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Lords Chamber

Volume 743: debated on Tuesday 5 February 2013

House of Lords

Tuesday, 5 February 2013.

Prayers—read by the Lord Bishop of Bath and Wells.

Taxation: Tax Collection


Asked by

To ask Her Majesty’s Government whether they have sufficient resources and staff in place for the full collection of tax.

My Lords, this Government are investing in HMRC so that it will collect £9 billion a year more from its compliance activities by 2014-15 than at the start of this Parliament. The number of HMRC staff in compliance roles fell under the previous Government. Under this Government there will be around 2,500 more staff tackling tax avoidance and evasion.

My Lords, given that the Public Accounts Committee found that £1.1 billion was lost to the Treasury by foolishly cutting 3,300 staff from the compliance and enforcement unit of HMRC, can the Minister give us a greater assurance that that folly will not be repeated, especially with the new comprehensive policy that has been announced on offshore tax evasion? Will the Minister say when that will be published, what its focus will be, and whether that, too, will be properly resourced to do the job that is required of it?

My Lords, it is important to recognise that the big cut in staff in HMRC took place before 2010. The number of staff fell by 25,000, and 10,000 staff working in compliance roles—that is, the very staff about whom the noble Lord is concerned—were cut during that period. We have added 2,500 staff in that area since we came in and they are generating a very significant amount of additional funding. On international tax evasion and avoidance work, a whole raft of initiatives is under way. There is a new unit within HMRC and we are working very closely with the OECD. I am sure that a number of further announcements in this area will be made during this calendar year.

My Lords, the 2010 comprehensive spending review committed HMRC to improving the customer experience. However, in December last year, the National Audit Office concluded that customers were still not getting a good service. For example, last year 20 million calls went unanswered and there was a cost of £33 million in phone charges to customers kept hanging on. Will the Minister say whether HMRC intends to increase staffing and resources to address this problem?

My Lords, HMRC has a target of answering 90% of calls. It was more than achieved in the third quarter and was certainly a better performance than that achieved in some earlier parts of the year. An example of the challenge that HMRC finds itself facing in this respect is that the number of calls that it gets per day ranges from 86,000 to 3.2 million on a peak day. Either a very small number or a very large number of people phone, and it is unsurprising that on a small number of days it is impossible to reach the 90% target. However, HMRC has put more resource in. It has upgraded the equipment and, as I said, the 90% target has been more than met in the last quarter.

My Lords, when he assumed office, the Chancellor of the Exchequer commissioned a study on the creation of a general anti-avoidance regime. The committee that performed that study reported two years ago. When are the Government going to do something about it?

I am surprised that the noble Lord does not know that the Government are committed to introducing a general anti-abuse rule in this year’s Finance Bill.

My Lords, the Government could do with fewer tax inspectors if they simplified the tax system. How are they doing on that?

My Lords, I think everybody agrees that we have a particularly barnacle-encrusted tax system. This Government have set up the Office of Tax Simplification, which has started work in this area. One advantage of the general anti-abuse rule is that once such a rule is in place, it should not be necessary to introduce as much new tax legislation to deal with tax abuse, because the general rule will cover it.

My Lords, will the legislation include a definition of aggressive tax avoidance as compared with ordinary tax avoidance?

My Lords, will the Minister help me? I have heard conflicting figures for staffing at HMRC. Can he tell me the figures for the total staffing complement over the past three years, as well as give me the breakdown between individual areas of work?

My Lords, the staffing level at HMRC fell from about 94,000 to 66,000 under the previous Government. Under the comprehensive spending review, it is due to fall by about another 10,000. While that is happening, there will, as I said, be an increase of about 2,500 for compliance. There will therefore be a shift towards more compliance against a backdrop of a significant change in the way in which people submit tax returns. In 2010 only 42% of corporation tax returns were submitted online, but in 2011-12 that number had increased by 96,000. As I have said before, the number of staff you need to process that kind of activity has fallen considerably because they are no longer dealing with paper returns.

My Lords, will my noble friend think again about the answer that he gave to the noble Lord, Lord Barnett? The noble Lord asked a perfectly simple and straightforward question and it deserves a rather better reply.

My Lords, my reply would be that the Government are cracking down very hard on tax evasion and tax avoidance. We are putting more resources into this area. We are submitting more cases for prosecution and are having more successful prosecutions. The key question is: what is the outcome on the ground? Are more people who avoid and evade tax being taken to court, and are abusive practices being cracked down on? Yes, they are.

Ministerial Code


Asked by

To ask Her Majesty’s Government whether they will review the arrangements for enforcement and monitoring of the Ministerial Code.

My Lords, the Prime Minister is the ultimate judge of the standards of behaviour expected of a Minister and the appropriate consequences of a breach of the standards set out in the Ministerial Code.

My Lords, now that it has been clearly established that the Cabinet Secretary, Jeremy Heywood, totally failed to carry out a full inquiry into the Mitchell affair, by discarding the evidence and in doing so, perpetrating a huge injustice on Andrew Mitchell, the former government Chief Whip, is it not now time to transfer the responsibility for carrying out inquiries into alleged ministerial transgressions from the Cabinet Secretary—indeed, anybody in Downing Street—to the Parliamentary Commissioner for Standards for Commons’ Ministers and to the Commissioner for Standards in the case of Ministers in the House of Lords? Surely we all recognise that all Ministers are Members of Parliament and should be subject to rules set by Parliament.

My Lords, I remind the noble Lord that the Cabinet Secretary’s recommendation to the Prime Minister was that the e-mails were unreliable evidence and that Andrew Mitchell should stay in post. In the evidence that he gave to the Public Administration Committee on 10 January, he said:

“My report to the Prime Minister basically said that there were some inconsistencies and inaccuracies between the account in the e-mails and what I could see in the CCTV footage. What was fundamental was the conclusion, which was that you could not rely on these e-mails to terminate Andrew Mitchell’s career”.

What then followed was a continuing press campaign, possibly with others involved, that led to Andrew Mitchell later offering his resignation.

My Lords, does my noble friend regard it as really satisfactory that the allegations of misbehaviour by the Metropolitan Police in respect of Mr Andrew Mitchell are being investigated by the Metropolitan Police?

My Lords, I need to be very careful about commenting on an ongoing police investigation. Given that the investigation is ongoing, I will say that I note the noble Lord’s concern.

My Lords, under the Ministerial Code, Ministers are responsible for their special advisers. In the Sunday newspapers there were allegations that the special advisers of the right honourable Michael Gove MP might have been acting improperly. If that were to be the case, what would be the consequences for the Secretary of State?

The noble Baroness will be aware that allegations of this sort arise from time to time. She will remember the case of Damian McBride in the previous Government. On the whole my experience in government is that special advisers work very well with their Ministers, but the Ministerial Code is quite clear that special advisers are appointed by Ministers, subject to the Prime Minister’s approval, and are accountable to their Ministers. If they behave outside their responsibilities, it is their Ministers who should hold them to account.

That does not seem to square with what happened in the case of Jeremy Hunt if, as the Minister has just said, Ministers are responsible for the activities of their special advisers. We had a Secretary of State acting in what was described as a quasi-judicial capacity who was clearly and demonstrably sympathetic to one side rather than the other in a very important ministerial decision. Surely it is an odd conclusion that the special adviser should lose his job and the Minister should not only remain in his job but be promoted.

I am not fully aware of exactly what happened in that case, and I am fully prepared to write to the noble Lord if I can get some further information. Of course, if special advisers operate beyond what the Minister has asked them to do, they must take responsibility as the Minister requires.

My Lords, will the Minister address himself to the Question put so succinctly by the noble Lord? Should there not be, outside of government, a way of dealing with complaints against Ministers, which is equal to how Members are dealt with in this House and in the other place?

My Lords, at that point we begin to get into fundamental constitutional issues about the relationship between the Executive and Parliament. While preparing for a Question on collective responsibility that will come up next week, it occurred to me that this was something over which we fought a civil war in the 17th century and then had a further revolution in 1689. However, we never quite resolved the question of how far it is the Executive who have independent authority or how far Parliament is able to assert its sovereignty over the Executive.

Is the Minister aware that Parliament was invented to control government and not to serve it, and therefore that it is perfectly proper for Parliament to have a view on these issues and to try to change them?

It is perfectly possible for Parliament to have a view. Having read several recent reports by the Public Administration Committee and the Public Accounts Committee of the House of Commons, I can say that Parliament makes its views felt extremely actively and frequently.

May I ask my noble friend the Minister whether the Government are considering changes to the Ministerial Code in the light of the Leveson report, or whether they are putting their energies into achieving an agreed code of practice that would apply both to Ministers and the opposition Front Bench, in order to ensure the transparency of future relationships between all leading politicians and senior media executives, as recommended by Lord Justice Leveson?

My Lords, the Ministerial Code now makes it clear that Ministers should report their meetings with all interested parties—which clearly includes those covered in this part of the Leveson report concerning media proprietors, newspaper editors and senior executives—so such meetings should be covered by the Ministerial Code.

My Lords, is the Minister aware that the Ministerial Code in Scotland is so narrow and lax that the First Minister gets away regularly with lying to Parliament—and other transgressions?

I will tell noble Lords about the transgressions later. Seriously, do we have any reserved powers to look at the Ministerial Code in Scotland and tighten it?

My Lords, I am not sighted on that supplementary question, but I look forward to the enjoyable evening on which the noble Lord, Lord Foulkes, tells me about the transgressions that he feels have happened in the Scottish Executive.

Food: Banks


Asked by

To ask Her Majesty’s Government how many official visits to food banks have been made by Ministers of both Houses since May 2010.

My Lords, Ministers meet a wide range of organisations and individuals at locations all over the country. There is no central record of visits to food banks since May 2010 but I can inform noble Lords that, in their official capacities at Defra, my noble friend Lord Taylor of Holbeach and Caroline Spelman both made visits to FareShare in 2011, that my noble friend Lord Taylor and I have both visited FoodCycle, and that I will soon visit FoodCycle again.

I am sure that the Minister will agree that the volunteers working in food banks provide an essential support service for people in poverty. Will the Minister comment on the fact that from April there will be savage cuts in the welfare budget, estimated at some £3 billion, which will hit the incomes of the poorest in our society, while at the same time there will be £3 billion-worth of tax handouts for the better off? Do the Government have any contingency plans to provide extra support for the voluntary organisations running food banks so that they will be able to cope with the inevitable extra needs that will be created?

First, I absolutely echo the noble Lord’s welcome for the work done by the volunteers who work in these wonderful charities. We know that families are seeing the price of their weekly shop increase. The impact of food price inflation is a real concern to us. Food prices are affected by global drivers such as world food prices, oil prices and exchange rates. In answer to the noble Lord’s supplementary question, there are several schemes that help people, especially children, get a nutritional diet, including Healthy Start and the school fruit and vegetable scheme.

Will my noble friend outline any plans the Government have to encourage the food industry to divert surplus food to organisations such as FareShare, which help feed local people and contribute to meeting the Government’s target of no food waste going to landfill?

My noble friend asks an apposite question. As I have said, we thoroughly support the work of charities such as FareShare and FoodCycle, which work with the food industry to ensure that surplus food is distributed to people who really need it. Defra Ministers held a round-table meeting with retailers and food charities in July to explore the barriers to food redistribution. They also considered an outline proposal from FareShare and FoodCycle that seeks to make redistribution easier for both charities and retailers. This proposal would build on the partnerships that most major retailers already have with redistribution charities.

My Lords, does the Minister accept that an increasing number of people who are in work are resorting to food banks? The CAB has identified this as a result of high interest rates combined with low wages and insecure work. In these circumstances, what will the Government do about introducing a living wage?

My Lords, the noble Lord is absolutely right that we need to help the poorest in our country. That is why, over the past two years, the Government have provided grants of around £2 billion to help freeze council tax; the fuel duty increase that was due to take effect on 1 January was cancelled and the increase planned for 1 April deferred until 1 September; and we have lifted the personal tax allowance and taken 2 million of the lowest-paid people out of tax altogether. It is, of course, why we have the Healthy Start and school fruit and vegetable schemes. It is also good news that on 23 January we learnt that employment is up by 90,000 and that the rate of job growth last year was the fastest since 1989.

My Lords, the Minister said that the duty of the Government is indeed, as I am sure we would all agree, to help the poorest in the land. Following the Question of my noble friend Lord Dubs, how does the Minister reconcile that statement with the fact that, from April onwards, some of the poorest families in the land, including something like 1 million children, will lose £40 to £60 per week, over time, from their benefits? What estimate has the Minister made of how many of those families will need to go to food banks in order to survive until they get their payment at the end of the month?

My Lords, with respect to the noble Baroness, we are straying a little from food banks. The difficult economic situation is having an impact on everyone, including workers, who find their wages either being frozen or increasing only by small amounts. The Government have protected poor and vulnerable groups as far as possible while undertaking the urgent task of tackling the fiscal deficit. Work remains the best and most immediate way out of poverty, and we have continued to prioritise providing the best possible work incentives through welfare reform and increasing the personal allowance.

My Lords, food banks are usually used in an emergency to stave off hunger. However, there is a risk that people with no other source of food will become reliant on them, including the 60% of those who use them who are already in work. Will Her Majesty’s Government ensure that welfare reform does not leave families more at risk from hunger?

My Lords, we have heard about the increasing reliance on food banks from a number of noble Lords. We know that a quarter of parents put food back when they get to the checkout in the supermarket because they are struggling with rising prices and falling wages, and that the hereditary poor are increasing again. Will the Minister agree to visit a local food bank with me so that we can thank its volunteers together and ask the recipients whether they are in work and what is their view of benefits reform under this Government?

My Lords, as I said in my initial Answer, I shall shortly be visiting FoodCycle. I agree with much of what the noble Lord says.

I note, in passing, that FoodCycle is not a food bank. Would the Minister be interested to know that, during the years of the Major Government, my staff in my former constituency of Bristol East never once received a phone call from anyone in work, in floods of tears, because they could not afford food? I gather that now happens routinely on his watch. Will he please tell us not that he is concerned about poor people who do not have enough food, but what he is going to do about it?

My Lords, in answer to the noble Baroness’s first question, we know that these organisations are part of a complex and community-led response to these issues. There is a range of food aid provision, from very small local provision through to national charities working on the redistribution of food. We welcome the actions of all these organisations working locally in the community to help meet local needs. Of course we are concerned about those who need to turn to charities for food, but we should not suggest that the work of such organisations or the need to help and support the most vulnerable in our society is a recent phenomenon. The use of food banks went up 10-fold under the previous Government.



Asked by

To ask Her Majesty’s Government whether they plan to introduce legislation in this Parliament to establish the Public Forest Estate management body proposed in their response to the Independent Panel on Forestry’s Final Report.

My Lords, subject to parliamentary time, the Government will look to introduce legislation at the earliest opportunity in order to establish the new independent body to manage the public forest estate and hold it in trust for the nation. I declare an interest as a woodland owner.

My Lords, I hope the whole House will join me when I thank the Government for the good sense in what they call their “refreshed” forestry policy, when I thank the Independent Panel on Forestry, under the excellent chairmanship of the right reverend Prelate the Bishop of Liverpool, and when I congratulate all those people who rallied some two years ago when they felt that their local forests and woods were under threat.

Does the Minister agree that, following the despair and fear there was at that time, there is now hope and expectation about the future of our public forest estate, to be held in trust for ever for the people of this country, and that there is a real enthusiasm for the Government getting on with their new, refreshed forestry policy, certainly during this Parliament?

Yes, my Lords, we are committed to keeping the public forest in public hands, to maintaining and improving public access to our woodlands, and to increasing woodland cover very substantially over the next 50 years. Everyone has a role to play in managing our woodlands better, as well as in increasing woodland cover. Noble Lords will know that all Governments zealously guard the contents of the Queen’s Speech and these are not divulged in advance. What I will say is that the Government fully intend to do this, and to do it expeditiously.

My Lords, I, too, join the noble Lord in thanking the Government for their U-turn on forestry, which is very welcome. But it is incumbent upon us now to make sure that the new architecture is right and fit for purpose. I have my doubts as to whether we will see legislation in this Parliament. Therefore, the Forestry Commission is going to have to ensure that the forest estate is kept in a suitable state for it to be handed over to the new body. Bearing in mind the massive cuts that the Forestry Commission has had of late, will the Minister give me an assurance that there will be no further redundancies and cuts in the budget of the Forestry Commission?

My Lords, what I will do is confirm that we will support the Forestry Commission to the level required to secure the long-term success of it and its successor. This long-term success includes enabling it to become more financially sustainable through the increased generation of trading income. We have put back £3.5 million into the Forestry Commission’s budget next year specifically to make up for the income that would have come from sales of woodland. We have allocated £2 million to the Forestry Commission to recognise additional pressures arising from Chalara and the importance of implementing the commitments in the IPF response. We will continue to provide funding to ensure that the public can access their public forests and woodland over the remainder of the current spending review period.

Does my noble friend not agree that with four bodies already dealing with forestry, one more is really one too many?

My Lords, I do not think we are going to have one more, save that we will effectively split the management of the public forest estate away from what Forest Services does.

My Lords, I, too, welcome the Government’s commitment to keep the public forest estate in public ownership and I salute all those campaigning organisations that did a splendid job in changing the mind of the Government. Like my noble friend, I am concerned about the forest estate as it is now. Recently, Ministers have quietly cut 500 Forestry Commission staff and a quarter of the budget, and the admirable chair of the Forestry Commission has resigned. My noble friend quite rightly asked for an assurance from the Minister that there will be no further cuts in the staff of the Forestry Commission. Will the noble Lord answer that specific question?

My Lords, we recognise concerns about the future funding of the estate. However, we continue to face very challenging financial circumstances, requiring hard choices to be made across the whole public sector. The Forestry Commission and the public forest estate have had to bear their share of the cuts that we have had to make to bring public spending under control. Nevertheless, we want to ensure that the public forest estate can continue to provide a high level of public benefits. We are therefore carefully considering the estate’s financial needs for the long term. In particular, we want to place it on a secure financial footing for the future by enabling it to generate as much income as possible through its commercial activities without having to resort to unsustainable land sales to make ends meet.

My Lords, like my noble friend, I declare an interest as a forestry owner. Does he agree that the present situation, under which the Forestry Commission is my competitor but also my regulator, is intolerable, and will the new arrangement reverse that situation?

Has the Minister ever experienced any conflict of interest by being both a Defra Minister and a woodland owner?

Can my noble friend explain why the Government are trying to get rid of tree preservation orders, which was announced as part of the Red Tape Challenge on the same day that they announced their very welcome policy on forestry?

My Lords, as part of the Red Tape Challenge, tree preservation order regulations have been included on the website. We are not saying that we want to get rid of the regulations or protection for trees. It is a chance for the public to tell us which regulations are working, which are not, which should be scrapped, which should be simplified and what can be done differently.

Statutory Instruments

Membership Motion

Moved by

Motion agreed, and a message was sent to the Commons.

Immigration and Nationality (Fees) (Amendment) Order 2013

Motion to Approve

Moved by

That the draft order laid before the House on 19 December 2012 be approved.

Relevant document: 15th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 29 January.

Motion agreed.

Control of Donations and Regulation of Loans etc. (Extension of the Prescribed Period) (Northern Ireland) Order 2013

Motion to Approve

Moved by

That the draft order laid before the House on 5 December 2012 be approved.

Relevant document: 15th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 29 January.

Motion agreed.

Civil Enforcement of Road Traffic Contraventions (Representations and Appeals) (Wales) Regulations 2013

Motion to Approve

Moved by

That the draft order laid before the House on 19 December 2012 be approved.

Relevant document: 15th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 29 January.

Motion agreed.

Scrap Metal Dealers Bill


Report received.

Defamation Bill


Amendment 1

Moved by

1: After Clause 1, insert the following new Clause—

“Arbitration Service for defamation and related civil claims against members of Independent Regulatory Board

(1) The Lord Chief Justice shall establish a Defamation Recognition Commission.

(2) Schedule (Recognition Commission) makes provision relating to the Defamation Recognition Commission.

(3) The Defamation Recognition Commission shall certify bodies as Independent Regulatory Boards in accordance with the criteria in Schedule (Recognition Commission).

(4) An Independent Regulatory Board shall provide a recognised arbitration service as set out in Schedule (Specialist Arbitration Service).

(5) A court shall take into account when awarding costs and damages whether either party, claimant or defendant in a dispute has chosen not to use the recognised arbitration service of an Independent Regulatory Board.

(6) A court shall award costs under subsection (5) on an indemnity basis unless the interests of justice require otherwise.

(7) A court may order a successful party to pay all the costs of proceedings if such party has unreasonably refused to use an available recognised arbitration service.

(8) A court awarding in its judgment exemplary damages where a defendant is guilty of a flagrant breach of a defendants rights, can also take into account whether—

(a) a claimant refused to use a recognised arbitration service;(b) a defendant refused to use or join a recognised arbitration service;(c) the court shall also take into account whether a defendant first sought advice from a recognised Independent Regulatory Board before publication.”

