My Lords, Amendment 20 would require a prima facie case to be made before a claim can be brought against a bookseller. As I had hoped would be the case for a similar amendment in Grand Committee, it allows the Minister to explain in more detail the difference between the 1996 law and the current Bill on the defence of innocent dissemination. I know that the Minister is familiar with my argument in relation to this amendment but if your Lordships will indulge me, despite the lateness of the hour, it is worth at least explaining again in outline what that argument is.
Section 1 of the Defamation Act 1996 was passed, as was explained by the then Lord Chancellor, the noble and learned Lord, Lord Mackay of Clashfern,
“to provide a modern equivalent of the common law defence of innocent dissemination”.—[Official Report, 2/4/96; col. 214.]
There is no express provision in the Act itself that abolishes the common-law defence of innocent dissemination, and it is clear from paragraph 2.6 of the consultation on the draft Bill, which was published in July 1995, entitled Reforming Defamation Law and Procedure, that, in introducing the Bill into Parliament, the Government intended that the Act, as the then Lord Chancellor said, would supersede, replace and modernise the existing law. The legislation that was eventually passed does not expressly provide for the abolition of the common-law defence, and it is argued that it should not be treated as having done so impliedly.
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The problem is that there is some uncertainty over what the relationship between Section 1 of the 1996 Act and the common-law defence of innocent dissemination amounted to, and where that then sits in the light of the provisions of the Bill. I shall try to give a short explanation of this because of the lateness of the hour and because these arguments were rehearsed at some length in Committee. The Booksellers Association says that booksellers are presently in a disadvantaged position compared with where they were when the common-law defence of innocent dissemination was the defence that they were entitled to. It says that in those circumstances, if booksellers had a book—in those days—on their shelves in which it was claimed a defamatory statement had been included, they were protected if they had the advice of a lawyer who said that there was a defence to such an allegation.
Now, the association says, the position of booksellers is such that when they are challenged in those circumstances—and there is some considerable evidence that they are commonly challenged—by lawyers on behalf of people claiming that the books they are selling contain defamatory information, they are so unsure about their position that it is better just to take the book off the shelf. Given the challenges that booksellers face at the moment, the secondary publishers industry in particular, this can have a significant effect on a bookseller’s ability to be able to continue a business because, as has been explained to me, in those circumstances wholesalers are quite reluctant to take the books back.
The purpose of the amendment is to restore the defence of innocent dissemination, which would put booksellers into the position that they believed they were in prior to the 1996 Act. Alternatively, and this is my second attempt to try to achieve this, to obtain from the Government—from the Minister at the Dispatch Box—a clear explanation for why Section 1 of the 1996 Act is as good, and the provisions of the Bill when it becomes an Act will be as good, as the defence of innocent dissemination. In the Committee debate, I offered that opportunity to the Minister but he did not take it. At the very least, the secondary publishers that the Bill seeks to put into a position of some stability, certainty and clarity are entitled to an explanation from the Government of whether they are in a better position, or even whether, in the Government’s view, the common-law defence still exists. If it does still exist in the view of the Government, that will be of considerable comfort to them.
I apologise to those who have not heard this argument before, but there are precious few of them in your Lordships’ Chamber. They will have to go back to the Grand Committee for the detail, but I know that the noble Lord, Lord McNally, knows this argument well. It has been repeated a couple of times in debates in relation to this Bill, and I ask him on this occasion either to accept that we should restore the position that booksellers were in prior to the 1996 Act or, if not, to explain why not, or if they are in a better, or at least equal position, to explain how that works since it defeats the legal profession and all the advice I have received from those who understand the law. I beg to move.