Lord McNally:
My Lords, I am very grateful for the contributions that have been made. This is not the Bill that my noble friend Lord Lester introduced into this House just over two years ago. It is not the Bill that the Government produced in draft for pre-legislative scrutiny. I am proud that it is a Bill that has gone through every process of political and parliamentary procedure, from a resolution at a Liberal Democrat conference to being an Act of Parliament, if we are successful today. However, this means that people around the House and campaigning groups around the country have not got everything they wanted from this Bill. One of my political heroes was the late George Woodcock, the general secretary of the TUC, who once said that good trade unionism was a series of squalid compromises. I do not suggest that the compromises that we have arrived at thus far are squalid. Nevertheless, when looking at a Bill such as this, it is necessary to remember the various pressures—some of which have been reflected in the useful debate that we have had—before making a judgment about challenging the other place once more.
The noble Baroness, Lady Hayter, raised the matter of cost still being in doubt. I would personally like to have had a clearer position, but we are working through on this. I have given enough assurances that we will make sure that the cost issue is clearly dealt with before this Bill comes into force. There are enough indications of the way that Parliament, Lord Justice Leveson and the CJC want to go that I am pretty confident that we can get a cost protection measure in parallel with the Bill which will satisfy the wishes of this House.
Perhaps I may also deal with an issue that has been raised in a number of interventions, including by the noble Viscount, Lord Colville. We have a dilemma that has happened under successive Governments. It is that what was once a clear line between the public and private sectors is increasingly becoming blurred, wavy, or even dotted. It is not as clear as it once was. I personally believe that at some stage we are going to have to deal with the anomalies created by the blurring of those distinctions and the fact that far more private sector companies carry out public service duties. However, I hope from what my noble friend Lord Lester said, and I said, that there is sufficient argument to say that for the moment we should rest on common law to deal with this matter. I fear that if we try to push too hard to implement this into statute now we will not convince the other place.
On the workings of the Civil Procedure Rule Committee, another matter that the noble Baroness, Lady Hayter, mentioned, it is not true that we will have to wait two years for case management. We are hoping to have guidance on case management in place, as with the costs, by the time that the Bill comes into force later in the year.
Before I move on, I am pleased to see the noble Lord, Lord Browne, in his place. I want to put on record that the noble Lord, Lord Browne and the noble Baroness, Lady Hayter, are a model of constructive opposition in the way they have handled this Bill. I hope that does not ruin his reputation. He will never recover from that.
The noble Lord, Lord May, referred to Committee stage as being a perverse pleasure. I think I know what he means, but it was a pleasure and an honour to have so distinguished a scientist contributing to our deliberations. It is an area which, along with the academic freedom that the noble Lord, Lord Bew, referred to, has been among the things that I have been most concerned that this legislation should try to protect.
The noble Lord, Lord May, referred to the question of Dr Wilmshurst. Another name that has often been referred to has been Simon Singh. They have been the cause célèbre about the deficiencies in our law. I have constantly said to my officials, “How will it be different after our Bill becomes an Act?” It will be different in both those cases. People pursuing them would have to satisfy the serious harm test. The defendants would have the new public interest defence contained within Clause 4 of the Bill. Alongside the Bill we are introducing cost protection measures to provide additional protection to those with limited means. More generally, to support the scientific and academic debate, the Bill also creates a new defence against libel for peer-reviewed material in scientific and academic journals and extends qualified privilege to reports of scientific and academic conferences.
Although I am not sure that we will ever be able to protect everyone from the speculative chilling solicitor’s letter, I hope that people receiving that chilling letter will realise that the law has changed. It has changed to protect them and build in protection for the Dr Wilmshursts and Simon Singhs of the future.
4.45 pm
I have already dealt with the Derbyshire codification. I have been frank with the House—it is a political judgment. For some of the reasons that my noble friend Lord Faulks raised, I do not think I am going to be able to take noble Lords any further on this. There is the fact that companies do have good names. In an earlier life I worked for a public relations company, where we used to earn good money helping companies to develop their corporate reputations. Increasingly, over the years, corporate reputation and social responsibility have appeared in annual reports as something of value to companies. These things have to be taken into account, as well as things like staff morale. So our amendment—which my noble friend Lord Faulks was not exactly enthusiastic about—was not a volte-face, but more a development of thinking.
Again, this is rather like trying to establish a border between private and public. Throughout this, and as the law develops even after this Bill becomes an Act, we will find that balance in protecting against the bullying to which my noble friend Lord Phillips and others referred, between does it take place and it should not take place. With regard to corporate reputation, it is disgusting and disgraceful of large corporations
to use those kind of tactics. But there will always be the question of how we protect against bullying. How do we recognise the points that my noble friend Lord Faulks makes, that there is a real value to the loss of reputation that has to be recognised as well? As he rightly says, and as I explained in my remarks, the courts are already, to use his phrase, patrolling the borders of Derbyshire. As I said in introducing this, the Derbyshire principle was established before the passage of the Human Rights Act. The issue of whether it would extend to a body falling within the definition of a public authority under Section 6 of the Act is not one that is being tested before the courts. It is therefore not possible to predict the view the courts would take were this issue to be raised.