My Lords, I shall speak to Amendments 1, 24 and 25 and associate myself with those tabled by the noble Baronesses, Lady O’Neill and Lady Hollins.

Four months have passed since the Second Reading of this Bill—

My Lords, I ask those who are leaving the Chamber to, as a courtesy to the noble Lord, do so quietly.

My Lords, four months have passed since Second Reading; two days earlier, on 7 October, the Prime Minister had committed to implement the Leveson recommendations so long as they were not, as he put it, “bonkers”. Since returning from the Christmas Recess, I do not believe myself to be the only Member of your Lordships’ House to have felt a little like the principal characters in Samuel Beckett’s tragicomedy Waiting for Godot. As your Lordships will remember, they came even to contemplate suicide—anything, as they put it,

“to hold the terrible silence at bay”.

These amendments are designed to break that terrible silence.

Like my fellow signatories I was moved to act following the remarkable display of unity mixed with frustration that typified the delayed debate on the Leveson inquiry that was held in your Lordships’ House on Friday, 11 January. This mood was, I felt, brilliantly summed up by my noble friend Lord Alli when he concluded:

“I … say to my fellow Back-Benchers on all sides of the House that leadership … does not always come from … the Front Benches. We, too, have our role to play … this would … be a good time to intervene on timing. If we believe that the recommendations of Lord Justice Leveson require action, we on the Back Benches in this place have a … constitutional role to play in making that happen”.

He went on to say:

“There is an onus on us to ensure change. In doing so, we can help to restore trust in the press, in the police and in … Parliament”.—[Official Report, 11/1/13; col. 381.]

He is right, of course. I believe that we, as active Members of this House, have an obligation to act, and to be seen to act, on behalf of victims past, present and future.

I am no lawyer, but my concern to create movement has been enormously buttressed by the support of the noble and learned Lord, Lord Mackay of Clashfern, the noble Baroness, Lady Boothroyd, and the noble and learned Baroness, Lady Scotland, all of whose exemplary careers and knowledge more than compensate for my legal and constitutional inadequacies.

The Bill before us contains a fatal flaw: it does not deal with the manner in which ordinary citizens will be able to utilise the protection that it offers. The Bill has been drawn up with the help of newspapers, which understandably see the world through their own looking glass. Anyone who reads the Bill as it stands will not find so much as a hint of the fact that we live in a country that has spent much of the past two years debating the fall-out directly attributable to the unaccountable power of newspapers over our public life and over the lives of ordinary citizens. It is almost as if Leveson never happened.

In his reply, the noble Lord, Lord McNally, might wish to recall the absurd situation that he and I were placed in 10 years ago when we were asked to scrutinise the then Communications Bill but not to debate or discuss the implications of the emerging digital world. That was pushed safely back into the “too difficult” drawer. We have all looked a little daft ever since. These amendments seek to address those real-world concerns. They put into effect an arbitration system that would allow ordinary people to get redress if they are defamed under the new definitions that we are passing into law within the body of this Bill.

The Bill may deal with some of the perversities of the current libel system, which is largely to be welcomed, and it can be reasonably expected to lead to fewer defamation actions against newspapers. However, for the citizen who has a case in law that suggests they have been wronged by the press, the Bill has absolutely nothing to say about access to justice or the costs of seeking that justice in the courts, all of which is plainly unaffordable except for the very wealthy. After everything that we heard at the Leveson inquiry, the problems of access to justice and to remedies are far too important to be left unresolved. It is fundamental to the issue of balancing the rights of the citizen against the rights of the press; it cannot continue to be overlooked or shoved off to form part of some future piece of legislation.

Fortunately for us, Lord Justice Leveson has already proposed a ready-made and carefully considered solution. The advantage of our simple amendments is that they closely follow those recommendations, which laid out exactly the way in which this system of low-cost arbitration should be introduced to deal with legal disputes involving newspapers. They also have the merit of showing that the arbitration service proposed by Lord Justice Leveson can be put into effect in a remarkably simple and straightforward manner.

After his exhaustive and searching inquiry into the newspapers and their relationship with politicians, Lord Justice Leveson’s written recommendations said that the board, by which he means the new independent self-regulation body to be set up by the newspapers,

“should provide an arbitral process in relation to civil legal claims against subscribers, drawing on independent legal experts of high reputation and ability on a cost-only basis to the subscribing member. The process should be fair, quick and inexpensive, inquisitorial and free for complainants to use (save for a power to make an adverse order for the costs of the arbitrator if proceedings are frivolous or vexatious). The arbitrator must have the power to hold hearings where necessary but, equally, to dispense with them where it is not necessary. The process must have a system to allow frivolous or vexatious claims to be struck out at an early stage”.

That is the system that these amendments seek to put into effect. It also happens to be the system for which the newspapers have shown broad support, and it closely resembles the system welcomed by the noble Lord, Lord Hunt of Wirral, who is holding the national newspapers’ negotiations with the Government. In his evidence to the Leveson inquiry, the noble Lord said:

“It could prove extremely valuable to the UK system of self-regulation if such a provision could be inserted as an amendment to the current government Bill”.

He went on to say:

“I do not believe this in any way crosses a ‘red line’ for those of us who have serious qualms about a statutory regulator”.

The newspapers also know only too well that an arbitration service could save them collectively hundreds of millions of pounds a year in legal costs.

It goes without saying that the arbitration service would not be everything that Leveson recommends, but it is the element of Leveson that cannot happen without the support of Parliament. The courts and the newspaper industry are unable simply to set up their own. Without statutory authority, the courts would not be able to give preferential treatment to those newspapers that used the low-cost arbitration service. That is why the newspaper industry and the courts need our help, which I believe is provided by these amendments. Parliament would be giving power to the courts, and in doing so would be giving recognition to the newspapers’ own independent self-regulation body. Parliament would not—I repeat, not—be taking any new powers unto itself.

The amendments offer us the opportunity to break the logjam that would appear to have afflicted both the talks between the newspapers and the Government and the talks between the three main political parties themselves. At the very minimum, we would have the opportunity to make justice in disputes with newspapers quick and affordable. Now that the issue of cost protection in court actions regarding defamation has been referred to the Civil Justice Council, the Government at present have no declared policy on how they intend to ensure that the defamation courts are open to citizens of ordinary means. If the Government struggle to accept these amendments, then, in a positive spirit, I hope that the Minister can tell us what the Government’s policy in this respect will be and when that might come about.

In asking the House to support these amendments, I also ask noble Lords on the government Front Bench to consider the visible choice that is opening up ahead of them: either to support an arbitration service set up by the newspapers themselves that is all of a piece with the system recommended by Lord Justice Leveson, or to maintain a government position that, when it comes to it, amounts to nothing much more than a refusal once again to allow access to justice for anyone other than the wealthy, the powerful and the influential. I know the Minister far too well to believe for a single moment that that is his intention, but that is the way in which the present Bill, if left unamended, is more than likely to be interpreted. I beg to move.

Amendment 1A (to Amendment 1)

Moved by

1A: After Clause 1, line 9, leave out “in accordance with” and insert “provided that they satisfy”

My Lords, I have put my name to this amendment to Amendment 1, moved by the noble Lord, Lord Puttnam, because it is urgent to establish an effective, affordable and independent route for resolving claims of defamation. In doing so, I declare an interest as chair of the Equalities and Human Rights Commission. Unlike my noble friend Lady Hollins, who also brings the expertise of experience of intrusion and defamation to this debate, I bring only a track record of speaking and writing on the conflict between rights to freedom of expression and other rights, including the right to reputation.

I do not think that it is a matter of dispute that we need a cheap and effective way of resolving claims of defamation. However, the mechanism for resolving such claims needs also to be fair, and that means that it has to be independent not only of the interests of both parties but also of the Government. The noble Lord’s amendment seeks to achieve that. I think that this amendment to the amendment would do so rather more effectively; it is at least more explicit, which enables your Lordships to consider what it would actually take to achieve independence in this matter.

Both amendments build on Lord Justice Leveson’s proposal to create an independent recognition commission that will validate the standards to which any voluntary regulatory body for the media works. Lord Justice Leveson’s proposal is, as we all recognise, ingenious because it offers a way of retaining media self-regulation while requiring that self-regulation to meet adequate standards of fairness and independence as certified by a recognition body. The amendment sets out incentives for media organisations to participate in a voluntary regulatory body—it will be much cheaper for them if that body is recognised by an independent recognition body—and it also sets out incentives for claimants to use the arbitration service. Again, it will be cheaper and quicker.

The complaints system run by the PCC—or should I perhaps say the former PCC?—was in many ways cheap to use, but it had a range of deficiencies, which have been much discussed in your Lordships’ House and in Lord Justice Leveson’s report, and it lacked that crucial form of independence. I do not think that we should pass a defamation Bill that fails to address these fundamental defects. The connections between intrusion and defamation are too close for us simply to overlook them.

The detail of these amendments and of Schedule 17 is complex, although they have been much discussed by those with the relevant drafting expertise. I do not think we are likely to come much closer to satisfying the requirements of all parties. I hope very much that the Minister can indicate that the Government will accept these amendments or at least can indicate that their fundamental purpose will be secured by government amendments at Third Reading. I beg to move.

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.

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.

My Lords, I was going to say “Mr Speaker”, but I will not. I do not intend to follow entirely all the points made by my noble friend Lord Lester, but I agree with him that this does not entirely give effect to the Leveson report, and nor could it, given the confines of the Defamation Bill. The amendments do not deal with the complaints process or, more to the point, the way in which any complaints process is periodically verified. On the other side, it does not set down a legal duty on the Government to protect the freedom of the press.

The questions are whether the amendment can be seen as a building block in implementing Leveson—a kind of stalking horse, although perhaps we have enough stalking horses flocking around just at this moment—and whether it deals with some of the evils or disadvantages, one in particular, that Lord Justice Leveson exposed. My noble friend Lord Lester obviously prefers the solution of his own Private Member’s Bill. I do not entirely disagree. I think it would be an excellent Bill. I just think that the chances of it being passed are practically zero, so I do not regard it as a realistic option. If we reject this proposal, I do not think that the Government are going suddenly to fall over and say, “Well, Lord Lester, you can go ahead now with your Private Member’s Bill and we will put all our effort behind it”. I just do not think that that is realistic. The answer is that this Bill gives many of the advantages that we want.

One of the long-standing complaints about dealings with the press is that a serious complaint to the editor fails, as it often does, and then the only option is legal action. But most of us would take the view that a libel would have to be absolutely fundamental to persuade us to take legal action. The outcome is far too uncertain and the cost is only too certain. That is why legal action is all too often seen as a remedy open only to the rich.

Lord Justice Leveson considered this question and set out quite clearly his view at paragraph 66 of the summary. He said that there was a “need for incentives” to persuade publishers to join the new procedure but that, in addition, there was a need for,

“the equally important imperative of providing an improved route to justice for individuals”.

That had led him,

“to recommend the provision of an arbitration service that is recognised and could be taken into account by the courts as an essential component of the system, not (as suggested by Lord Black) simply something that could be added at a later date”.

He said that it was “an essential component”. That is precisely what it is.

Also, the amendment clearly puts the intention into practice. I do not intend to go into all the detail of it, some of which can doubtless be improved, including by meeting some of the points about drafting made by my noble friend. We can come to those. The important thing is that the principle has been recognised, and the amendment gives us the opportunity to vote on this matter and serve notice on the Government that this is one of the areas where we want progress.

There are two other reasons in favour of the amendment. First, the Leveson report was published at the end of November. Since then, we have waited and waited for action, but, instead, some newspapers, sensing a weakness of intent, have continued to attack Leveson in the most lurid and extreme manner, and often quite inaccurately. Perhaps I may quote from this morning’s Sun editorial, commenting on the Chris Huhne case. It states:

“Those urging a Leveson law to muzzle the Press should reflect hard on yesterday’s … events”,

and adds, “No wonder” the Deputy Prime Minister,

“backs a law to silence newspapers”.

The Sun goes on to say that,

“in the post-Leveson climate, many at Westminster want papers stopped from investigating scandals like this”.

One wonders who these “many” people are. Frankly, I do not know of any people who want to muzzle the press and prevent the exposure of scandals. While I think it is the biggest nonsense to propose that that is the case, I also think that people want some redress when they are the victims of injustice. That is what the public actually want.

I very much hope that by passing the amendment, which would set up an arbitration service, as proposed by Leveson, it would at once establish the truth of Leveson—that it is to the benefit of the public, and as the noble Lord, Lord Puttnam, has said, to the benefit of the press. Indeed, the amendment is quite obviously to the benefit of the press. In other words, it inserts truth for the kind of smears that we have been all too used to over the past months.

The second reason why I support the amendment is because the present way of dealing with the Leveson proposals is woefully inadequate. It has brought nothing forward, although everyone at the time said how urgent it was to make progress. The process itself is open to severe objection. In paragraph 84 of Leveson’s report, he says,

“The suggestions that I have made in the direction of greater transparency about meetings and contacts should be considered not just as a future project but as an immediate need, not least in relation to interactions relevant to any consideration of this Report”.

“Greater transparency” is not exactly how I would describe what has been happening over the past two and a half months since Leveson reported. We hear mutterings about a royal charter, but there has been no attempt whatever to engage the public or, for that matter, very many politicians in this discussion. Doubtless, a magic circle of them has been engaged, while the press itself shows an almost total lack of inquisitiveness about what is going on. It is such a contrast to what happens in almost every other area where the press is for ever trying to find out what is going on. In this case, it does not seem to be trying to find out what is going on at all.

I say simply to my own Front Bench that in the circumstances of this “news blackout”, with no assurance that the Government intend to act sensibly, I can see no objection whatever to this House suggesting to the Commons a sensible path that I think would have the support of the public. The amendment is good for the press. Above all, it is good for the public, and I support it.

My Lords, I spoke in the debate on the Leveson report, so I shall certainly not weary the House this afternoon. Let me start by saying that I take no pleasure in what has befallen the newspaper industry in the past few years. I am sure that no one wants to see journalists facing criminal charges, but who among us is proud of the way in which newspapers are now perceived? I believe that the amendments before us would help the newspaper industry to re-establish itself as that trusted investigator it once was, bringing the news to the nation fearlessly and accurately and holding us all to account.

I said in my speech during the Leveson debate that many of the transgressions happened because of the culture of some newspapers whereby they grew to believe that they were untouchable. It is that culture that must be changed. It can be done with the establishment of a new complaints procedure for the public which, as the noble Lord, Lord Fowler, touched on, allows problems and issues with the press to be nipped in the bud at an early stage and dealt with.

We need a system that allows the citizen to raise their complaint in a low-cost and non-adversarial way. Newspapers must be required to meet and hear those with appropriate complaints against them. A robust arbitration service will, I am sure, help to change the culture of newspaper reporting and improve on the current mentality that everything and everyone is fair game for them.

This Government and all previous Governments over the past 60 years should have taken action and never did. Yet after seven royal commissions or parliamentary inquiries and the spending of a lot of public money, it will no longer suffice to be told that there will be an announcement “tomorrow”. It reminds me of the very famous line in “Gone with the Wind”: “Tomorrow is another day”. We have run out of tomorrows— tomorrow never comes.

It is today that we have to deal with, and it is today that your Lordships must take action. This House must step forward and help our leaders to take the action that they themselves have found difficult. Passing these amendments now does not prevent the Government improving on them should they choose to do so—as the noble Lord, Lord Fowler, said, they are a sort of building block—but the amendments say quite clearly that time has run out and we must take action this very day. I hope that the House will support them.

My Lords, for those of us who were involved in the Committee stage of the Defamation Bill, this is a surprising and exciting development on what might have been regarded as some of the more dry amendments that were then before the House. However, it is important—I declare an interest as a practising barrister with some experience of the law of defamation—that we bear in mind that this is an amendment to the Defamation Bill. It should not be thought that all claims by those who say they have been defamed result in full-scale trials. Thanks largely to the intervention of the noble and learned Lord, Lord Woolf, and the Civil Procedure Rules, and to initiatives by the noble and learned Lord, Lord Irvine, by way of protocols, much has been done to improve the way defamation actions are heard.

I am sure that the House would like to know about the protocol that currently exists in relation to defamation. Parties are encouraged to,

“consider whether some form of alternative dispute resolution procedure would be more suitable than litigation, and if so, endeavour to agree which form to adopt”.

They may be,

“required by the Court to provide evidence that alternative means of resolving their dispute were considered. The Courts take the view that litigation should be a last resort, and that claims should not be issued prematurely when a settlement is still actively being explored. Parties are warned that if the protocol is not followed … the Court must have regard to such conduct when determining costs”.

That is very much along the lines of the amendment, but the end of the protocol contains a very important proviso that says:

“It is expressly recognised that no party can or should be forced to mediate or enter into any form of ADR”.

As my noble friend Lord Lester pointed out, that is partly because of Article 6 of the convention. I appreciate that this amendment is to do with building blocks or stalking horses and so forth. Yet it is, I respectfully submit, contrary to the European Convention and out of synch with the law of defamation. It should be resisted.

My Lords, as an expert by experience of press abuse, I consulted Hacked Off, the charity that has represented many victims of such abuse, and asked its views of the amendment of the noble Lord, Lord Puttnam. There is widespread frustration about the lack of transparency and presumed lack of progress on implementing Lord Justice Leveson’s recommendations. Given this, Hacked Off is extremely grateful for the initiative taken by the noble Lord, Lord Puttnam. However, its advice to me was that, as they stand, the amendments appear a somewhat diluted version of Lord Justice Leveson’s recommendations. The amendments that I and my noble friend tabled are offered in the spirit of trying to be as faithful to Lord Justice Leveson as possible and thus to command wider support.

Many victims fear that a deal is being brokered with the press behind closed doors, one that does not include the independent element that Lord Justice Leveson considered so important. Hacked Off’s advice was that the characteristics of the regulator need to be detailed enough so that implementation of Lord Justice Leveson’s criteria is not fudged. Interestingly, most of the draft Bills already published spell out the criteria in some detail.

The public expect the Leveson report implemented as published. They expect robust arrangements to be put in place. They also expect an independent regulatory board to be set up that that will provide an arbitration service, and that these measures will provide protection for innocent members of the public, both with respect to defamation and intrusion. I hope that noble Lords will support the amendment of the noble Lord, Lord Puttnam, and accept that some further amendment of the detail may be needed.

My Lords, I have only one point to make. The noble Lord, Lord Lester, said that these amendments in effect introduce Leveson by the back door into a Bill dealing with other matters. To my mind, that is an important merit of the Bill because we are unlikely to get Leveson through the front door. I particularly emphasise the point that these amendments are the best chance we have of getting the Leveson proposals implemented in their full integrity. The amendments are about access to justice. They would put in place two fundamental elements of Lord Justice Leveson’s proposals, namely means of legal redress for ordinary people if their rights are breached and a fair and independent system to deal with complaints against the press. I doubt whether those who support these fundamental elements will get another chance, or at least as good a chance as now exists, to have these principles embodied in law. The private Member’s Bill of the noble Lord, Lord Lester, will not afford the same chance, for reasons given by the noble Lord, Lord Fowler. If we fail to take advantage of this opportunity, we will in effect kick Leveson into the long grass. The amendments would make the Defamation Bill relevant to the entire population instead of just to the rich, and it is vital that we support them.

At Second Reading, I devoted most of what I said to the issue of access to justice. I take my hat off to the noble Lord, Lord Puttnam, and his supporters, as well as the noble Baronesses, Lady O’Neill of Bengarve and Lady Hollins, for concentrating on the huge lacuna in this Bill and in the law of defamation generally. Let no one be under any misapprehension as to how unjust our law of defamation is. I speak as one solicitor—long in the tooth, it must be said—who has dealt over the years with defamation, from time to time. It is a scandal how much it is a plaything of the rich, completely beyond access by people of even ordinary means. So I am wholly emotionally in favour of what is intended by this set of amendments and the schedules.

I have listened to the noble Lord, Lord Lester, who never speaks with less than authority. At first hearing, I am not sure how all the points that he made would impact, but I accept at large what he has said. One has to hope that my noble friend Lord Fowler is correct, and that if we pass this set of amendments today the defects in them can be rectified either at Third Reading in this place or in the House of Commons or when it comes back to us. I am convinced that to leave this for another day would not be responsible of us—as the last speaker said. We must take the chance that we now have, defective though the amendment may be.

I add only one detailed point. My noble friend Lord Lester said that he was wholly opposed to the notion of exemplary damages pretty well willy-nilly. At least subsection (8) of Amendment 1 talks about exemplary damages for,

“a flagrant breach of … rights”,

of the claimant. Given the sensitivity of the relationship between the press and the citizenry, it might be an acceptable use of what is generally not desirable—exemplary damages, or the concept of it—in respect of a “flagrant breach”. Incidentally, subsection (8) of the amendment has in it a serious misprint. It talks about breach of a defendant’s rights when it should refer to a claimant’s right. That is but one of several matters that could and, I hope, will be improved in the course of this Bill through the two Houses. On that basis, I am in favour of the amendments going through.

