Lord, Lord Brown, approached the question in Flood. It then quotes exactly the same section of the judgment. As an innocent in this jungle of legal jargon and judgments, it does not surprise me that two sides of the case should quote the same judgment. We think that we have got it right and that what we have reflects the view of the noble and learned Lord, Lord Brown. We were doubly blessed in our Committee because we had both the noble Lord, Lord Browne, and the noble and learned Lord, Lord Brown, to give us wise legal advice. It is interesting that, in anticipating a question on that, my briefing should draw on exactly the same quote from the noble and learned Lord, Lord Brown, to defend what we have done as my noble friend Lord Lester claims for his amendment.
On Amendment 9, my noble friend Lord Phillips joined my noble friend Lord Lester in general castigation, and the noble Lord, Lord Browne, gave them some qualified support. I have warned my noble friends to be wary of qualified support from the noble Lord, Lord Browne; it leads them only into bad ways.
The amendment would remove Clause 4(2), which deals with reportage. “Reportage” has been described by the courts as,
“a convenient word to describe the neutral reporting of attributed allegations rather than their adoption by the newspaper”.
Subsection (2) is intended to catch the core elements of reportage as articulated by the courts. These are that where the defendant publishes an accurate and impartial account of a dispute between two or more
parties, the defendant does not need to have verified the information reported before publication. This would not, however, absolve the defendant from the need to satisfy the court that, in all the other circumstances of the case, it was reasonable to believe that the publication was in the public interest.
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In Committee, the Government tabled amendments to recast the public interest defence contained in Clause 4 so that the second limb of the test focuses on whether the defendant reasonably believed that publication of the statement complained of was in the public interest. The list of factors which the court could take into account has been removed from the clause in response to concerns that it could operate as a checklist and lead in practice to litigants and practitioners adopting a risk-averse approach and gathering detailed evidence on all the factors listed in case the court were ultimately to consider them relevant. As it now stands, the clause is no longer open to criticism that it could lead to a rigid interpretation. This is now supported by government Amendment 8, which requires the court to consider all the circumstances of the case in deciding whether the public interest defence is established.
My noble friend’s amendment would go even further and remove the provision in the clause relating to reportage. That would effectively abolish the doctrine, as the clause expressly abolishes the common law defence with which it is linked. Our intention with Clause 4, as I have said, is to reflect the law as set out in the Flood judgment. In determining whether a defendant reasonably believed that publication was in the public interest, the courts will, as they did previously, very often want to see whether the defendant took any steps to verify the truth of the statement in issue. The need to verify was an important part of the Flood judgment. The common law makes it clear that this is not a necessary step in a reportage case. We think that it is important to make that clear. We also believe that doing so sends an important signal that a defendant may need to take steps to verify a statement when it is not a reportage case. However, we do not consider that this will prevent the court deciding in a non-reportage case that there is no need to verify. It will look at all the circumstances of the case in deciding whether this is appropriate. We are therefore not convinced of the need to change the clause further.
On the other hand, I take on board the comments of my noble friends Lord Phillips and Lord Lester about the elegance of the clause. Without any indication of a change of mind, I say that I will look at it again. However, I have fully explained our reasons for retaining it and I stand by them. In the light of my reply, I ask the proposers of Amendments 6, 7 and 9 not to press their amendments. At the appropriate time, I shall move Amendment 8.