My Lords, first, I apologise that I was not in Grand Committee when the Bill was going through. The noble Lord, Lord Lester of Herne Hill, always speaks with great authority on human rights and the conventions, but I would have thought that this was not the Third Reading of the Bill. If it were, we would be coming to the end of the game. This is Report, so the noble Lord, Lord Lester, might put right the defects in the amendments so that when the Bill comes back at Third Reading it will be amended. So that argument does not hold water.

In the end, it is to do with trust. If trust is absent, what do you do? We all want to trust our newspapers, but what happens when there is no trust? The amendment proposes an:

“Arbitration Service for defamation and related civil claims against members of Independent Regulatory Board”.

Because it is to do, first of all, with a question of arbitration, I am attracted to it. I am attracted to it because the preacher from Galilee said that, if you have a dispute with your neighbour, it is better to try to settle it before you go to court, because when you go to court you may find yourself being given such a stiff sentence that you end up losing doubly. Therefore, I am attracted by the whole question of arbitration. The courts, of course, can look at whether the parties were willing or unwilling to engage in arbitration. If a person has been wronged and another person does not think that is the case, arbitration obliges them to have a conversation. It seems to me that we should accept Amendment 1 at this stage. Then the Government can perhaps suggest alterations to it. Certainly, the noble Lord, Lord Lester, is always very assiduous in correcting things that are not well put. Perhaps he can suggest alterations to the amendment.

I am not persuaded by the part of the amendment in the names of the noble Baronesses, Lady O’Neill and Lady Hollins, which seeks to delete subsections (5) to (7) of the proposed new clause in Amendment 1, although I may be persuaded by other parts of their amendment. Those subsections are very important. They set out what needs to happen. Therefore, I urge your Lordships’ House to pause and consider whether we really think that only the rich ought to have recourse to a remedy in defamation cases. The ordinary citizen could find redress very easily and quickly through arbitration. The press ought to welcome arbitration because it would cost far less than an elaborate court case, which may collapse in the end after a lot of costs have been incurred. When there is no trust, what do you do? You want to be in a position to rectify your situation. For those reasons, I support Amendment 1 and resist deleting proposed new subsections (5) to (7) from it.

My Lords, I, too, support these amendments. I always listen with care when I hear the noble Lord, Lord Lester, speaking about human rights because of his great experience and his important role in our nation in arguing for human rights. However, I take issue with his interpretation of Article 6 and the statement that any kind of arbitration in this field would in some way contravene that article. The whole purpose of human rights is to empower the weak and to recognise the ways in which due process can often disadvantage those who have no money. The purpose of arbitration in this context is not simply to speed things up or to move things along. Much of our arbitration concerns two parties coming together to try to find a smoother way to deal with something, but in this context the purpose of arbitration is to redress the fact that our current system disadvantages whole tracts of people who cannot afford to go to litigation at all. I think you would find that the courts would not accept the literal interpretation of this concept on the part of some of our colleagues. The noble Lord, Lord Faulks, also said that this provision would be a contravention of human rights. I think you would find that the courts would take a very different view.

I am grateful for that but I think the noble Baroness does not understand what I was saying, which is my fault. I was saying that the Arbitration Act is a perfectly fair way of tackling this issue but these amendments do not give effect to that Act and a right of appeal. If they did so, it would be quite a different matter. I was trying to explain why they do not. For that reason, they violate Article 6 as well as Article 8.

My Lords, I should declare an interest as chairman of the Press Standards Board of Finance and executive director of the Telegraph Media Group. I have the greatest admiration for the noble Lord, Lord Puttnam. He and I have made common cause on a number of things over the years. However, we rarely agree on issues of regulation and I am afraid that I will not disappoint him today because I believe that what he is proposing is unnecessary. It is unnecessary for this House to intervene statutorily in press regulation and to deliver an arbitration service. Actually, it would be counterproductive and set back the delivery of the arbitration system which is currently being worked on.

As noble Lords will know—my noble friend Lord Fowler mentioned it just now—I have been working with my noble friend Lord Hunt and others to build a new independent regulator with tough powers backed by the force of contract law. An arbitration system is a central part of that, and it is important that I explain how it would fit in, not least in dealing with the news blackout that my noble friend Lord Fowler mentioned.

In July last year, I presented detailed proposals to the Leveson inquiry for a new regulatory system. That proposal foreshadowed an arbitration system which would deal with both defamation and privacy. My third witness statement said:

“The industry is extremely keen to pursue this—believing it will be good for the public and good for the industry at the same time—and believes that the structure that is being proposed will be flexible enough to allow such a … development”.

It is important to make the point that it would deal with privacy as well as with defamation.

That was one of the ideas that Lord Justice Leveson enthusiastically backed, but his report made it very clear that he wanted the arbitration system to be part of the industry’s own self-regulatory mechanism. In Part J, Volume IV of his report, he says that he considers it,

“very important that the arbitral system should be one part of a regulator”.

Since the report has been published, the industry has been working extremely hard with the Government to finalise the details of a regulatory scheme. Much progress has been made on the development of a contract, regulations and governance to deliver a genuinely independent regulator. The arbitration service will be a very important part of that. There are issues around it which are very complex and which need a great of work if it is to function properly, but to deal with the point that the noble Lord, Lord Skidelsky, made, there is no question of kicking this into the long grass.

It is going to happen, and my lawnmower is out in force already. Media lawyers from across the industry are working flat out to establish a scheme that will be good for the public but not an intolerable burden on the regional press in particular. Crucially, we have to find a scheme that will not simply be a new cash cow for claims farmers. The scheme proposed by the noble Lord, Lord Puttnam, does not address the legitimate concerns—of the regional press in particular—about the problems that might be unleashed. Therefore, there is more work to do but excellent progress has been made.

What would stop it dead in its tracks is any attempt to establish a scheme by statute. There would be little point in a regulator setting up a scheme and the industry funding it if it were simply to compete with other bodies. If this amendment is agreed today, work will be likely to stop tomorrow because of the potential for what is in effect regulatory chaos. There is nothing in the scheme proposed by the noble Lord to stop the proliferation of a number of statutory regulatory bodies with different functions, codes, arbitration schemes and so on, and so it raises the potential for competition between regulators.

The truth is that no such statutory intervention will be necessary to set up a scheme that will be of real benefit to the public. We are clear that it can be delivered under the Arbitration Act 1996, which requires arbitrators to be impartial, to act fairly, to have rights of appeal and so on.

Legislating in this way is fraught with difficulties, as well as being unnecessary. As I have already said, it is a recipe for regulatory chaos. There is a danger of dragging senior members of the judiciary and the Civil Service Commissioners into matters of public controversy, and that would be highly undesirable. There are also serious concerns about whether such a compulsory scheme would be compliant with Article 6 of the ECHR, as the noble Lord, Lord Lester, said.

This is an excellent Bill but it is a liberalising measure designed to secure freedom of expression as well as protect the rights of the public. It therefore seems deeply ironic that what is being proposed is the introduction of a system of statutory supervision—press regulation—with the massive constitutional implications that that would bring. I regret to say that I believe the amendments are ill thought through, misguided and likely to prove unworkable. The most important point is that it would stall the initiative by the newspaper industry, which wants to deliver real change that will be of lasting benefit to the public. I do not believe that that is what the noble Lord or anyone wants, so I urge noble Lords to reject the amendment.

My Lords, I am delighted to follow the noble Lord, Lord Black, who did not take part in our debate on Lord Justice Leveson’s report because he was abroad. I spoke in that debate and remind the House, and the noble Lord, Lord Black, that my main point was about the system that has existed very successfully for some years in Ireland, where many of the recommendations made by Lord Justice Leveson for the United Kingdom have been implemented simply and with no regulatory competition. That was done in the session of the Dáil in 2008-09 by inserting a clause into the Irish defamation Bill—a process that is very similar to the one being proposed by my noble friend Lord Puttnam this afternoon. I explained it on the occasion of the previous Bill and, like the noble Baroness, Lady Boothroyd, I shall not weary the House by going over all the details of the Irish situation again as those interested in this topic are already very familiar with them. Let it be said that the regulations are very similar to those proposed by Lord Justice Leveson and, indeed, the most important thing from the point of view of those seeking redress for press complaint is that the guiding notes say that the system is open and free to any citizen, dependent simply on the price of a letter or sending an e-mail. I am very happy to support the amendment.

My Lords, how fascinated I have been by this debate. As one of the proposers of the amendment, it is only appropriate that I speak now. I very much regret that the noble and learned Lord, Lord Mackay of Clashfern, is unable to be in his place. I had the advantage of speaking to him this morning and he is clear that he wholeheartedly supports the amendment. I had intended, after his erudite and elucidating speech, to simply say that I agree.

However, the importance of the speech of the noble Lord, Lord Black, cannot be understated. He said that the amendments were unnecessary because we would have a system in due course that would suffice. That is a bit like one of the saints saying, “Make me chaste, Lord, but not yet”. We have been waiting for some 65 years for redress. One of the reasons why the noble and learned Lord, Lord Mackay of Clashfern, is so concerned about taking this opportunity is because, as many of your Lordships will know, in 1993, when he gave evidence before the Select Committee, he suggested that we should have an arbitration system to give redress to the poor, to the needy and to those who would have no redress but for the creation of such a service. We have lived with inequality and inequity for a great number of years. Our House and the other place have regularly been asked to redress that wrong—that mischief that we have spoken about so clearly today.

We have an opportunity to choose, if we wish, to redress that balance. The noble Lord, Lord Black, said that the matter is not being kicked into the long grass. Well, if this is not long, I do not want to see short. We know that we have to grasp this opportunity if we wish to see change. The amendments in this group are not perfect; none of the noble Lords who tabled them suggests that they are. However, they are a vehicle that we can use with great efficiency and energy to enable the Government to be clear that we wish to see this redress.

The noble Lord, Lord Lester, rightly pointed out a number of issues. I say to him that there are a number of things on which perhaps I do not agree with him. For instance, on the back of the Bill it states that the Bill—Clause 3 et cetera—does not refer to Scotland. There are lots of things that we need to debate.

We are faced with a choice. The people of this country have been thirsting for change. Do we take this opportunity to slake their thirst or do we say, “No, you must wait even longer.”? I urge the House to give the other place and the Government the encouragement they so clearly need. It is an opportunity—and if the noble Lord, Lord McNally, would like to grasp it, there will be no one happier than we on these Benches.

When we debated amendments on the Legal Aid, Sentencing and Punishment of Offenders Bill, as it then was, the noble Lord, Lord McNally, assured us that:

“The Defamation Bill and the procedural reforms that we intend to take forward with it are of course about reducing the complexity and therefore the expense involved. In order for those aims to be achieved, we will look at the rules on costs protection for defamation and privacy proceedings for when the defamation reforms come into effect”.—[Official Report, 27/3/12; col. 1332.]

The vehicle that the noble Lord identified was this Bill.

There is a lacuna because, for one reason or another, the Government have not been able to take advantage of that opportunity. Let us, with the generosity of spirit for which this House is renowned, give them that opportunity today. I will vote in favour of my noble friend’s amendment if he is minded to press it, and I hope that the whole House will join us.

My Lords, I will interject on behalf of communities that, for lack of resources, have not been able to resist wholesale defamation. I speak about Islamophobia and the way in which it was fuelled because certain young men did something that was considered evil by the total Islamic community. However, for weeks we had “Muslims” as a category identified as terrorists and potential murderers. I would certainly have been willing to take them to court if I had had the resources. Undermining minority rights is simply not acceptable. Therefore, I support the amendments in this group.

My Lords, I did not want to pre-empt any other Back-Bench contributions. I declare my interest as the independent chair of the Press Complaints Commission, and my other interests that are set out in the Register.

When we debated the Leveson report on 11 January, I reported to the House that I was confident that I could deliver a fresh start and a new body with teeth,

“with comprehensive sign-up right across the newspaper and magazine industry by the middle of this year”.—[Official Report, 11/1/13; col. 386.]

To those who are worried about perceived delay, that is still my intention—and I will deliver on my pledge.

I confess that I have a great deal of sympathy with many of the contributions made so far today. Those of us who have turned every page of Lord Justice Leveson’s report will remember that on 25 November, on the day of publication, I welcomed the report and said that I would now ensure that the new regulatory body would be Leveson-compliant. That is my position today. However, I sense and feel the frustration that it was as long ago as July 2011 when the leaders of all three main political parties said that the PCC must go, a new body must be set up and a new regulatory system established, and that it is now two months since the Leveson report was published.

The first point I wish to make is that I have attended some, not all, of the negotiations and I have seen no evidence of delay. I put that on the record because I have been there. Indeed, I have been struck by the candour of the exchanges, by the considerable degree of consensus on accepting the architecture proposed by Lord Justice Leveson, and by the fact that everyone appears to be negotiating in good faith and in genuine hope of reaching a common position. I remind the House that we are not dealing with a few publications sited in London; I am speaking on behalf of all those who attended an open meeting I called last month when representatives of 5,000 editors and more than 200 publishers attended. I hope the House will allow me to give an update of where we are.

On re-reading Lord Justice Leveson’s report, I am struck by the number of times he states, very clearly, that what he advocates has nothing to do with statutory regulation. Indeed, statute is unnecessary. He said that he wanted to see,

“genuine effective independent regulation in the public interest”,

established by the industry itself. I gave up when the number of times he said that in his report hit double figures. I commend the report to those who are interested because, in turning page after page, you are reminded all the time that it is up to the industry to set up this new body.

I have no history here. Although I recognise that there are many in this House who have a more distinguished history and connections with the press, I have had no connection with the press at all apart from being severely criticised on more occasions than I can remember. However, I sense that we now have consensus on almost every aspect of the new structure, and perhaps I may give a more detailed analysis. There will be a far more open and transparent appointments procedure and an independent majority at every level of the organisation. There will be a new standards arm with the power to undertake in-depth investigations where serious or systemic breaches of the code are believed to have taken place. For the first time ever there will be fines, as and when such breaches are established. There will be enhanced powers to require the prominence of corrections. The board of the new body will be represented on the committee that draws up the code and will have a veto on any possible changes to it.

I am greatly heartened that I can report to the House that all the publishers in the newspaper and magazine industries are willing to move forward as one, with one or two exceptions. However, the public need to know where everyone stands. There should be one code embodying generally accepted standards and overseen by one regulatory authority with real teeth. On page 1779 of the report, Sir Brian acknowledges this. He says:

“I would strongly urge that it is in the best interests of the industry and the public that a single regulatory body should establish a single set of standards on which the public can rely”.

As is already evident, there are two particular problems. As far as I understand the situation, the only outstanding areas of controversy and disagreement relate to the proposed arbitral arm and the method by which the new regulatory structure will be verified. I will deal briefly with each of these points, because they go right to the heart of this debate.

The noble Lord, Lord Puttnam, has very helpfully provided colleagues with a two-page briefing note. My eye was drawn immediately to paragraph 14, which he referred to in his opening speech, where he quotes me in the evidence I gave to Lord Justice Leveson. But the paragraph opens with the statement:

“An Arbitration Service on this model is supported by the newspaper industry”.

I am sure that there was no intention to mislead, but that is not the case, because it is the proposed arbitral arm that is dividing the industry. With good reason, many in the national press are strongly supportive because it would help them in their work of challenging international corporations and others with deep pockets. At the opposite pole—and I have spent the past few weeks going round the local and regional press—many of those editors believe that a whole new class of what they describe as potentially ruinous actions could be created.

Sir Brian is vague—I think intentionally—on the details of this arbitral arm. In his report, Sir Brian accepts the view, which has been expressed by many in this House, that there should be no role for compensation within the complaints function of the new regulatory structure. I reiterate that because one or two confusing comments were made earlier in this debate. The arbitral arm he proposes will not deal with breaches of the code but with existing claims under civil law. It would be designed to improve access to justice.

I see the noble and learned Lord, Lord Woolf, in his place. He will recall that when the Legal Services Bill was passing through this place, he and I joined together to ensure that access to justice was put right at the heart of the new system, and that is where I still am. Although the arbitral arm would improve access to civil redress for some people who currently have no access to the system, it would not create any new course of action. If the arbitral arm is to achieve the rather limited but tightly defined objectives set out by Leveson, it needs to be very carefully constructed. I am sure that a Leveson-compliant system can be constructed, but it must not be erected at what could be ruinous cost to the local and regional newspaper sector.

I understand that media lawyers from the whole industry are still meeting to discuss this. They are nearly there, they told me, just before this debate started. This is no time to start telling them, “This is now going to be imposed on you because you have not yet come up with the solution”.

The amendment also deals with recognition. My position on this is quite clear. We stand ready to build this new structure. As the noble Baroness, Lady Jay, knows, the Irish system merely acknowledged the existence of a body that had already been created two years earlier by the industry. We stand ready to build a completely new regulatory structure, and I am sure it should be subject to serious scrutiny by an outside verification body, but the noble Lord’s quotation from me is extracted from the submission I made to Lord Justice Leveson. It is taken rather out of context. The implication is that I was talking about an arbitration service, when in fact I was making the point that I felt very relaxed, indeed positive, about the possibility that the editors’ code might be recognised in the Bill. That was the point that I was making.

I would make one point to the noble Lord, because I think that he is picking unnecessarily at what I said. He was clear that he believes himself to be an independent chair. He is not an independent chair. He is an appointed chair, appointed on the basis of his rejection of statutory regulation. That is the position that he comes from. He is an extremely persuasive speaker, but it is very important that he does not claim independence. He is not in any sense recognised by the House as independent on this issue.

I just point out that when I applied for this post, I asked a noble and learned judge what independence meant, because I was concerned about the fact that I would be appointed by the industry. My noble and learned colleague from the judiciary said, “Don’t worry about that. The House of Lords will judge whether you are independent or not”. So I place myself in the hands of my noble colleagues. You will have to decide. I think that the test is whether someone is of independent mind. I think that it is essential that whatever structure is created, the majority of people who administer and are responsible for the new system are people of independent mind.

There is no straightforward definition of that. The point that I made in my submission to the inquiry was that the Republic of Ireland had a voluntary self-regulatory system established some years earlier. It was only after it had proved itself that it was incorporated into the Defamation Act in 2009. That matters, because what Lord Justice Leveson called for was a body that was clearly proven to be independent-run.

My Lords, I hesitate to get into the detail of this and do not wish to weary the House, but surely the point made by the noble Lord a few minutes ago about what I said about Ireland is that the legal recognition of the system—indeed operated by the industry—is precisely what he is asking for and what Lord Justice Leveson was asking for. Presumably, had the Irish community and the Irish Government felt that it was adequate, there would have been no need for the legal underpinning. It was to reinforce the industry-owned arrangements that the legal underpinning was established.

The noble Baroness is quite right. I have spoken many times to Professor Horgan and to the Irish press council. Much of what I am seeking to introduce in the new Leveson-compliant body will follow the lessons learnt in the Republic of Ireland. All that I was seeking to point out to Lord Justice Leveson was that as soon as you go down any statutory route, which requires a Bill—I added this after I had made my comment about the Defamation Bill—you would be opening Pandora’s box. I suppose that the proof of that is the revised Marshalled List of amendments, because we are now getting into quite complicated territory.

I think that the way forward is, yes, to hear from the Government what has been happening in these three areas—

Is my noble friend Lord Hunt saying that he would oppose any form of statutory underpinning, even my little Bill? Is that his position?

Not at all, and I am very grateful to the noble Lord for enabling me to clarify the position. The noble Lord, Lord Puttnam, was quite right to say that I referred to a possible amendment to the Bill. However, I was talking not about this Pandora’s box but about the recognition of a code, just as we recognise codes in the Data Protection Act. We recognise codes in statute and I can see that there is a place for that.

In conclusion, where do we go from here? It is very important that this House should not start imposing detailed, prescriptive clauses that are not in Lord Justice Leveson’s report. His wish was to see an independent regulatory body established.

I will just mention that it will not have escaped the notice of the House that another important debate is taking place at this very moment in another place. The two debates may seem to have nothing at all in common, except of course that they have the same Secretary of State, but I believe they are both important because both have significance far beyond their obvious and immediate import. Both debates are about the proper role of the state. In both cases, the world is watching to see what sort of country we want to be. Will we assert our belief as free citizens and organisations taking greater responsibility for our own lives and actions, and our support for freedom, diversity and fair and equal treatment before the law?

I ask your Lordships to consider those key points because the alternative is that the state should have an even greater role, both compulsive and compulsory, in arbitrating over what is an acceptable form of expression and what is not. Before I had the honour of joining your Lordships’ House, I was in another place for 21 years and I learnt at first hand how frustrating it was when the will of this House conflicted with that of the other place. However, I quickly learnt to respect the judgment and special qualities of this House. Time and time again, this House has demonstrated the virtues of experience, tempering partisanship and hotheadedness that sometimes characterise another place with the calm consideration and wisdom that reign here. I just hope that noble Lords will follow the same path today because freedom of expression is too important, too precious and too hard won to be legislated upon in haste or in anger. I want to hear from the Minister as to the way forward that the three political parties wish to take. A solution is well within our grasp; let us get ahead, but not this way.

My Lords, before we come to the Front Bench speeches, may I ask for some help for lay Members of the House and point to an opportunity? An enormous amount rides upon my noble friend’s very convincing and confident undertaking to deliver an acceptable and effective solution by the middle of this year. Many others have had that ambition and failed; there is a danger that he may fail. It seems we would then have a situation where nothing can be done for a very long time. The Minister would be giving a great help to the House if, between now and making his speech, he could get clearance for an undertaking that if a satisfactory solution is not arrived at by the end of this year, or indeed by its middle, then legislative time should be brought in so that we can have a statutory system instead—and not wait to extend the 67 years into three quarters of a century.

My Lords, today’s excellent debate has strong echoes of the occasion on which we first received the Leveson report. Your Lordships may recall that on that occasion we had to have two Statements; one was given by the then Leader of the House, the noble Lord, Lord Strathclyde, who said that he was speaking for the Government, and the other was given by, let us say, another government Minister—did we are discover in what capacity it was that the noble Lord, Lord McNally, was speaking? The point is that on that occasion, all three major parties claimed to be supporting what Lord Justice Leveson was recommending. The noble Lord, Lord Strathclyde, said,

“Lord Justice Leveson sets out proposals for independent self-regulation organised by the media. He details the key requirements that an independent self-regulatory body should meet, including: independence of appointments and funding; a standards code; an arbitration service; and a speedy complaint-handling mechanism. Crucially, it must have the power to demand upfront apologies and impose million-pound fines. These are the Leveson principles. They are the central recommendations of the report. If they can be put in place, we truly will have a regulatory system that delivers public confidence, justice for the victims, and a step-change in the way the press is regulated in our country. I accept these principles and I hope the whole House will come behind them”.—[Official Report, 29/11/12; col. 340.]

The noble Lord, Lord McNally, obviously quoting his leader, said:

“I have always said that I would support Lord Justice Leveson’s reforms, providing they are proportionate and workable … I believe that to be the case for the report’s core proposal for a tougher system of self-regulation, supported by new, independent checks, recognised in law”.—[Official Report, 29/11/12; col. 351.]

The other groups in your Lordships’ House were equally supportive. As my noble friend Lord Puttnam reminded us, that remained the situation when we had our extended debate on the report on Friday 11 January. Since the original publication of the report, the parties have been engaged in tripartite talks that have been ongoing for about two months. However, we hear that the pace of these has slowed down considerably in recent weeks, with the most recent scheduled meeting being cancelled by the Government and offers to meet and resume talks in the light of today’s amendments being rebuffed. It is worth recalling that when we entered the cross-party talks, we set the Government a deadline of the end of January to publish Leveson-compliant measures. It is noticeable that the Government have so far been unable to publish their proposals, although we know that they include at least one draft royal charter and some statutory underpinning.

At the heart of today’s debate is the question of whether we have independent self-regulation backed by law. We need statute because the current system of self-regulation has failed year after year for 70 years, and despite seven major reports. Trust, as the most reverend Primate said, is in short supply here—something has to happen. Lord Justice Leveson proposes a framework that provides for the continuation of self-regulation by the press but with a legal guarantee that self-regulation will be effective and independent and will continue to meet high standards. The role of the law, the legal underpinning, would be limited to setting up a body whose task would be to recognise the self-regulated system and to check it once every three years. Lord Justice Leveson said that this was essential to ensure that, despite all the protestations of change and good intentions, the press did not once again slip back into its old ways, as it has always done after all the other inquiries and reports.

We believe that Lord Justice Leveson’s answer to that decades-old problem is ingenious. It ensures that the press regulates itself independent of both the Government and its own interests, but it also ensures that there is statutory backing for the system. As I have indicated, there is wide agreement in Parliament that Lord Justice Leveson’s recommendations should be implemented. If we were in power, we would make every effort to get agreement to implement the Leveson proposals in full. We think that there is no credible argument for today, and that action should be taken forthwith—certainly by the end of the current parliamentary session.

While the Government have shared their suggestion of a royal charter and accompanying clauses with us in the talks—and with the newspaper industry, it should be noted—most MPs, Peers, lawyers and others with an interest have yet to see them.

The noble Lords, Lord Black and Lord Hunt, made interesting interventions in this debate today. I am bound to say that without the detail it is very hard to judge what they are doing and how they are going to do it, but I felt that neither of them commanded the support of the House.

It is now time for the Government to have the courage of their convictions. The status quo is not an option. We have drafted and published our Bill and so have others, including Hacked Off. While the talks have been useful and obviously will continue, the main decision here—whether it is to be statute alone or statute and charter—must now be discussed openly; the public must be able to scrutinise the proposals; the victims should be able to signify their consent; and Parliament, to which Lord Justice Leveson entrusted a key role in setting up the new system, must be given an early opportunity to decide.

As I said, there is a strong case for action being taken on an all-party basis; the victims, and the public more generally, expect that. The families who suffered press intrusion and gross violations of their privacy are still pressing for the changes that will protect people in the future from what happened to them. These victims have gone through, and, in some cases, are still going through, unimaginable suffering. They remind us by their evident presence why the status quo, unsatisfactory for decades, is not an option. We must act on Leveson’s proposals for substantial and lasting change.

The amendments so brilliantly introduced by my noble friend Lord Puttnam and supported by the noble and learned Lord, Lord McKay, the noble Baroness, Lady Boothroyd, and my noble and learned friend Lady Scotland are a reflection of the lack of confidence in, and the frustration with, the current process of implementing the Leveson proposals. There are some who feel that the apparent politicisation of the implementation process, because of alternative ideas such as the royal charter, takes us some considerable distance from Lord Leveson’s recommendations, and in so doing, erodes the trust of both victims of press abuse and the general public.

The purpose of the amendments in the name of the noble Baronesses, Lady O’Neill and Lady Hollins, is to tighten up the amendments tabled by my noble friend Lord Puttnam so that the new clause and schedules being inserted implement Lord Justice Leveson’s recommendations in a clearer and more effective way. These amendments are entirely consistent with the spirit of my noble friend Lord Puttnam’s amendments and aim to ensure that the Defamation Bill contains a fully workable version of the Leveson recommendations.

No one is claiming that the amendments answer the criticisms the Government might make about the drafting, nor that these amendments make the package “Leveson in full”, but they would, if passed, mark the beginning of a process to incorporate most of the Leveson recommendations into statute and they send a very direct message to the Government that the House wishes to see the Leveson report implemented. If they are passed this afternoon, as I hope they will be, your Lordships’ House will be doing a valuable service helping the Government of the day to do what at heart they say they want to do but which they have, to date, not been able to deliver.

So the questions we need to focus on are not the particular drafting of the amendments before us, because there would be ample time to sort that out at Third Reading, in the Commons or at ping-pong, but, under our procedures, that could not happen if we do not pass these amendments today. We must beware false choices. We were offered them recently in the sense that the allegation being made is that what is on offer is statutory regulation of the press. It is not. It may well be that what we have on offer today is not Leveson, it may be the back door but, as the noble Lord, Lord Skidelsky, said, the prospects of getting it through the front door, certainly not one with the number 10 on it, are quite remote. It could be characterised as being a first step down the road we need to take, and it changes the status quo. It will remind the Prime Minister and the coalition Government of the welcome they gave to the Leveson report when it was first published and, because a clock will have started ticking, remind them that too much time has already passed.

I suppose that the arguments that the Minister will give us shortly are that the Government are listening, that they can be relied on to act, and that they will be bringing forward consensus proposals which will be acceptable to all parties. He may suggest that all this can be done by Third Reading, which I understand is on Monday 25 February, immediately after our Recess. He may even promise publication of the Government’s proposals—that would be nice—and he may offer a revised timetable for more talks, which we would certainly look at. Can we take that risk? As the noble Baroness, Lady Boothroyd, warned us, tomorrow never comes. Is there credible evidence sufficient to believe that those responsible for the current delays are working to a deadline that delivers the necessary changes by the end of this Session? Even if you believe all that, what is the downside if we pass these amendments today? At heart, they genuinely offer the Government a chance to get this process back on track. Even if the Minister, when he comes to reply to this debate, gives your Lordships’ House an unequivocal assurance that he will bring back a government amendment on this topic which will deliver Leveson on Third Reading, I still believe that agreeing this amendment is what the people of this country want, and what the victims deserve.

When the Minister sits down, it will be for the proposer of the amendment to decide whether to test the opinion of the House. If he decides to do so, we on this side will support him.

My Lords, I always think it is extremely helpful for the courtesy of the House if the Opposition make not only their case but mine as well, but perhaps it will help if I also put forward a few ideas.

This Bill has been two years in preparation. It has been a draft Bill, it has gone through pre-legislative scrutiny, it has gone through all its stages in the House of Commons and it has spent four very full days in Committee. One of my fears over the past two years, and certainly since the Leveson inquiry was set up, has been that this discrete Bill dealing with defamation would be engulfed by the Leveson tsunami. Given the way in which matters are handled in this House, even if it agreed with every word of both amendments, it would be—to put it mildly—impetuous for it to vote for amendments that run to three pages in the Marshalled List, with in one case a weekend and in the other less than 24 hours’ notice of their content. In other circumstances, some of the old barrack room lawyers in this place would have drawn attention to that.

There is no doubt in my mind that we are dealing with one of the most serious challenges to political parties and to Parliament in the past 70 years. I have never been in any doubt that how we respond to Leveson will be a test of how each and every one of us carries out our responsibilities in this Parliament.

To put my own attitudes in context, I have been campaigning for the strengthening of press regulation for 15 years. Some 10 years ago when the noble Lord, Lord Puttnam, and I tabled some modest amendments on press regulation, I was told from this Dispatch Box by the Labour Minister of the day that our proposals were the “slippery slope” to a state-regulated press. I say that because I do not want people to assume that there is total moral rectitude on that side and none on this side. I do not believe that the proposals I made 10 years ago were a slippery slope towards a state-controlled press. I do not believe that the proposals before the House today are a slippery slope towards a state-controlled press. That is not the issue before this House.

There is an issue before the House that cuts many ways. The noble Lord, Lord Stevenson, has summed it up: trust. I hope that my noble friend Lord Black realised, from the reception to some of his remarks, that the media still have a long way to go before there is any sense of trust in what they are doing to rectify the harm that they have done to our body politic. I hope that one of the values of this debate is that each of the party leaders understands the question of trust which hangs over their intent. I am as frustrated as anybody that two months have passed since publication of the Leveson report. There is a strong case for getting things moving. If this debate has helped to stimulate progress, that is certainly a value that it has. There is a value in all three parties putting their cards on the table. This is not a time for secret diplomacy.

I also agree with the noble Lord, Lord Stevenson, that we should still strive for the prize of all-party agreement on this. We want a settlement about the relationship of our media with Parliament to carry all-party endorsement.

My noble friend Lord Elton asked me a question which an old campaigner such as him knows that I cannot answer on behalf of the Government. He wants to know whether the Government would support legislation in this matter if these talks collapsed and my noble friend Lord Hunt failed to deliver. I cannot speak for the Government but I know my party’s policy; namely, that if there is no agreement and we cannot achieve the tripartite agreement that I believe is the prize, we certainly would be in favour of legislation in this area.

Therefore, there has to be some understanding and balance about this almost unique move that we are going through. From our long relationship, the noble Lord, Lord Puttnam, knows that I fully understand where he is coming from. There is power in the Back Benches. This show of Back-Bench power today sends a necessary message which breaks the dreadful silence to which he referred. He perhaps has not studied the rest of the Bill as fully as he might. Other parts of the Bill try to deal with access to justice, including costs, as referred to by the noble and learned Baroness, Lady Scotland, where we are pursuing the Leveson recommendations on qualified one-way costs shifting.

The debate has brought up a number of issues that Members should ponder. Over the years, I have been on the same side as almost every Member who has contributed to this debate, including the noble Baroness, Lady O’Neill, in her call for a cheap, effective and independent answer. I will come to the point about independence in a moment.

When the noble Lord, Lord Lester, was having his skirmishes and the noble Baroness, Lady Kennedy, and my noble friend Lord Faulks were making their points, it crossed my mind that passing these amendments as they are might cause even more work for my learned friends while the judges work out the intentions of Parliament in passing these proposals. As I have said, that is the danger in such matters.

My noble friend Lord Fowler is an old ally. He rightfully called for what I think is the rational approach; that is, to look at the building blocks and at how they can be placed. The suggestions here may indeed be the right building blocks. I agree with the noble Baroness, Lady Hollins, that there is an expectation in the public at large and in both Houses of Parliament for Leveson to be implemented. However, Parliament has a right to look at these matters. I still believe that the tripartite talks are our best way to make lasting progress. That is where I disagree with the noble Lord, Lord Skidelsky. It is always tempting and alluring to say that this is the best chance we have or that “tomorrow never comes”, as the noble Baroness, Lady Boothroyd, said. But sometimes it does come and I do not think that we should abandon hope. I noticed that my noble friend Lord Phillips referred, while supporting the amendments, to the fact that they are defective.

The most reverend Primate the Archbishop of York reminded us about trust. I hope that we can face the question of how we can use the next few weeks—I am not talking about months or years—to restore the trust that clearly has been damaged in the conduct of these talks. There is a danger that passing these amendments today will be a diversion and not progress as regards what I and the House want to see.

It is a matter of judgment, and the noble Lord, Lord Puttnam, and the other movers of amendments will have to make their decision. However, let me comment on the intervention of the noble Lord, Lord Hunt, which I very much welcomed because it brought up to date and put on the record the very detailed work that he has been doing and the real progress that has been made. He was right to remind us that Lord Justice Leveson himself said that the industry has the responsibility to set up the new structure. On the question of independence, I can say only that the noble Lord, Lord Hunt, and I were on the executive of the Atlantic Association of Young Political Leaders— a modest body, as you can tell from its title— some 40 years ago. On the basis of that, I have no doubt that this difficult task is in safe and independent hands.

When Lord Justice Leveson’s report was published, all agreed that the inquiry had uncovered a shocking culture of wrongdoing at the heart of certain elements of the press, which the noble Baroness, Lady Boothroyd, referred to. There was also, as Leveson pointed out, an inadequate system of press regulation—something that I described in this House as a “sweetheart organisation”. The Prime Minister has stated that the status quo is not an option, and the Deputy Prime Minister has said that we must not now prevaricate. We are all agreed that a tough and truly independent new system of self-regulation is required to ensure that real change happens. At the same time we must ensure that there is freedom of expression for the press, which is a cornerstone of our democracy.

To that extent, I understand the intention of the noble Lord, Lord Puttnam, in tabling his amendments, as well as that of the noble Baroness, Lady O’Neill. I sympathise with the concerns that the Leveson report needs to be implemented and with the noble Baroness’s wish to see progress on this important issue. We are all agreed on the need for action and I welcome the noble Lord’s contribution to finding the right solution. However, I remind noble Lords that when the Leveson report was published, the Prime Minister and the Deputy Prime Minister agreed that a cross-party approach was the best way to ensure that a consensus could be reached on these contentious issues—and very few of us in this House would disagree with that. It is right for Parliament to send clear messages to our respective party leaders but, as I said before, the tripartite way forward is the prize that we all should seek.

To that end, the cross-party talks have been taking place over a number of weeks and the Government remain committed to ensuring their success. These discussions are not to be taken lightly. No fewer than 10 meetings have taken place between senior representatives from across the parties, and those representatives include the Secretary of State for Culture, the deputy leader of the Opposition and, from this House, my noble and learned friend Lord Wallace of Tankerness and the noble and learned Lord, Lord Falconer. From what I have heard, the talks have been constructive, although I also accept the point made by the noble Lord, Lord Stevenson, that there seems to have been a certain lack of momentum in recent days, which makes this debate not unwelcome.

Have I said something that I should not have said?

I should like to update noble Lords on some of the discussions that have already taken place on Lord Justice Leveson’s recommendations. First, recommendations concerning the press and police have been considered by the cross-party group and measures are being developed further by the Home Office, on which the Home Secretary will report to Parliament shortly. Secondly, Lord Justice Leveson’s recommendations regarding the press and politicians have been considered and are now being taken forward by the Cabinet Office.

Thirdly, there have been discussions on the complex issues raised by data protection. As the Minister with responsibility for data protection, I am looking with my right honourable friend the Justice Secretary at the best way to take this forward, preferably once we have a clear idea of what we are doing as far as the tripartite talks are concerned. This is a complex series of decisions. Furthermore, the talks continue to consider, among many other issues, the best way to recognise the new press self-regulatory body. While there are areas of differences, there are also many areas of agreement. There is a widespread desire for a cross-party solution to this issue of fundamental importance to our democracy. A great deal of work has already taken place in talks and these amendments risk pre-empting their outcome.

This brings me to the key issue: whether statute is the most appropriate route to delivering the underpinning that Lord Justice Leveson sets out. This question has been the topic of impassioned debate not only today but across the weeks since the report’s publication. The cross-party talks have considered a number of options, including various draft Bills—among them the Bill prepared by my noble friend Lord Lester. In addition, there have been discussions about a proposed royal charter. To add to the debate and to demonstrate to this House that concrete progress is being made, I can announce today that a draft royal charter proposal will be published next week—the noble Lord, Lord Stevenson, is well informed.

As I hope noble Lords will recognise, I have outlined just a few of the issues that are subject to detailed consideration in cross-party talks and with stakeholders. I am convinced that an approach agreed cross-party, if it can be secured, is the best way to do justice to Lord Justice Leveson’s proposals and to ensure a new system of press regulation which can enjoy secure and real public confidence.

I recognise the strong feelings in this House and the desire to send a message. I am sure that that message has been clearly heard. However, I ask noble Lords to allow those cross-party talks to reach their full and considered conclusion rather than to bring legislative proposals before this House at this stage. The noble Lord was wrong to say that this is the end of the matter; the Bill will have a Third Reading and go back to the other place.

This is, of course, a matter of judgment. However, I feel that with the progress that is being made on the kind of things to which the noble Lord, Lord Hunt, referred, and given that the royal charter proposal will be on the table next week, there will be a chance in the next few days to give some real impetus to these talks. As I said previously, there is no doubt in my mind that the real prize is not a victory or defeat on this amendment today but a successful outcome to the tripartite talks. That would give us the real holy grail here, which is a cross-party endorsement which sticks in parliamentary and legislative terms and has widespread support among the public. I hope that, with those remarks, my old friend will agree to withdraw his amendment.

My Lords, it has been a very instructive debate. I think that it has become clear to many of us how little many of us who are not close to the cross-party talks know about what is actually being said or discussed. There is, I am sorry to say, and as the most reverend Primate reminded us, a serious question of trust here that is not going to be remedied quickly. A number of issues speak directly to that. Perhaps I may address one which the noble Lord, Lord Hunt, raised. He spoke repeatedly, as he has previously, about independent regulation, and he was reminded by the noble Lord, Lord Puttnam, that independence is not just a matter of one’s belief that one is a person of independent judgment; it is also a question of institutions, structures, how one is appointed and to whom one is accountable. Our debates would be very much clarified if we did not speak of a self-regulation body that lacks an appropriate form of accountability to a recognition body as a form of independent regulation. It is less than that.

I have every faith in the good intentions of the noble Lord and his colleagues in seeking to define a way forward, but without the statutory recognition body which is integral to Lord Justice Leveson’s proposals, we have no reason to expect that that will endure across the vicissitudes of time and self-interest. We have repeated experience that what passes for self-regulation has been self-interested regulation. That is why many of us are extremely anxious on behalf of our fellow citizens who have been victims of intrusion and defamation, and lack remedies.

I will withdraw Amendment 1A, tabled in my name and that of my noble friend Lady Hollins. It is a complex amendment and it is imperfect. Greater clarity will be served if noble Lords make a straightforward decision on supporting the amendment in the name of the noble Lord, Lord Puttnam, and colleagues. That puts the issue squarely. We would all acknowledge that the details of these amendments—Amendment 1 and the amending amendments—are not perfect. They probably cannot be perfect at this stage. However, I hope that noble Lords will feel willing to support the amendment of the noble Lord, Lord Puttnam, knowing that it affords the Government more than one opportunity to reconsider the matter and come back on it. As the Minister indicated in his very interesting reply, it also affords some further time for reflection. I beg leave to withdraw Amendment 1A.

Amendment 1A (to Amendment 1) withdrawn.

Amendments 1B and 1C (to Amendment 1) not moved.

My Lords, I do not intend to delay the House any longer than necessary but I would like to make one point very clearly. Speaking from the Front Bench, the noble Lord, Lord McNally, frequently and quite rightly stressed the importance of cross-party support. This is a cross-party amendment in every sense. I would never have brought it to the House had it been anything else. We start from the premise that this has cross-party—and powerful—support.

I also take up two points that the noble Lord, Lord Hunt, made, because they are important. We all agree that the issue here is trust. I put it to him that there is some discontinuity between him saying that the newspaper industry accepts the architecture of Leveson and the fact that—as the noble Lord, Lord Fowler, pointed out—day after day, whenever Leveson or any form of regulation is raised, the newspapers’ response is near hysteria. Where is the equivalence between the hysterical reaction of the newspapers and their apparently comfortable relationship with the noble Lord, Lord Hunt, as he moves towards an equitable solution? That is why I find myself so untrusting of where this is going. The noble Lord also said that other countries look to us on this matter, and he asked an important question: what sort of country do we want to be? It is very clear that 78% of the population of this country do not want us to be one in which the lives of the McCanns and people like them are ripped apart by newspaper and press abuse. That is the country we do not want to be.

It has been interesting to listen to the criticism of this amendment. A great deal of it has been about what the amendment is not. I make no claims about its faults—there are a number of them. Yet, in respect of the all-party talks that have dominated this discussion and of which we have heard so much, I am reminded of the fate of a frighteningly similar set of talks that have been held for many years—more years than I can remember—regarding the issue of party funding. Any thoroughgoing democrat knows that party funding needs to be in a form that supports the maintenance of a serious democracy. But the instant a momentary or fragmentary form of party advantage raises its head, all thoughts of what might be the right direction for the electorate, let alone the country, seem to go out of the window. My real concern is that these all-party talks seem to conform to that type of pattern, and it worries me greatly.

As Sir John Major brilliantly reminded us in his evidence before Leveson, and as Lord Justice Leveson repeated in his own concluding remarks,

“if one party breaks off and decides it’s going to seek future favour with powerful proprietors and press barons by opposing”—

the recommendations of this inquiry—

“then it will be very difficult for it to be carried into law”.

As I see it, our job in this House is to shoulder that difficulty and carry at least some of these recommendations into law. In truth, I think that it is the very least that we owe Lord Justice Leveson for all the extraordinary effort that he has put into this. As the noble Lord, Lord Lester, illustrated, the abiding fault of legislators is to make the perfect the enemy of the good. The amendments in my name and the names of the noble and learned Lord, Lord Mackay, the noble Baroness, Lady Boothroyd, and the noble and learned Baroness, Lady Scotland, do exactly what they say on the tin. They offer a solution that is quick, just and affordable and, most of all, they offer a remedy that is entirely independent of both government and the media. As my granddaughters might put it, what is not to like about that?

My noble friend—and he really is my friend—the noble Lord, Lord McNally, suggested from the Front Bench that he understood exactly where I want this to go but that I should withdraw the amendment. What flashed across my mind, because I know that he is fond of the film, is that 30-odd years ago I made a movie called “Chariots of Fire”. There is a scene in which Eric Liddell is brought before the Prince of Wales and other dignitaries and asked to run on Sunday. I will always remember his response. He says: “God knows I love my country, God knows I love my King, but I cannot do as you ask”. I think it is very important that we test the mood of the House, and I would like to request that we do so.

Amendment 2

Moved by

2: After Clause 1, insert the following new Clause—

“Non-natural persons

(1) This section applies to an action for defamation brought by—

(a) a body corporate;(b) other non-natural legal persons trading for profit; or(c) trade associations representing organisations trading for profit.(2) The permission of the court must be obtained in order to bring an action to which this section applies.

(3) The court must strike out an application under subsection (2) unless the body corporate can show that the publication of the words or matters complained of has caused, or is likely to cause, substantial financial loss to the claimant.

(4) Non-natural persons performing a public function do not have an action in defamation in relation to a statement concerning that function.”

My Lords, after that excitement I rise to move Amendment 2 on behalf of my noble friend Lord Browne of Ladyton and the noble Lord, Lord Lester of Herne Hill. It would end the current position whereby individuals and organisations have identical hurdles to jump in an action for defamation.

Defamation is about someone’s reputation being trampled and seriously damaged by untrue statements made about them. Some commentators think that since only people and not organisations have feelings, only people should be able to sue. We do not go that far. We accept that organisations can be damaged by untrue allegations. Had horse meat not been in those burgers, or pork not in that halal food, such innocent information could have substantially and unjustifiably ruined a company’s reputation and caused untold financial harm. That would be the same if a small corner butcher, for example, was wrongly accused of having mice in the shop, if Perrier was falsely accused of being a purveyor of foul water or if a car manufacturer was said to have made a car with unsafe brakes.

Amendment 2 would allow such cases to be brought, provided that the allegations would cause substantial financial harm. The approach came from the Joint Committee. The amendment was moved in Committee on this Bill by its chair, the noble Lord, Lord Mawhinney, who cannot be in his place today. It is supported by Liberty, the Libel Reform Campaign, the Media Lawyers Association, Which? and the Commons Culture, Media and Sport Committee, which noted the mismatch of resources in a libel action between large corporations, for which money may be no object, and a small newspaper or NGO, which has had a stifling effect on freedom of expression.

In their response to the Joint Committee, the Government said that it was unacceptable that corporations were able to silence critical reporting by threatening or starting libel actions that they knew the publisher could not afford to defend but where there was no realistic prospect of financial loss.

This morning on the “Today” programme, John Humphrys, normally not afraid of anything, commented on a piece about branding and said that he dared not say anything derogatory about Coca-Cola because it would sue. John Humphrys may be powerful, but clearly not powerful enough to damage Coke’s profits. Even he knew the chill factor of a threatened action.

In Committee, our amendment was supported by my noble friend Lord Triesman and the noble Lords, Lord Faulks and Lord May of Oxford. It is no secret that the noble Lord, Lord McNally, shared this view until his then boss, Ken Clarke, took him into a quiet room, sat him down and, with the persuasiveness for which he is renowned, convinced him that corporations have reputations. The words are those used by the Minister in Committee on 17 December.

The cases that led to much of the pressure for libel reform were largely brought by corporations, using deep pockets and expensive lawyers to stifle criticism. An American corporation sued Dr Peter Wilmshurst, the British Chiropractic Association sued Simon Singh, Trafigura sued the BBC, manufacturers are for ever threatening Which?, and McDonald’s infamously and stupidly sued two individuals.

The Joint Committee on Human Rights called for the Bill to be amended so that non-natural persons would be required to establish substantial financial loss in any claim for defamation. Its report stated:

“Professor Phillipson … suggests that the failure to impose any restrictions on corporations’ ability to sue in defamation renders the law on reputation inconsistent and incoherent. Defamation law and the protection afforded under Article 8 has developed on the basis that the protection of an individual’s reputation is a significant human rights issue. Corporate claimants have neither personal emotions nor dignity, and yet are treated as natural persons for the purposes of defamation”.

The Commons Culture, Media and Sport Committee also called for a requirement on a corporation to prove actual damage to its business before an action could be brought. Regrettably, the Government opposed this on the grounds that a corporation does have a reputation. Our amendment does not contradict that. It simply requires companies to obtain the court’s permission to sue by showing that it has been, or is likely to be, caused substantial financial loss. This has widespread support and we hope that the Minister will think again.

The second part of our amendment extends the bar on public authorities being able to take action to other organisations performing a public function. The Derbyshire principle is a legal precedent that a government authority cannot be sued for libel. There are good reasons for this. First, it is a body corporate and thus, under the first part of the amendment, it should be debarred since it cannot show financial loss, given that all of us must pay its levy, whether by income tax or rates. The second reason is the comparative resources of any government body compared with those of an individual. The third is that such an authority had a monopoly over education, street cleaning, social care, parking and myriad other services, so any damage to a its reputation would not dent its market, while publicity was a key driver of improved services or access to redress, since users were unable to take their custom elsewhere. That world has changed. We now have free schools in competition with those run by local authorities, while the voluntary sector and private companies run myriad services on behalf of public authorities and paid for by public funds.

First, users need to be able to comment on such services without fear of a defamation action. Secondly, ratepayers and taxpayers must similarly be able to comment without fear of action. Thirdly, since such services are won through competitive tendering, it seems extraordinary that in compiling their bids, private or voluntary sector organisations can say what they like about the local authority against which they are bidding, but could take action for defamation if the local authority or any of its service users said a critical word about them. Are these providers spending taxpayers’ money on services, including issues such as the Border Agency, adoption and care homes, really to be protected from criticism by hiding behind the threat of defamation? Surely we should be able to hear questions about standards, complaints or conduct without lawyers bullying commentators into silence.

Our amendment would cover only those parts of a corporation performing a public function. Thus, Virgin Care would lose its right to sue over its commissioned work but Mr Branson could still protect his brand’s name where Virgin’s profitability was at risk. In the Commons, the Government rejected this on the excuse that the court in Derbyshire had rejected it. However, that was 20 years ago, when outsourcing was a fraction of what it is today. Now we have one lot of bidders—public bodies—at a disadvantage compared with others because one side can sue for libel but not the other.

In Committee, the Minister, the noble Lord, Lord Ahmad, said that,

“legislation could remove the flexibility that exists under the common law for the courts to develop the Derbyshire principle … in the light of individual cases … it is better to allow the courts to do this rather than introduce … statutory provision”.—[Official Report, 17/12/12; col. GC 467.]

This is a decision that Parliament should take, not the courts. Why do a 2013 Government, pledged to update our defamation laws, feel bound by a 1993 ruling when new legislation is exactly the time to make good any shortfall in the law? The Derbyshire case upheld the right for uninhibited public criticism of public authorities. We should extend this to organisations carrying out those services which were once the monopoly of public authorities.

The amendment is not unfair to corporations. It allows them access to the courts to pursue a defamation case where there is a risk of substantial financial harm to their business. It would remove that right only from those providing public services, akin to the existing bar on public authorities. I beg to move.

My Lords, I have added my name in support of the amendment, which would reinstate a provision from my Private Member’s Bill preventing profit-making bodies from suing in defamation except where they can show substantial financial loss or the likelihood of it. As the noble Baroness, Lady Hayter, has indicated, it would extend the Derbyshire principle to bodies performing public functions. It does not seek to prevent companies from suing. It simply requires that they show harm where they feel it most—in the pocket. I do not believe that companies should not be allowed to sue for libel. They have no feelings but they and their shareholders are able to be hurt in their pocket book. If we were to bar companies altogether from suing, that would clearly violate the European Convention on Human Rights because it would be discriminatory.

That is why, in my Private Member’s Bill and in these amendments, I have supported the right of corporations and trading companies to sue provided that they can show actual, or the likelihood of, serious financial loss. As the noble Baroness, Lady Hayter, indicated, the Joint Committee on the draft Bill concluded:

“It is unacceptable that corporations are able to silence critical reporting by threatening or starting libel claims which they know the publisher cannot afford to defend and where there is no realistic prospect of serious financial loss. However, we do not believe that corporations should lose the right to sue for defamation altogether … we favour the approach which limits libel claims to situations where the corporation can prove the likelihood of ‘substantial financial loss’ … corporations should be required to obtain the permission of the court before bringing a libel claim. This would encourage robust and decisive action by the courts to prevent trivial and abusive litigation from being commenced at all”.

Before I turn to the second limb of the amendment, I wish to make it clear that there is nothing to stop the directors or officers of a company from suing in their own right; it simply hampers the ability of the corporate body, the trading body, to do so itself. So it is conspicuously moderate and balanced and I hope that it will be acceptable to the Government.

On the second limb, I argued successfully the Derbyshire case. Before that case was decided by the House of Lords, there was a previous, appalling, case of Edward Campion, a rate payer, who distributed a leaflet criticising the Bognor Council. The Bognor Council—not its councillors or officers—sued Campion, who could not have a lawyer. It won, and he was ruined for having distributed the leaflet criticising the council. That is a classical example of the citizen critic being destroyed by a libel action brought by a government body. In the Derbyshire case—the Law Lords overruled Campion—instead of Mr Bookbinder, the leader of the Derbyshire Council, suing for libel, the council sued, no doubt in order that he might avoid any liability in costs, to vindicate what it called its “governing reputation”. Many years before, in the South African case of Die Spoorbond, it was held that a railway company should not be permitted to sue for libel in respect of its public functions.

The amendment seeks to rationalise the Derbyshire principle, leaving the judges to apply it case by case. I agree that, in the end, it is a matter of judicial discretion in particular cases but the amendment is sound in the way in which it is expressed—that non-natural persons, that is to say, corporate and similar bodies performing a public function, do not have an action in defamation in relation to a statement concerning that function. That seems sensible in democratic terms as the officers of the company are able themselves to bring a claim. That is not the position in the United States where it is quite clear that neither the government company nor any public officers can bring a claim for libel. We are much more balanced than that and we allow public officers to sue to vindicate their individual reputations.

The amendment applies the common sense of Derbyshire in statutory form. I do not understand the argument that the Law Lords in some way ruled in Derbyshire against this proposition. They did no such thing. They did not follow the Sullivan rule in a way that prevents individuals from suing, but made it quite clear that anyone performing a governing function as a corporate body could not sue for libel.

I hope that this second limb will be acceptable to the Government. The two limbs are united in these amendments but they need separate consideration. I support both of them.

My Lords, I, too, support the amendment, but I do so on the basis that the general restriction on companies suing for defamation is limited to the requirement in subsection (3) of the proposed new clause that trading entities should have to show actual or likely financial loss before being entitled to sue for defamation. As drafted, proposed new subsection (2) would introduce a restriction on companies that is not so limited and is entirely undefined.

However, the restriction in proposed new subsection (3) is in line with the recommendation of the Joint Committee on the draft Bill, on which I served, and, as the noble Baroness, Lady Hayter, has pointed out, the recommendation of the Joint Committee on Human Rights as well. Whether companies should be able to sue for defamation was one of the issues that the Joint Committee was specifically asked to consider outside the ambit of the draft Bill, and we took a great deal of time and heard a great deal of evidence on this issue. The amendment accords with the sense of many who believe that corporate bodies trading for profit should not be in precisely the same position as natural persons in defamation law.

As in so much of the law in this area, the task is to strike the right balance between the right to free speech and the right to protect reputation. But it is a fact that companies cannot suffer hurt in their feelings and personal reputations in the same way as individuals can. Therefore, many have called for companies to be denied the right to sue for defamation. It is argued that companies have other ways to protect their reputations. It is argued that individual directors can sue, but to bring a suit for defamation is a serious undertaking and would expose those individual directors to substantial personal risk in costs when the real claimant should be the company. It is argued that large companies may have other steps they can take to protect their reputations by advertising or seeking publicity for their position, but that depends on their financial strength. A right to sue for malicious falsehood is often mentioned, but that is dependent on an ability to prove malice, which is notoriously difficult to do.

I take a different view. While companies do not have feelings that can be hurt, they can suffer financially, as my noble friend Lord Lester has pointed out. Defamatory statements about companies can have very serious consequences for their businesses, affecting the jobs of their staff and the prosperity of all concerned in them—whether or not untrue and defamatory statements are made with a view to profit by competitors or innocently by journalists. Therefore, it does not seem to strike the right balance to deprive companies of the right to sue for defamation altogether, quite apart from the fact that it would probably be contrary to the HRA to do so.

However, it seems proportionate and balanced to insist that companies and other non-natural persons trading for profit show that they have suffered or are likely to suffer substantial financial loss as a result of the defamation in respect of which they wish to sue. Imposing that condition recognises the difference in kind between individuals and non-natural persons trading for profit. It would not restrict the right of charities and other not-for-profit organisations to sue, and it is right that it should not do so; for example, charities can suffer from defamation in their future ability to raise funds, but it may be very difficult for them to demonstrate that. Proposed new subsection (3) of this amendment applies only to import a modest and proportionate restriction on the right of trading entities to sue and would introduce a valuable extra reform to this Bill.

Finally, I support the reform suggested by proposed new subsection (4) relating to bodies performing public functions, for the reasons that the noble Baroness, Lady Hayter, and my noble friend Lord Lester have already given, but principally because bodies performing public functions should be open to public criticism, even if private, in just the same way that public authorities are.

My Lords, I, too, want to add a sentence of support to what the noble Baroness, Lady Hayter, and the noble Lord, Lord Lester, said.

I am patron of many charities and it would not be right if we did not strike the right balance. If a charity felt it was defamed because it was a body corporate, the restriction that has been put in here requiring the permission of the court is necessary. We are living in a very litigious society so if you are going to go to court to sue anybody, the permission of the court should be shown.

In proposed new subsection (3) there is the question of finance and the possibility of striking out if you cannot actually show that you have suffered loss. Because of that balance—that common sense that the noble Lord, Lord Lester of Herne Hill, was talking about—I am very attracted to this, and I hope that the Government will accept both limbs of the amendment, because you really could not do one without the other. It strikes a balance. For such a very long time, individuals could sue but reputational damage, as well as financial loss, is often incurred by a number of charities and it would be good to be able to do the same thing in terms of bodies corporate.

My Lords, of course, there is in the Bill a significant hurdle for any claimant, whether a non-natural person or a natural person: they have to show serious harm, so that is a hurdle of itself.

I supported the general tenor of this amendment in Committee but expressed a reservation at that time. Indeed, the Joint Committee on Human Rights expressed a similar reservation, which is: what about the small companies? Of course, I accept that the individual can sue if he or she is sufficiently identified, but if it is a small business—say, the local ice cream vendor; maybe nobody knows them by name but they have a valuable local business reputation—it will have to overcome considerable hurdles before suing. It will have to show substantial financial loss; it may not be very substantial objectively but it may be very substantial to that business. The hurdle of serious harm added to this procedure seems to prevent it recovering in circumstances where it should be able to recover.

Malicious falsehood may be difficult to prove, in the sense that malice is always difficult to establish. None the less, if I say that Hayter & Co. is going out of business, when it plainly is not, it is not difficult to infer malice from that pronouncement. It would be unfortunate if companies had to resort to the alternative tort in circumstances where they should, in my view, be able to rely on ordinary defamation.

My final observation relates to proposed new subsection (4). I accept what my noble friend Lord Lester said about the public function. Deciding whether somebody performs a public function is not necessarily very easy, just as deciding whether something is a public authority for the purposes of the Human Rights Act has caused the courts considerable distress.

I have sympathy with the general tenor of this amendment but I cannot go all the way with it.

My Lords, I thank all noble Lords who have taken part in this short debate. As has been pointed out, Amendment 2 concerns two distinct but related issues. Indeed, my noble friend Lord Lester, who I greatly respect with regard to this Bill in particular, described it as two limbs. That is a nice way of reflecting on the current Government, in having two arms to the same body, and we are seeking to move forward on these matters.

The issues that have been raised again this afternoon were extensively debated during the previous stages of this Bill. These are whether there should be restrictions on the right of bodies corporate and other non-natural persons to bring an action in defamation, and whether any non-natural person which is performing a public function should be prevented from bringing a claim in relation to a statement concerning that function.

In relation to the first issue, the Government have made it clear in previous debates that there is a difficult balance to be struck, as the most reverend Primate articulated. Considerable damage can be done to the reputation of a business by unjustified and defamatory allegations, and this has an impact on all those involved with the business, including its shareholders and employees. On the other hand, we fully recognise the need to ensure that powerful businesses are not able to—for want of a better term—bully individuals or organisations with limited means into remaining silent on issues of public importance by the threat of libel proceedings.

However, if that is the problem we are trying to solve, imposing specific restrictions on the ability of businesses to sue does not seem justified. Wealthy individuals can equally send threatening letters to those with limited means. This is why we think the twin-track approach we are proposing is preferable. It embraces both elements within the Bill and procedural changes alongside it.

First, all claimants—corporate or otherwise—will have to satisfy the new test of serious harm, as my noble friend just mentioned. As we have made clear, it is our intention that the serious harm test will raise the hurdle for bringing a claim and will ensure that trivial claims do not proceed. In order to satisfy the serious harm test, businesses are likely in practice to have to show some form of actual or likely financial loss. The courts have talked in terms of,

“a tendency to directly affect its credit or property or cause it pecuniary damage”.

Quite what that will require will depend on the type of business concerned and the facts of the particular case, and we do not think that it is helpful to attempt to define explicit restrictions in the Bill.

The cost of proceedings is at the root of many of the concerns expressed in the debate on this issue. As I have made clear, we are fully committed to reducing costs and are taking a number of steps to achieve that. The Civil Justice Council is actively engaged in considering the options for costs protection in defamation proceedings and will be reporting to the Secretary of State for Justice in March. The introduction of cost protection measures will provide valuable protection to defendants of limited means when they are faced by an opponent with substantially greater resources.

In addition, we will be bringing proposals for procedural changes before the Civil Procedure Rule Committee shortly. As we explained in the note that we provided to the House before Committee, those proposals will enable key issues—such as whether there is serious harm, what is the actual meaning of the words complained of, and whether they are a statement of fact or opinion—to be brought before the court at the earliest possible stage. In many cases, that will enable early resolution and settlement of the dispute at greatly reduced cost. We will also be encouraging the courts to be more pro-active in managing cases to ensure that a tight grip is kept on those cases which proceed to trial.

We believe that the approach that I have outlined is the best way forward. It will give significantly more protection to defendants with limited means, and lessen the likelihood of attempts being made to threaten and intimidate them, while still enabling businesses to protect their reputation where it has been seriously harmed by unjustified allegations.

I turn to the second element of the amendment. In the case cited of Derbyshire County Council v Times Newspapers, the House of Lords held that local authorities and governmental bodies are already prevented from bringing actions for defamation. As the noble Baroness articulated, the amendment would extend that principle and prevent claims by any non-natural person performing a public function.

We do not consider that extension to be appropriate. As my noble friend Lord Faulks mentioned, it would be a significant restriction on the right of a wide range of businesses and other organisations to protect their reputation, and a clear majority of responses to our public consultation on the draft Bill were opposed to it. A rigid and restrictive statutory provision which would remove the right to claim from a wide range of bodies does not represent a proportionate approach. We consider that it is much better to allow the courts to develop the Derbyshire principle as they consider appropriate in the light of individual cases.

On the basis of the explanation that I have given, I hope that the noble Baroness will be prepared to withdraw her amendment.

My Lords, I thank noble Lords who have spoken, particularly those who have spoken in support—the most reverend Primate, the noble Lord, Lord Lester of Herne Hill, the noble Lord, Lord Marks of Henley-on-Thames, with whom I had the pleasure of serving on the Joint Committee, and the noble Lord, Lord Faulks, who raised an interesting question about small companies such as the ice cream vendor. In the Joint Committee, we went through the question of whether, as in the Australian situation, there could be very big internet companies with fewer than 10 people but enormous turnover. We felt that there was no way to cover that—although, as has been said, if someone is so identified, such as the well-known company Hayter and Hayter, I could probably take action in my own name.

I say two things to the Minister. I am disappointed by his response. The noble Lord, Lord Lester, said that this is moderate and balanced. I am slightly insulted by being called a moderate, but I can live with it occasionally. This is a moderate and balanced response. It is one that I should have thought the Government would accept. To put together the big issue of companies bullying and rich people bullying is not the right comparison. A few rich people do it. In our next amendment, we will come to a strikeout ability, which is the way to deal with those very few—and we know they are—who bully.

We are talking about, day after day, companies threatening anyone who says that they were not perfect with taking them to court, when they know that they can do that because of the depth of their pockets. On the Derbyshire principle, the Government are just wrong. If we want people exercising public functions but privileged to sue on their reputation, that does not give us the confidence for even more outsourcing of public functions. I think that the Government have taken the wrong call on that, and I would like to test the opinion of the House.

Amendment 3

Moved by

3: After Clause 1, insert the following new Clause—

“Strike-out procedure

(1) The court must strike-out an action for defamation unless the claimant shows that—

(a) its publication has caused or is likely to cause serious harm to the reputation of the claimant; and(b) there has been a real and substantial tort in the jurisdiction.(2) For the purposes of subsection (1)(b), no real and substantial tort is to be regarded as having occurred in relation to the claimant unless the publication in the jurisdiction can reasonably be regarded as having caused serious harm to the claimant’s reputation having regard to the extent of publication elsewhere.

(3) Subsection (1) does not apply if, in exceptional circumstances, the court is satisfied that it would be in the interests of justice not to strike out the action.

(4) An order under subsection (1) may be made by the court of its own motion or on an application by any party to the action.

(5) Subsection (1) does not limit any power to strike-out proceedings which is exercisable apart from this section.”

My Lords, perhaps I can be very naughty and thank the House for its support on that Division.

The intention behind Amendment 3, which I move on behalf of my noble friend Lord Browne of Ladyton and myself, sets out a vital procedure—the ability of a court to strike out an action for defamation. This power is vital. Everything that the Bill seeks to achieve has been about reducing costs—which have completely distorted the law on defamation—by facilitating early resolution, as the Minister said in response to an earlier amendment. If the key issues can be decided early on—which the virtual ending of jury trials enables—then lawyers’ time is diminished and costs are brought down.

The costs in these cases, as we have heard, are such that they put the use of the law to protect reputation beyond the reach of all but the richest. The only others who have been able to make use of this law are those who have used no-win no-fee cases to do so—arrangements which are shortly to be ended. This law has been beyond the reach of most people. Virtually no defendant can contest a case, or claimants bring one, as they risk being crippled not just by their own legal costs but by those of the other side. I heard just today of a case involving one day in court which cost £40,000 on each side.

So costs are vital, as is early resolution. Up against a rich newspaper, no one without sizeable means can consider taking on a case. With a multimillionaire, an oligarch or a company even threatening an action, journalists, papers, NGOs or Which? will be reluctant to publish anything, no matter how true, that is going to tie them up in legal and financial nightmares.

The amendment is about the last part of the jigsaw. Having enabled early decision of most issues by clarity of the law and the reduction of the use of juries, we now need active case management and the clear authority of the court to strike out before trial actions that fail the test of serious harm based on a falsehood, or where other jurisdiction is more appropriate.

That clear ability of a court to strike out an action is what we want written into the Bill. It would allow either side to apply for this strike-out or for the judge to start the process. At one level, the amendment would write into the Bill what in effect exists in the Civil Procedure Rules but which will not be evident to the ordinary member of the public, be they a potential claimant or a defendant. Non-lawyers do not even know of the existence of the Civil Procedure Rules, much less what they say.

The Bill has aimed to provide for a lay person—an author or the defamed—a clear statement of what the law on defamation is, without recourse to a lawyer or a legal textbook. Our description of the power of a court to stop an action is clear. It would show to the claimant that unless they could show serious harm to their reputation, and a tort—that it was wrongful—then they should proceed no further. It would indicate to the defendant that they could go to the court and ask for such a strike-out when it was obvious to them either that the claimant had no relevant reputation here or that any such reputation had not been caused serious damage. This is clarity; it would add to the Bill a power that is already there, and it would be a signal that we want early case management so that as many of these issues as possible can be dealt with and, where appropriate, struck out. I beg to move.

My Lords, I cannot support the amendment. One of the difficult things about having a Bill like this is to decide what Parliament should be doing and what the courts should be doing. Parliament has put into Clause 1 this very important barrier of serious harm. In his important reply to the previous debate, the Minister helpfully indicated that serious harm—for example, with a corporate body—would include the likelihood of serious financial loss as one of the factors to take into account. Obviously this is a preliminary hurdle, and obviously the procedure rules, which are not in the Bill but will be in the Civil Procedure Rules, and case management will ensure that a party can come before the judge at the beginning and say, “Strike this out because the serious harm test is not satisfied”.

My first reason for not supporting this is that it deals with matters of procedure that will be dealt with, I think, by the Civil Procedure Rules themselves, a pre-action protocol and case management. The second reason is that the factors that are listed here,

“caused or is likely to cause serious harm … and … a real and substantial tort in the jurisdiction”,

are exactly the kinds of issues that one would expect the judge to have regard to, but the Government have very wisely decided to move against having a checklist—for example, in Clause 4. I think that our judges can be well trusted to be able to apply the serious harm test in Clause 1 without a checklist and without being fettered in any way.

I sympathise with the aim of the amendment, but it is an example of overreach. We should not be writing this kind of procedural detail into the Bill; we should leave it to the wise discretion of the judiciary.

My Lords, I agree with my noble friend Lord Lester. It is possible that the House may remember the contribution that I made to the first debate when I drew the House’s attention to the protocol, which does very much what the amendment seeks to do. Under the current law it is perfectly possible, and indeed it happens on a regular basis, that a court will rule on a preliminary basis and will strike out claims, either pursuant to the CPR or under the inherent jurisdiction. They will manage the case so that preliminary matters are heard—for example, an issue as to meaning—without a full-scale trial. Judges and masters are experienced in dealing with this, and that is a matter that should be left to the protocol and to the masters to develop as a matter of practice. With respect, it is not a matter that should be put in the Bill.

My Lords, I support what the noble Lords, Lord Lester and Lord Faulks, have said. I have to admit to having been a judge, but not a judge who tried this sort of case. I believe that this is a matter that should be left to the judiciary, and the amendment is overemphasising something that really does not need to be done.

My Lords, while the noble Baroness, Lady Hayter, is right to say that costs and early resolution are vital, I suggest that this extra strike-out provision is entirely unnecessary and, further, that it would introduce added uncertainty by bringing in a gloss on the serious harm test in Clause 1. In addition, it would add complexity to Clause 3 by introducing another test for whether or not there should be a strike-out. As has been said, the court is already able to strike out a case that has no merit; indeed, the noble Baroness, Lady Hayter, conceded that. It is right at the heart of these reforms that the Government propose to introduce an early resolution procedure in the rules, so I cannot see why the amendment should be necessary.

My Lords, I am unused to getting such unanimous support from all sides of the House. I am grateful for the interventions from my noble friends Lord Lester, Lord Faulks and Lord Marks and the noble and learned Baroness, Lady Butler-Sloss. As has been pointed out, we are being asked here whether there should be provision in the Bill requiring the court to strike out actions that do not meet certain thresholds, unless the interests of justice require otherwise.

The noble Baroness has made clear that the intention underlying the amendment is to make the law as clear as possible for the ordinary citizen. We share that aim, and have tried as far as possible to make the Bill accessible and readily understandable to those who may need to refer to it. However, the provision that she proposes is simply unnecessary, and could itself cause confusion and unnecessary cost.

As the Government have made clear in previous debates on this point, the courts already have a power in Rule 3.4 of the Civil Procedure Rules that permits them to strike out all or part of a claim where there are no reasonable grounds for bringing it or they consider it to be an abuse of process. The courts are very familiar with that power and we have no doubt that they will use it more often in defamation cases once the new higher threshold of serious harm is in place.

The noble Baroness expressed concern that the Civil Procedure Rules were couched in permissive rather than mandatory terms. We do not consider there to be anything in this point. We see no reason why a court would allow a case to continue if the threshold test were not met.

In speaking to an amendment on this issue in Committee, the noble Baroness referred to the fact that my noble friend Lord Lester included a similar provision in his Private Member’s Bill on defamation. However, as my noble friend has just pointed out, by introducing the serious harm test in Clause 1 we have simply taken a different approach to achieve the same result. We have chosen to make a substantive change to the law rather than a procedural one, but the result is the same: if the court decides that the serious harm test is not met, it will use its power under Rule 3.4 to strike it out.

We believe that that is perfectly clear and that there is no need to create a new strike-out power, which could itself create confusion by largely duplicating the existing power. The amendment would also mean that the court had to assess whether the serious harm test had been met in every case, regardless of whether that was a matter of dispute. That would be unduly burdensome on both claimants and the courts.

Finally, I emphasise again what my noble friend Lord Ahmad said in the previous debate: that we are making progress in relation to our proposals on early resolution procedures. We will be bringing proposals before the Civil Procedure Rule Committee shortly to enable key issues to be brought before the court at the earliest possible stage. We will also be encouraging the courts to be more proactive in managing cases to ensure that a tight grip is kept on cases that proceed to trial. I assure noble Lords that we are committed to addressing these issues and will ensure that appropriate provisions are in place for when this legislation comes into force. I hope that on that basis and on the overwhelming arguments deployed from all sides of the House, the noble Baroness will withdraw this amendment.

I thank all noble Lords who contributed to this debate. I reassure the Minister that it was not just because they all feel so sorry for him about the last two votes that they all suddenly rallied to him. Theirs were genuine views, not sympathy.

All noble Lords who spoke are lawyers. They are very familiar with Civil Procedure Rules. Those of us who get caught up in defamation are not, so this amendment is less about the procedure than about signalling to people that they can apply for strike out. That is the essence of the amendment. It is because of that that I am cheered by the Minister’s response and his encouragement to courts to manage cases. That is undoubtedly half of it.

In Committee, the Minister spoke about new guidelines to go with the Bill. I hope that they will refer to the ability outside the Bill to get a strike out, because most people do not know about that but think the matter has to go to trial. That was the point we were really making. However, I know when I am not going to win a vote. I beg leave to withdraw the amendment.

Amendment 3 withdrawn.

Clause 3 : Honest opinion

Amendment 4

Moved by

4: Clause 3, page 2, line 7, leave out “basis” and insert “subject matter”

My Lords, I move Amendment 4 essentially on behalf of the noble and learned Lord, Lord Lloyd of Berwick, who cannot be here this evening. In the light of what has just been said by the noble Baroness, Lady Hayter, I am hoping that when the Explanatory Notes to the Bill are brought up to date when the Bill becomes law, some of these points will be dealt with in them, which is an authoritative way of doing so.

There are two ways in which I can move this amendment: the long way and the short way. Since I detect in my noble friend Lord McNally’s previous reply not exactly bitterness but a sort of cynicism about certain attitudes, I shall do it the short way because I think we can cut the cackle on this by coming to the point that was troubling the noble and learned Lord, Lord Lloyd of Berwick, and Sir Brian Neill.

The amendment turns on a case called Telnikoff in the context of the honest opinion defence in Clause 3. In Telnikoff, the House of Lords decided that it was insufficient for a letter commenting on a newspaper article to refer to the article in order to establish that it was opinion, not fact. The letter had to be recognisable as opinion on its own rather than in the context of the article. My noble friend wrote to the noble and learned Lord, Lord Lloyd, on 9 January. I shall not repeat what he wrote, nor will I repeat what was said by the Minister. It did not satisfy the noble and learned Lord, which is why he wished to come back to it on Report.

I suggest that if the Minister in his reply can clear up any further confusion by making it clear that in the light of the Bill the Government do not regard Telnikoff as good law, so that if the same facts were to come before the courts under Clause 3(3), a reference to the original newspaper article on which the letter was commenting should be enough to establish the first and second conditions in Clause 3, that would be most helpful. When the noble and learned Lord, Lord Lloyd of Berwick, returns, if he does not find the answer sufficiently clear I will leave it to him to decide what to do at Third Reading. I beg to move.

I support of this amendment and do so by adopting the argument put forward by the noble Lord, Lord Lester of Herne Hill, which, I think, in turn adopts what I described as the compelling argument put forward by the noble and learned Lord, Lord Lloyd of Berwick, in Grand Committee on 19 December at col. GC 522. I commend the recommendation of the noble Lord, Lord Lester, to the Minister.

In rereading the debate in Grand Committee, I am reminded that he offered a very similar opportunity to the Minister on that occasion, which the Minister scorned. I think that the noble and learned Lord, Lord Lloyd of Berwick, was awaiting the letter that became the letter of 9 January 2013. I recollect that in col. GC 528 in the same debate the noble Lord, Lord Ahmad, indicated that he might be able, in the same vein as was suggested by the noble Lord, Lord Lester, to give the comfort that the noble and learned Lord was seeking. I have to say—this should not surprise anybody—that we were all, I think, persuaded by the noble and learned Lord’s argument in relation to Telnikoff and why it should not still be considered to be the law in the same circumstances. I hope that the Minister will be able to respond to the opportunity that he has on this occasion to resolve this issue once and for all.

My Lords, I indeed hope that this will be resolved once and for all. If my noble friend is going to withdraw under the temptation that the noble and learned Lord, Lord Lloyd, can bring this back at Third Reading, I would rather that he tested the opinion of the House. I will try to make as clear as possible on the record the Government’s opinion on this, but I cannot start trying to rerun 20 year-old legal battles.

Clause 3 provides for the honest opinion defence to be available if three conditions are met. Amendment 5 provides that the second condition in subsection (3)— that the statement complained of indicated, whether in general or specific terms, the basis of the opinion—is met if the defendant indicates the subject matter of a letter or article appearing in a newspaper or other publication and the date when it appeared.

On the basis of our discussions with the noble and learned Lord, Lord Lloyd, on whose behalf my noble friend is speaking this evening, we understand that the core issue underlying the amendment relates to what should be taken into account in determining whether the statement complained of is one of fact or opinion. We consider that this goes to the first condition in Clause 3(2)—that the statement complained of was one of opinion—rather than to the second condition in subsection (3).

At common law, when deciding whether a statement is one of fact or opinion, the court can look at the statement only in its immediate context. So if the statement appears in a news story or in a letter to an editor, the court can look only at the particular news story or the particular letter. The intention behind Amendment 5 is to change this so that the court can also look at other documents that provide a context for the statement.

This is a difficult issue, as is evidenced by the varying judicial opinions that were expressed when this was considered by the Court of Appeal and the House of Lords some 20 years ago in the case of Telnikoff v Matusevitch, to which my noble friend has referred. However, on balance, and with the greatest respect to the noble and learned Lord, Lord Lloyd of Berwick, the Government believe that the current law is in the right place. We consider that it should be clear from the document in which the statement appears that the author is expressing an opinion, otherwise a reader cannot know that there is a judgment to be made. They must be entitled to accept as a fact something that is presented as a fact. It follows from this that we cannot accept Amendment 5. Although the Bill abolishes the common law, we can see no reason why the courts would depart from the current approach.

As I have said, a defendant who satisfies the first condition that the statement is one of opinion must also satisfy the second condition that the statement must indicate, whether in general or specific terms, the basis of the opinion. Amendment 4 would replace the word “basis” with the words “subject matter”. The provisions in the Bill reflect the test approved by the Supreme Court in Spiller v Joseph that,

“the comment must explicitly or implicitly indicate, at least in general terms, the facts on which it is based”.

We consider that the word “basis” more accurately captures the essence of that test.

I hope that, on that basis, not only will the noble Lord withdraw this amendment, but that when the noble and learned Lord, Lord Lloyd of Berwick, returns to these shores and reads Hansard, he will accept that he has had a good run for his money but that this is where the Government’s view is and where it will remain.

I am grateful to the Minister for his reply. The further the Bill proceeds through this House, the more I am convinced that he would have made a superb Queen’s Counsel. Maybe as a result of his experience, that will be his next career.

I have no idea whether the noble and learned Lord, Lord Lloyd of Berwick, will be satisfied by the Minister’s answer. I cannot control or fetter him in any way. As I understand it, the Government’s position is that the second condition—

“that the statement complained of indicated, whether in general or specific terms, the basis of the opinion”—

was based on the judgment of the noble and learned Lord, Lord Phillips of Worth Matravers, in Spiller v Joseph, in which he held that it is not a prerequisite of the defence that readers should be in a position to evaluate the comment for themselves. My understanding is that the Government’s position is that Clause 3(3) has been prepared on that basis, and that the amendment of the noble and learned Lord, Lord Lloyd, is therefore unnecessary.

I see the Minister nodding. I hope that the ministerial nod, which I now record in Hansard, will cause the noble and learned Lord, Lord Lloyd of Berwick, to treat it as sufficient for his purposes and for those of Pepper v Hart. On that basis, I beg leave to withdraw the amendment.

Amendment 4 withdrawn.

Amendment 5 not moved.

Clause 4 : Publication on matter of public interest

Amendment 6

Moved by

6: Clause 4, page 2, line 37, leave out “reasonably” and insert “could reasonably have”

My Lords, I shall speak also to Amendment 7. I have taken no part in Committee. I should explain why I am moving this amendment today. I tabled my amendments at the request of Sense about Science, a charity which I founded just over 10 years ago, and from which I have recently retired. It has certainly played a prominent part in the proceedings on the reform of libel law, and I have followed its progress with keen interest. I first thank the Government for their helpful approach throughout, and say how much I appreciate the changes which they have made.

However, there are still some improvements to be made. I was encouraged to table Amendment 7 because it is based on the advice of senior counsel. The point can be made briefly. Under Clause 4, the defendant must show that he, she or they, as the case may be,

“reasonably believed that publishing the statement complained of was in the public interest”.

The amendment would replace “believed” with “decided”. I submit that it would make the clause clearer and simpler. Belief is subjective, much more so than decision. It is often hard to prove belief. It would be open to, possibly endless, argument and discussion, and could well lead us back in the direction of the checklist, which I am sure that all noble Lords wish to avoid.

Further, it may be the case that the defendant is a newspaper. That could make belief even harder to prove. For these simple reasons, I hope that the Government will favourably consider these amendments.

My Lords, in speaking to Amendments 6, 7 and 9, I declare an interest. I am a member of PEN, the defender of writers’ rights, and have been briefed by it in the matter of public interest defence. However, I speak as a journalist of some four decades’ experience, schooled in what were at the time the exacting standards of BBC journalistic behaviour. If that sounds rather smug or perhaps even naïve, following the earlier debate on Leveson today in which enormous generalisations about the nature of the press and its wickedness passed unchallenged, I am aware and proud of the many high standards of journalism in this country, which has served in part to disclose the scoundrels in the industry whom we wish to call to account.

It is against that background that I seek to make the matter of public interest foolproof against capricious and expensive litigation and extended and opportunistic probing of journalists’ subjective motives.

The advantage of the small but significant changes proposed in these amendments is that the defence can still benefit from a subjective element that would require the court to consider the defendant’s state of knowledge at the time of publication, but would limit the claimant’s ability to spin a long and expensive case by probing the defendant’s motives. It is the decision to publish rather than the belief that is critical.

Matters of public interest require objective judgments reasonably arrived at. Journalists must be held to such judgments. The issue of subjective motives is simply not relevant to the case. As Lord Justice Dyson found in the case of Flood:

“The mere fact that an article is published because the journalist or publisher wants to hurt the subject of the article is not material to whether the publication is in the public interest”.

As long-serving practitioners in the area of defamation law have advised the Libel Reform Campaign, an opportunity on the part of an aggressive, outraged claimant to use the litigation to probe into, to prise open and to seek to expose as flawed the motives and good faith of a defendant, including editors and journalists, may be readily exploited. As a writer of fiction, I am well aware of the complexity of human motive and its expression, including my own. But as a journalist, I acknowledge that my examination and exposure of a story must answer the strictest tests of reason and objective judgment. The law must safeguard my right to do so. In leaving open the option of what I might believe and why, some major intentions of the Bill—to reduce the length of cases and their prohibitive expense so as to enable those without means to get redress—would be damaged. I support the Bill.

My Lords, the Government are to be commended for having dropped the checklist in Clause 4 and for introducing instead the generic test, which I think was very much the test that Sir Brian Neill, as an adviser, recommended. There are three separate issues here. I am not sympathetic to widening the reasonable test to one which “could be” rather than “is”. I think that the objective test of reasonableness is right. I am sympathetic to substituting the word “decided” for “believed”. It is about whether what was decided was reasonable and, therefore, it seems to me that decided is a better word. It is not just I who say that: as has been said, it also has been said by leading libel counsel with experience.

I very much hope to persuade the Government to drop altogether Clause 4(2) on rapportage. Rapportage was introduced in my Private Member’s Bill originally—then, with good reason. But now that we have a good public interest test in Clause 4(1), I do not understand why we need the complexity of subsection (2), which I regard as difficult to understand or apply and unnecessary. Reading Clause 4(2) and asking oneself as a lawyer or a human being what it means makes my point. Clause 4(2) states:

“If the statement complained of was, or formed part of, an accurate and impartial account of a dispute to which the claimant was a party, the court must in determining whether it was reasonable for the defendant to believe that publishing the statement was in the public interest disregard any omission of the defendant to take steps to verify the truth of the imputation conveyed by it”.

I think that I understand what is being said but I do not understand why it any longer needs to be in the Bill.

Rapportage, or reportage, covers cases in which the very fact that certain allegations are being made, or that a certain controversy exists, will constitute a matter of public interest. It is in the public interest to report what is being said, irrespective of whether it is true. In such cases, the defendant may be relieved of the normal obligation to seek appropriate verification of allegations before publishing them because the newspaper is a mere reporter. It is not adopting a defamatory position. In light of the amended Clause 4, there is no longer any need to make specific provision for rapportage because the elements of this subset of Reynolds privilege is covered by the general test of whether the statement published was on or part of a statement on a matter of public interest and the defendant reasonably believed that the publication was in the public interest.

Clause 4(2) as drafted is confusing and opaque. It has the potential to cause further confusion in the light of the redrafting of the rest of the clause. Clause 4(2) states that the court must,

“disregard any omission of the defendant to take steps to verify the truth of the imputation”.

The reference to taking “steps to verify” is there because in the checklist in the previous version, one factor was,

“whether the defendant took any other steps to verify the truth of the imputation”.

However, as Clause 4(2)(g) has now gone from the Bill, there is no need to provide that the court should disregard it. To refer to taking “steps to verify” in subsection (2) is confusing.

I very much hope that we can get rid of this altogether. We do not need it. The general standard in Clause 4(1) is good enough to cover rapportage as well. I do not expect the Minister to give me other than a bleak and wintry reply this evening but I would like to think that by the time we come to Third Reading, the shoots of spring may shoot out of the earth.

My Lords, I support Amendment 7. I welcome the Government’s amendment to Clause 4. However, if the change from “believed” to “decided” guarantees that the checklist does not return and that authors will not be exposed to long and expensive cases in libel courts, I as a journalist think that that must be a good thing and I support it.

I wish to make a short point. I wholly agree with what my noble friend Lord Lester said about the confusing drafting of Clause 4(2). It is a most barbaric concoction and, coming in an age when we are all trying to make legislation as accessible as possible to other than legal experts, it really will not do. One particular aspect adds to its inadequacy; namely, reference to,

“an accurate and impartial account of a dispute to which the claimant was a party”.

I do not quite see why this clause should apply only to a dispute to which a claimant was a party. Why would it not apply to a matter in which the claimant had an interest? There may be no dispute there but it could be to do with a campaign where again there is no dispute. Apart from the generality, that is a bit of a drawback.

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.

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.

My Lords, I am grateful to the contributors to the debate. The noble Lord, Lord Taverne, expressed the concerns of Sense about Science, and the noble Baroness, Lady Bakewell, spoke on behalf of, or was briefed by, PEN. These are organisations that I have listened to, and have had contact and dialogue with, throughout the two years’ gestation of the Bill. My aim remains to get as close as possible to the aspirations of those organisations. I suspect that in the end they will still say that we have fallen short but, particularly in Clause 4, we have tried to move in a direction that makes the law better and clearer. I am grateful to the noble Lord, Lord Browne, for his comment on our work on recasting it.

Amendment 8 is a government amendment that owes its authorship to the noble Lord. I am grateful for that and I hope that our acceptance of it is a demonstration of my willingness to listen as the Bill has proceeded. Our amendment provides for the court to have regard to all the circumstances of the case in deciding whether the requirements for the public interest defence under Clause 4 to be satisfied have been met. This amendment responds to concerns raised by the noble Lord, Lord Browne, in Committee that following government amendments to Clause 4 which, among other things, removed the list of factors for the courts to consider, there was a risk that the courts would simply invent a new checklist in interpreting and applying the new defence—a point made by the noble Lord, Lord Taverne.

In the context of that debate, I indicated that we did not believe that a provision requiring the court to consider all the circumstances was strictly necessary, because the courts would do this in any event. I also indicated that in developing a body of case law the courts may inevitably decide that particular factors are relevant in determining whether the defence has been established in a case. That remains our view. However, on reflection, I believe that it would be helpful to send a signal to the courts and practitioners to make clear the wish of Parliament that the new defence should be applied in as flexible a way as possible in light of the circumstances.

Amendments 6 and 7 would change the second limb of the test for establishing the public interest defence under Clause 4, whereby it would be satisfied if the defendant could show that he could reasonably have decided that publishing the statement was in the public interest, rather than that he reasonably believed that that was the case. This is intended to make the test more objective, as noble Lords have indicated. It reflects concern that the provision as currently drafted could lead to claimants seeking to introduce arguments relating to the defendant’s motive, which the courts have indicated is not relevant in relation to the common-law defence. While a claimant might seek to introduce arguments about the defendant’s motive, given the strong signal given by the courts in cases such as Flood to the effect that such considerations are usually irrelevant, we think it highly unlikely that the courts would entertain them.

Let me say here—the noble Lord, Lord Browne, has indicated that he is listening carefully to this—that my absolute intention is for this part of the legislation to embrace and reflect Flood. We are concerned that adopting the wording of the amendment could shift the focus more towards what a hypothetical defendant might have known or what steps they might have taken. This would not reflect the Flood judgment. In Flood, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said that the courts were examining whatever the defendant,

“knew (and did not know) and whatever they had done (and had not done)”.

To paraphrase, the courts have to focus on what the defendant’s state of knowledge was and what steps they took prior to publication. We consider that the current wording in Clause 4(1) better captures this test and better reflects Flood.

Perhaps the Minister could be referred by his officials to what the noble and learned Lord, Lord Brown, actually said in paragraph 113 of the judgment, where he said that there was a single question, which was,

“could whoever published the defamation, given whatever they knew (and did not know) and whatever they had done (and had not done) to guard so far as possible against the publication of untrue defamatory material, properly have considered the publication in question to be in the public interest?”.

As I read that, it is very close to Amendment 6. I mention it because this is a question purely of what was meant, as the noble Lord, Lord Browne, indicated.

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.

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 at 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.

My Lords, I appreciate my noble friend’s determination to give effect to the Flood judgment. I am not sure that the advice that he has received from his department on interpretation is the right view and I hope that he will not just look at the elegance and the style but consider the remarks made by my noble friend Lord Lester. In the circumstances, I shall withdraw the amendment but it may be a matter to which we will return.

Amendment 6 withdrawn.

Amendment 7 not moved.

Amendment 8

Moved by

8: Clause 4, page 2, line 38, at end insert—

“(1A) Subject to subsections (2) and (3), in determining whether the defendant has shown the matters mentioned in subsection (1), the court must have regard to all the circumstances of the case.”

Amendment 8 agreed.

Amendment 9 not moved.

Clause 5 : Operators of websites

Amendment 10

Moved by

10: Clause 5, page 3, line 9, leave out subsections (1) to (5) and insert—

“(1) It is a defence for the operator to show that—

(a) it was not the operator who posted the statement,(b) the operator took reasonable care in relation to its posting,(c) the operator did not know and had no reason to believe that what it did caused, encouraged or contributed to the posting of the statement, and(d) the operator responded to a complaint about the statement with expedition and took such action in relation to the statement as was reasonable in the circumstances.(2) In considering the reasonableness of a defence under this section, a court shall take into account any steps taken by an operator to establish or adopt, and then to enforce or implement, any anti-defamation code of practice, any complaints procedure and any system for ascertaining and making available to a claimant the identity of any person posting any statement sufficient for the claimant to bring proceedings against the person.”

My Lords, there has been an understandable preoccupation thus far with the traditional media, but, of course, the web is becoming an increasingly dominant player in the world of communication. Clause 5 deals with websites and in particular with the position of operators of websites. As fellow Peers will know by now, the Defamation Bill preserves primary liability, fairly, to the author of any defamation and protects and gives a blanket protection to the operators up to the point that a notice of complaint is lodged—and for a period after that.

As we have all said endlessly, it is extraordinarily difficult to strike a balance in this difficult field between on the one hand preventing censorship by threats of libel actions and on the other hand protecting an individual’s personal reputation. The chill factor, mentioned a great deal in Committee, operates on both levels, so to speak. At Second Reading, my noble friend Lord McNally said,

“The Government want a libel regime for the internet that makes it possible for people to protect their reputations effectively but also ensures that information online cannot be easily censored by casual threats of litigation against website operators. Clause 5 of the Bill sets out a framework for how we wish to achieve this”.—[Official Report, 9/10/12; col. 935.]

Fair enough, but my noble friend Lord Faulks and I do not think that the balance has been quite well enough struck—or we would not have put down the amendment. At a previous stage of the Bill, I talked about the position of the little man and we talked earlier today about the position of those without resources in trying to protect their reputations.

One needs to acknowledge that the web is so different from traditional publishing via newspapers and magazines as to be almost another world. It provides a conduit for libel that enables defamations to be carried to the ends of the earth simultaneously at no cost. The libels will not be erased and they are universally and instantly accessible. It is interesting that in Committee my noble friend Lord Allan of Hallam said that,

“there are so many millions of pieces of content being posted by so many millions of people within the United Kingdom and elsewhere that to be able to operate these platforms at scale and not have some kind of defence becomes unworkable”.—[Official Report, 19/12/12; col. GC 574.]

I agree with him on “some kind of defence”, but that has to be a fair defence or it will reverberate unfairly against the individuals libelled.

I remind all noble Lords that Clause 5 says that the operator of the website cannot be liable for any defamation posted, however grotesque or damaging, unless and until a notice of complaint is filed and the operator fails to deal with that notice in accordance with the Bill and the regulations yet to come. That is not sufficient or adequate. Under Clause 5 as it stands, the web operator loses his defence only, as I say, once the notice of complaint has been given and he fails to respond in accordance with the regulations. I am happy that Amendment 17, to be moved shortly by the Government, will put into the Bill the amendment that I moved in Committee that would defeat a defence if there is malice on the part of the operator. The onus will be on the person defamed to prove malice, which is a high bar.

One needs to recognise that sometimes, not infrequently, the primary person responsible for the libel—the author of the statement posted—may not be accessible. I do not want to elaborate on what was said last time except briefly to remind the House that often these libels are anonymous, and behind one anonymous libel is another and so on. It is a commonplace for those affected by the defamations to go to court and get one order, only to find that another is required, and another and another. It is vital that the role and responsibility of the operators should be fair to both sides.

Just consider for the minute what the defamed citizen has to do under the Bill as it stands even to get a notice up on the web. First, he or she will need to get legal advice about what to do—we have spoken a lot about the complexity of this whole web of arrangements. That will be expensive—just that will be too expensive for many citizens—but so be it. There then has to be drafted a complaint notice that satisfies Clause 5(6), explaining why a statement is defamatory—fair enough. There will then be extra tests, or at least extra requirements, under the regulations when passed that may add substantially to the complexity of drawing up and lodging a notice. Other amendments tonight would impose yet more complicated tests on the defamed citizen—Amendment 14, for example. Then and only then, when the notice of complaint has been duly drawn up and served, will the operator of the website have to act to preserve his immunity and defence. There will still be time—I think probably 14 days—after all that when he can consider whether to take down the statement complained about. In that time—we could easily be talking about a month—the libel will be up and will have spread across the globe and back. The more grievous the libel the further it will have travelled and the more damage will have been done.

It is against that background that Amendment 10 is drafted. I suggest to noble Lords that it is neither unfair on nor unduly restrictive of operators. It will for example provide that if an operator was aware that the person posting the defamation had his knife out for the person defamed then it could well be falling foul of proposed new subsection (1)(b) of our amendment, namely that,

“the operator took reasonable care in relation to its posting”.

It could also fall foul of proposed new paragraph (c), which states that,

“the operator did not know and had no reason to believe that what it did caused, encouraged or contributed to the posting of the statement”.

Take another situation, where the operator had a stake in this and was maybe a partner or had some business association with the person posting the defamatory statement. Surely then the operator should be under a special duty to keep an eye on what that person or company was doing. Otherwise, as I say, there could be an unfairness to the person defamed and the operator would not be entirely at arm’s length or wholly unaware. It would not be in a position where it could not anticipate some potentially malign action on the part of the person who posted the defamation. It could be, for example, that it was part of a joint campaign. It could be that the website operator itself had an agenda. More and more websites are campaigning websites and have an axe to grind. Our amendments would at least ensure that where that was the case and the court felt that the operator had not taken reasonable care, and had knowledge or anticipation of what was likely to be posted by the individual or company concerned, it would not be able to hide behind the provisions of Clause 5(2) as it stands.

I think I will cease at this point, except to say that the uncontrolled use of the web is, as many would agree, coarsening our culture. There is a great deal of matter put on to websites every minute of every day that is unseemly, often bullying and sometimes pornographic. There is, as I say, a coarsening of our culture. This amendment will not change all that fundamentally, but it will at least control to some extent what is posted by dint of making the blanket immunity of the operator subject to reasonable and fair conditions.

I leave my noble friend Lord Faulks, who has put his name to this amendment, to deal with the relationship between it and the Defamation Act 1996, and to talk about the flexibility that the amendment will introduce into the defamation regime.

My Lords, the law has been struggling for a little while now, both here and across the world, in trying to find the correct solution to the question of whether, and the extent to which, website operators should be liable for defamation. At the moment, there is no bespoke provision dealing with website operators.

Section 1 of the Defamation Act 1996 was passed to deal with the position of wholesalers, booksellers, newsagents and libraries. It provides a possible defence for website operators, but this defence failed in the case of Godfrey v Demon in 2001 when a website operator did not remove the posting immediately upon being aware of its defamatory content. There is also a potential answer provided by the Electronic Commerce (EC Directive) Regulations 2002, but there is doubt about the level of protection this provides for so-called hosting. There is equally considerable doubt as to what does or does not constitute publication. Therefore, I congratulate the Government on not simply ducking the issue but seeking to address specifically the position of the operators of websites in the Bill.

I also generally applaud the Bill for the reasons that have been given in the course of debates. However, I am concerned that in the provisions of Clause 5 it is too generous to website operators. There is no doubt in my mind that these provisions are the most significant in the Bill. As we were reminded in Committee, nowadays the internet is the main form of communication used by people under a certain age. Even e-mails are something of a thing of the past. So that we can be confident that what we provide by this clause is going to be central in relation to defamatory communications in future, it is particularly important that we get this right.

The terms of Clause 5 leave much to regulations. I would not relish the role of parliamentary draughtsmen in trying to come up with appropriate regulations. It is almost certain that whatever emerges will be out of date almost immediately because of the fast-moving nature of this form of communication. The Constitution Committee of your Lordships’ House, in paragraph 15 of its report on the Defamation Bill, was wise when it said:

“We consider that, as a matter of constitutional principle, the relevant provision should be to the greatest extent possible on the face of the Bill, so allowing full legislative amendment and debate. Moreover, only by seeing the proposed obligations to be imposed on operators will Parliament be able to consider whether the regime proposed is fit for purpose”.

That is why our amendment leaves much to the judge, so as to prevent obsolescence in the law.

The amendment attempts to provide a special defence to website operators, acknowledging the vulnerable position that they may be in but none the less specifically echoing the legislative language of the 1996 Act, placing the burden upon the defendant to show that he, the website operator, exercised reasonable care. What worries me about the current drafting is that the burden is very much on the claimant to surmount a series of hurdles before he can overcome the prima facie defence provided to the operator of a website. This seems to me to be getting the balance wrong and places the website operator in a unique position in the law of defamation.

When the Law Commission in 2002 examined the law of defamation on the internet, it came up with various recommendations, including amending the 1996 Act which is effectively what this amendment does. It also recommended that the industry should adopt a code of practice. My noble friend Lord Phillips and I think that is critical, and it is unfortunate that no such code of practice has emerged. As our amendment is framed, it would place a considerable onus on website operators in general to arrive at a code of practice which, if sensible and reasonable and followed in an individual case, would provide a solid defence to claims in defamation.

There is I think consensus that we should be trying to keep defamation claims out of court, if at all possible. The position after this Bill becomes law means only a well funded claimant with a serious complaint can even dream of bringing proceedings. In respect of that rather small risk, it is clear that website operators can take out insurance in respect of which only modest premiums would be payable. That seems to me a small price to pay for the protection of those who are genuinely aggrieved at defamatory content being posted on a website. In Grand Committee I gave the example of a teacher being accused of being a paedophile—almost certainly fatal to their career and their life.

Nobody should under-estimate the power exercised by website operators. I was a member of the Joint Committee subjecting the Data Communications Bill to prelegislative scrutiny last year, and we heard a great deal of evidence from website operators. It was impressive in terms of the quality, and no doubt expense, of those assigned to advance their position. They did not want to have to store any information which was not commercially useful to them even if it helped government agencies to track down and prosecute criminals. Much was made of their users’ rights to privacy. This is something of an irony since the information that users of websites provide is of course extremely valuable commercially. Website operators now say that it is very inconvenient to take down potentially defamatory material and that it compromises free speech. It is perhaps a little easy to deploy free speech in this context, but let us not get too misty eyed about this in the light of the careless and often ill thought out comments that find themselves on websites.

I fear that this clause as currently framed favours the powerful—namely, the website operators—who have a strong lobby, as opposed to the much less powerful, who might be defamed in the future. Our amendment does something to try and redress the balance. On considering the respective positions of the very powerful and the almost powerless, I know which side I am on.

My Lords, I have the misfortune to be opposed to the amendment, and I shall try very briefly to explain why this is so. As I said in Grand Committee, there is across the world a fundamental difference between on the one hand the Chinese and, on the other, the United States. The Chinese position on the world wide web is to create the great firewall of China and the Chinese intranet and to do whatever it can to be able to censor the use of the web by dissidents of one kind or another. The position of the United States, ever since Bill Clinton’s statute, gives an absolute immunity to United States internet service providers. The European compromise is contained in the e-commerce directive, as the noble Lord, Lord Faulks, indicated, and seeks to strike a fair balance between freedom of speech and personal privacy and reputation in the structure of the regulations. Although it is vague, it is fairly balanced.

The world wide web is, on the one hand, of vast benefit not only to website operators but to the public and the citizens of the world in terms of free expression, which it enhances. On the other hand, the web creates much more capacity to damage reputation and personal privacy. That is the other side of the story. The puzzle is, given that this is a transnational, worldwide problem, what can any one country do to try to strike a fair balance? How can we devise a system that will encourage operators such as Google and Yahoo in this respect, given that they have no particular commercial interest in keeping up anything they post which is controversial? For example, if they post criticisms of Ruritania as a corrupt, disgraceful and oppressive Government, and then a threat is made to them to take it down, they have no commercial interest in keeping it up, even though we as citizens have every interest in their doing so. That is the free speech side of the argument.

I perfectly agree that one must do what one can to provide effective remedies in privacy and defamation claims. I admire the boldness of this amendment, which seeks to take out of the Bill altogether subsections (1) to (5) of Clause 5—that is, the entire carefully formulated procedure, including, in subsection (5), the regulations and what they may provide—and to put in place instead a structure which it is suggested will tip the balance better in favour of the claimant. I will not take the time of the House in going through that except to say that the more I read the burdens that the amendment would place on the operator, the more unbalanced I think they are in what they seek to do.

Furthermore, words such as “reasonable care”, with the burden being on the operator, or,

“did not know and had no reason to believe”,

comprise burdensome tests. I fully realise why my noble friends think that that wording is better than what is in the Bill. However, I do not think that it is. I think that it would give rise to litigation and would unduly fetter freedom of expression not for the website operators—I do not mind about them—but for us, the people who receive information and ideas on the web.

I like what the Government have done which I think strikes a perfectly fair balance. It is a good scheme. I am glad that they will introduce regulations. I very much hope that they will not accept this amendment.

My Lords, I have not taken part in debates on the Bill so far, so I shall be brief. However, I want to say a word or two in support of Amendment 10 in the names of my noble friends Lord Phillips and Lord Faulks. I do so on the non-legalistic issue of equality of arms, which I do not believe currently exists on my reading of the Bill and the comments that my noble friends have made. There is an important issue to be addressed here. Rather to my shame, I had not until recently realised that the Bill provided an opportunity to address this growing challenge.

I have raised this issue before at Second Reading of the Protection of Freedoms Bill on 8 November 2011. I said then:

“It is a small issue, but one that is growing in importance. In future, how are we going to ensure the accuracy of information placed on social networking websites and who will be responsible for this? This is a freedom which is increasingly going to need protecting. … A situation can now arise where people and their businesses can be irredeemably damaged by completely inaccurate statements that are put up on these websites and for which they can obtain no redress. … People are entitled to some clear way of challenging these statements and, where appropriate, of obtaining redress. I would be interested to hear whether my noble friend”—

that was the noble Lord, Lord Henley—

“has any policy developments under consideration to deal with this issue, one that is surely going to increase in importance in the future”.—[Official Report, 8/11/11; cols. 187-88.]

I am afraid that answer came there none. Therefore, I am glad that my noble friends have taken up the cudgels to try to achieve a better equality of arms, as I said.

My noble friend Lord Faulks referred to the power of website operators. I have seen the power of website operators in interviewing talented young people; I can think of one or two who had disobliging statements posted about them which have had a very deleterious effect on their career. The website operators—this is perhaps more the case now than it used to be—have not been too quick to try to remove this information and cleanse the websites.

As I was preparing my speech on the aforementioned Second Reading debate, a case arose of a Portsmouth plumber whose business had been completely wrecked because he was accused of being a paedophile. It turned out that the statement had been posted by a competitor firm. Holiday companies and hotels have been damaged in the same way. However, I have to admit that on certain occasions people have written bullish accounts of their own hotel in an attempt to increase trade.

It was in connection with this last category that I mentioned in my Second Reading speech the role of the website TripAdvisor. A short 24 hours passed before it asked for a meeting. Its approach in discussions with me showed the challenges the Government face—challenges which I think they have not so far tackled but which my noble friends’ amendment does.

First, the TripAdvisor representatives argued that there was no problem and that their customer surveys showed a high level of customer satisfaction. Secondly, when pressed about the response to those who were unhappy, even if they were a small minority, it seemed that for every solution there was a problem: a problem of jurisdiction, given the international nature of website operators, as my noble friend Lord Lester said; a problem of identification—who posts what about whom; a problem of competitive disadvantage as a result of a checking system which could be portrayed as intrusive; and, finally, when all else failed, a problem of data protection, the reasons for this being slightly less clear to me. I said to the representatives that in my view there was an issue of increasing public concern and that the industry—if that is the right collective noun for website operators—needed to agree to establish, publicise and enforce a code of practice which had a suitable element of representation of the public interest in any disciplinary procedures.

So, in enthusiastically supporting this entire amendment, I particularly support its provision in subsection (2) regarding the value to be placed on the defence of having an anti-defamation code of practice.

My Lords, as a website operator, I urge my noble friend the Minister to take no rubbish from website operators. I have great sympathy with the purpose of this amendment. There are a lot of people out there who are essentially defenceless when things appear about them on the web. We need to make sure that the regulations enable them to get easy redress and relief and that we do not allow long timescales to suit operators when short timescales would suit the people who have been defamed. At the same time, as my noble friend said, we have to balance that with our freedom to be rude about people who we need to be rude about and to say nasty things about Ruritania or anywhere else, and to keep the powerful under control. It is a difficult balancing act. I think that the right way to deal with this is in the regulations under Clause 5(5), which can go into some detail and some precision about this. I would hate to be subject to this amendment. As a website operator I really would not know where I was, or what I was or was not allowed to do, particularly with no supporting regulations. Therefore, I cannot support the amendment but I very much support the spirit behind it.

My Lords, I thank all noble Lords who have taken part in this debate. I particularly thank my noble friend Lord Lester for his intervention.

Clause 5 provides a defence to website operators if, upon receipt of a notice of complaint, they follow a process designed to ensure that the issue is resolved with the poster of the material. My noble friends Lord Faulks and Lord Phillips raised concerns in Committee about Clause 5, and my noble friend Lord McNally and I met them to discuss those concerns. I am pleased to say that, as has been acknowledged, as a result of those discussions the Government have been able to bring forward Amendment 17 on the issue of malice, which I shall speak to in the next group of amendments. However, this amendment takes a different approach to that taken by the Government in Clause 5. As has been said, it would replace the Clause 5 defence and the accompanying process with provisions which substantially replicate the defence for secondary publishers currently found under Section 1 of the Defamation Act 1996 but with one important addition. New subsection (1)(d) would require the operator, on receipt of a complaint, to respond with expedition and to take such action as is reasonable in the circumstances.

This additional requirement would mean that, in order to have a defence, the operator would, on receipt of a complaint, need to make a judgment on what action it was reasonable to take. This would inevitably involve them reaching a view on the merits of the case, which in most instances they would not be in a position to do. The fact that they would lose the defence if a court decided that they had not acted reasonably would create a great deal of uncertainty for website operators, and we believe that in practice it would mean that many operators would simply choose to take the material down. That would result in exactly the same situation that we have now—an approach which has been criticised as unsatisfactory not only by a large majority of the responses to our public consultation but by the Joint Committee on the draft Bill and by the Law Commission in its 2002 scoping study on defamation and the internet.

Subsection (2) in the amendment would require the court, in considering whether or not the defence was made out, to take account of any steps taken by the operator to have and comply with a code of practice in relation to defamation, a complaints procedure or a system for providing identity details of posters to claimants to enable them to bring proceedings against the poster. I totally understand the intention behind the proposed subsection but Clause 5 already sets out a simple process in relation to the handling of complaints and the provision of identity details. In the event that a complainant brings proceedings against a website operator, the court will be able to assess whether the operator has complied with that process. This will ensure that the court takes into account how the operator has responded to the complaint. Perhaps I may also inform noble Lords that we will be publishing specific guidance on how the new process will operate for all those involved.

We have heard a great deal about balance. This new approach is about striking the correct balance and also providing protection to website operators. It is about striking a fair balance between those who have allegedly been subject to defamation and freedom of expression and speech. We believe that the defence in Clause 5 strikes a fair balance between all the interests involved. It will help freedom of expression by giving the poster of allegedly defamatory material an opportunity to stand up for it if they wish to do so, and it will give greater certainty to website operators. At the same time, it will enable claimants to secure take-down of the material on a short fixed timescale in the event that the poster does not wish to defend it. Where the poster does wish to defend it, it will also ensure that the Norwich Pharmacal process is more likely to give the claimant the information they need to pursue proceedings. I hope that on that basis my noble friend will be prepared to withdraw his amendment.

I am grateful to those who took part in this debate. I heard what the Minister said but I fear that I remain completely unassuaged. I think that we will rue the day that the Bill goes through in this form. All I can say is that I hope very much that when the regulations come to be drafted and debated, they will in some way compensate for what seems to my noble friend Lord Faulks, myself and indeed others to be a serious misbalance. On that basis, I beg leave to withdraw the amendment.

Amendment 10 withdrawn.

Consideration on Report adjourned until not before 8.53 pm.

NHS Bodies and Local Authorities (Partnership Arrangements, Care Trusts, Public Health and Local Healthwatch) Regulations 2012

Motion to Regret

Moved by

That this House regrets that the NHS Bodies and Local Authorities (Partnership Arrangements, Care Trusts, Public Health and Local Healthwatch) Regulations 2012 (SI 2012/3094) fail to guarantee sufficient representation of local patient interests and, despite Government assurances given to the House at Committee stage of the Health and Social Care Bill on 15 December 2011, have through restrictions on campaigning deliberately tied the hands of Local Healthwatch bodies from giving public voice to those patient interests.

Relevant document: 23rd Report from the Secondary Legislation Scrutiny Committee.

My Lords, this is my second Motion of Regret in relation to the regulations on Healthwatch, the body—or perhaps I should say the brand—created in the Health and Social Care Act.

A central theme in the Act is that local people should be able to influence improvements to local health and social care. To succeed, Healthwatch needs the trust and confidence of the public. To win that trust and to become an effective organisation for patients, it must have independence from the providers, commissioners and regulators of health services, because a patient’s complaint may involve the need to challenge any or all three of those interests. It must also have genuine grass-roots representation from groups and individuals, no top-down organisation, and work and comments derived from sound local information.

In our previous debate on Healthwatch England, I welcomed the appointment of Anna Bradley as its new chair. She has the right skills and experience, and I do not doubt her commitment to try to make the organisation work. However, the fact remains that it is a sub-committee of the CQC and it does not have anywhere near the same levers to pull or incentives to use to drive changes in the system. It simply does not have the power and authority of the three big players in the NHS: the Commissioning Board, the Care Quality Commission and Monitor.

In the regulations that we are considering tonight, that problem is mirrored locally. Local Healthwatch is potentially a powerful mechanism, but it is structurally weak because it relies on local authorities for funding, and it is local authorities that provide the social care that it is meant to monitor.

However, my real concern tonight is that, when local Healthwatch eventually opens its doors, it will be bound and gagged by these regulations. This is contrary to the comments and commitment given by the noble Baroness, Lady Northover, to my noble friend Lord Warner on the sixth day of Report of the Health and Social Care Bill, when she made the following statement:

“The noble Lord, Lord Warner, asked again about campaigning. I said in Committee that HealthWatch England and local healthwatch can campaign. I followed that up with a letter confirming that, which I hope he got—but perhaps he did not—and I reiterate it here. I hope that that is of help to the noble Lord”.—[Official Report, 8/3/12; col. 1958.]

No one would condone a local Healthwatch campaigning against or for a political party but these regulations go well beyond that. They effectively ban local Healthwatch from leading campaigns to change poor services and amend legislation. As Healthwatch England has said in its briefing today, its independence is crucial to ensure that patients and NHS users can share their views and experience and to ensure that those will be acted on appropriately without undue influence.

The noble Earl the Minister will no doubt tell us tonight that the words used in the regulations do not have the meaning that I am placing on them—that in Section 36(2) local Healthwatch has the necessary freedom to undertake campaigning and policy work related to its core activities. However, I am not alone in expressing concern at the actual wording of the regulations. Healthwatch England’s briefing states that paragraphs (a) and (b) of Section 36(1):

“should have been worded more appropriately to avoid any potential confusion around the active role local Healthwatch will have in undertaking policy and campaigning work on behalf of consumers of health and social care services in their areas”.

It goes on to say:

“Healthwatch England would welcome that these concerns be resolved in future statutory instruments. In the interim, Healthwatch England proposes that it works with the Department of Health and the Local Government Association to produce guidance for local Healthwatch and local authorities to assist them to correctly interpret the regulations”.

I say: for once, why can we not have regulations that mean what they say?

Coming just before the publication of the Francis report on the disasters at Mid Staffordshire hospital, in moving these regulations the Government are putting at risk the one prerequisite that Healthwatch needs to do its job, which is the trust of patients and the public. It will undermine the effectiveness of local Healthwatch as the people’s watchdog in health and social care.

Where, too, is the level of independence in the governance of local Healthwatch, promised to this House, again by the noble Baroness, Lady Northover, on Report of the Health and Social Care Act, when she said that,

“we will use the power of the Secretary of State to specify criteria, which local healthwatch must satisfy, to include strong involvement by volunteers and lay members, including in its governance and leadership. This will have the effect that a local authority cannot award a local healthwatch contract to a social enterprise unless this condition is satisfied”?—[Official Report, 8/3/12; col. 1990.]

Do the regulations meet those intentions? Section 34(1) gives two definitions for lay involvement: one that excludes health and social care professionals, but not paid managers and other staff in those services; and volunteers, as unpaid members of the governance of local Healthwatch or its contractors. The definition of a volunteer fails to define who might or might not be included as a volunteer, so could include staff employed at any level in health, social care or local government. If the Government intended that only members of the public who are engaged in seeking out the views of the public about services and monitoring of services should have designated governance roles, these regulations fail.

There are a number of questions that I want to put to the Minister before I conclude. Who was consulted before the draft regulations were published? At what point were the views of Healthwatch England sought? If they were sought, what consideration was given to those views? Will the Minister accept the proposal that the department should work with Healthwatch England and the Local Government Association to produce guidance for local Healthwatch and local authorities to assist them to interpret the regulations correctly?

I conclude with the issue on which I started: public perception, understanding, and confidence in the independence of local Healthwatch. We need local Healthwatch bodies that everyone can rely on to be genuine patient representatives. I am afraid that these regulations, as presently worded, will fail to deliver that.

My Lords, I am becoming increasingly of the view that the Government have mis-sold the concept of Healthwatch. When we first started on this long journey and the Health and Social Care Bill was coming before Parliament, the Government promised that we would get an effective patient-user voice. They promised that we would have a coherent structure. They promised that Healthwatch would ensure that patients’ interests and the voice of users would be heard centrally in the new NHS structures. But that is not what we are getting.

I spent 12 years as director of the national statutory body representing patients’ interests in the NHS and I learnt a number of things during that experience, one of which was that however well argued or well informed the case made on behalf of the users of services in the National Health Service might be, it is not automatically listened to. The powerful vested interests within health militate against that. Let us be clear: there is a power imbalance between the user and the provider of the health service. There is an imbalance in information and in what they can do. For the voice of the users to become as central as repeated government policy has said it should be, that voice has to be substantial and loud. That means that the bodies representing the interests of users have to be able to make waves. They have to make people listen and, on occasion, they have to be a nuisance. That is why, when the Bill was going through Parliament, we asked repeatedly in your Lordships’ House whether Healthwatch would be able to campaign in the interests of the users of the service that they were representing.

We asked in Committee, and the noble Baroness, Lady Northover, assured us that users would be able to campaign. We asked again on Report, and again the noble Baroness, Lady Northover, assured us that that would be the case—Healthwatch would be able to campaign in support of the interests of local health service users. As is widely known, I defer to no one in my respect for the noble Baroness, Lady Northover. To mis-speak once may be regarded as a misfortune; to mis-speak twice begins to look like carelessness. Either the noble Baroness was being extremely careless—repeatedly, both in Committee and on Report—or policy has changed. Despite the intent that these would be vibrant, effective, campaigning voices on behalf of patients, somewhere along the line someone in the Department of Health took a decision and said, “No, we mustn’t allow them to have any sort of effectiveness whatever. They mustn’t be allowed to make waves; they mustn’t be allowed to cause trouble; they mustn’t be allowed to be a nuisance”, because that is what the regulations do.

What are we to make of Regulation 36(1)(a)(ii)? It is unequivocal. Healthwatch will not be allowed to do anything that promotes or opposes changes in,

“the policy adopted by any governmental or public authority in relation to any matter”.

I find it difficult to know what a local Healthwatch organisation will say about the change in the organisation of, say, diabetes services in a particular area that will not be “in relation to any matter”, or determined by a “public authority” or a “policy adopted by” a public authority, so the local Healthwatch cannot object or campaign against it.

I am sure that in trying to defend the extraordinary wording that is placed before us tonight the Minister will try to tell us that paragraph (2) makes it all right. I am aware that the noble and learned Lord, Lord Mackay, is with us, so I hesitate to say that it seems to be a lot of legal gobbledegook. Apparently it will be all right if it,

“can reasonably be regarded as incidental to other activities, which a person might reasonably consider to be activities carried on for the benefit of the community in England”—


“those other activities cannot reasonably be regarded as incidental to activities of the descriptions prescribed in paragraph (1)”—

which is the bit I read out.

That is very clear. I am sure that all the guidance that can emerge from the Department of Health in the future will make it clearer still. But even if you take that as trying to mitigate a blanket effect of forbidding any campaigning that might conceivably be regarded as a,

“policy adopted by … any … public authority on any matter”,

what does it actually mean? What is incidental to other activities? It is not incidental to other activities to say that the reorganisation of diabetes clinics in a particular area is inappropriate. That is what the Healthwatch organisation is there to say on behalf of local users; it is not incidental to something else that it should be doing. What is this meant to mean?

Healthwatch England, all of three hours ago, sent us its comments on the regulations. It said that they could have been worded more appropriately. There is an understatement. I wonder what it really meant. I do not think that the question is one of more appropriate wording. I wonder how much room for manoeuvre Healthwatch England had—given how independent we know that its structure enables it to be—to say what it really thought about the nonsense of the wording. It did feel strongly enough to tell us that it hoped that future regulation in statutory instruments might get it right. That is very interesting.

The definition of an institution that is a political campaigning organisation is any person carrying on or proposing to carry on activities to promote or oppose changes in any law applicable in the United Kingdom. Healthwatch England, by the definition in these regulations, is a politically campaigning organisation. Therefore, no local Healthwatch organisation will be allowed to act in support of a policy that has emerged from the national body representing patients.

I am sure that, however malign the intent was of those who drafted these regulations and of the Ministers who instructed them to do so, they did not mean them to be quite so destructive. I do not know who writes these things. I do not know what they are trying to achieve. However, we should be clear that there will not be one point of contact so that a local Healthwatch would know where to go to be given clear and consistent guidance, because the structure that the Government are creating is fragmented. Each local authority will commission an organisation to provide local Healthwatch services. Individually, around the country, people will try to interpret what the regulations mean—yet they are virtually incapable of being sensibly interpreted.

Of course, there is an answer to this. Ministers could decide, having listened, not to press on with the regulations. They could say that they should be withdrawn. There are two good reasons why they should do that. First, the regulations are appallingly drafted and in practice unworkable—and will be unworkable when they are interpreted in several hundred different ways around the country. The second good reason is that tomorrow we will hear the report on Mid Staffordshire. I suspect that one of the strongest lessons that will emerge from the report is the need for strong, local representation of the interests of local users of the health service. That means strong and effective local Healthwatch organisations. These regulations will not give us strong and effective local Healthwatch organisations, so if the Government are serious in whatever they say in response to tomorrow’s Francis report, they ought to withdraw the regulations tonight and come forward with sensible regulations that will give us the sort of local Healthwatch organisations that the country needs.

My Lords, I support the points made by my two noble friends in their eloquent speeches. I speak as someone who was given assurances about campaigning on Report by the noble Baroness, Lady Northover. My filing system is not up to discovering whether she sent me a letter, but I have no recollection that she withdrew her assurances in any way. The set of regulations in Regulation 36(1) and (2) of Part 6, taken together, totally neuter the ability of local Healthwatch organisations to campaign effectively.

As my noble friend said, the extraordinary thing is that the Government have chosen, with absolutely brilliant timing, to bring this before the House on the day before publication of the Francis report. My noble friend was wise. He did not know when the Francis report was coming out, but the Government had an opportunity to offer the chance to defer these regulations. It is very odd that we are having this debate when no doubt tomorrow there will be an unleashing—a positive avalanche—of rhetoric about the need to put the patient at the centre of the NHS. There was a warm-up on “Newsnight” yesterday. We can see it coming. Now we have a set of regulations that will set up local Healthwatch alongside Healthwatch England. The organisations will be totally unable to campaign against policies that they regard as not in patients’ interests.

I will spend a few moments on the text of the regulations. The Explanatory Note on page 38 of the regulations states:

“Regulation 36 sets out certain political activities which are not to be treated as carried out for the benefit of the community”.

This is an extraordinary statement, but Regulation 36(1) and (2) go rather wider than that. The Explanatory Note does not accurately reflect what is in the regulations. Consideration needs to be given to the quality of the drafting of either the Explanatory Note or of Regulation 36(1)(a) and (b), interrelated with Regulation 36(2). Regulation 36(1)(a) and (b) prevents a local Healthwatch organisation promoting or opposing changes in the policy adopted by any governmental or public body in relation to any matter, including the promotion of changes to the policy, unless under Regulation 36(2)(a) they can reasonably be regarded as incidental to other activities which are acceptable. So it is left to a multitude of small local social enterprises around the country to make a judgment, day by day, about whether what they are doing offends the provisions in Regulation 36(1)(a) and (b), as modified by Regulation 36(2)(a).

Even if we assume that there is some scope under that wording for them to campaign—which I very much doubt on any reasonable interpretation of the words—they will be in a state of uncertainty, and they will be expected to resolve that uncertainty with the minuscule amounts of money they have to carry out their operations. So if the Government want them to be effective with the small amounts of money there is likely to be, why do they want them to be tied-up by and concerned about obscure regulations which call into question their right to do the sane and sensible thing on behalf of patients in their area?

This House operates on the basis that one can accept assurances from government spokesmen while legislation is going through and we do not pursue matters when we are given them. However, as an individual Member of this House, I take umbrage about the assurances we were given on our ability to campaign. And not only me—the point about campaigning was repeated by my noble friend Lady Pitkeathley and again we were given assurances. We did not press this point further at Third Reading but, had we not been given those assurances, I am sure we would have come back to this issue at that stage. The Government have some explaining to do about why those assurances were not reflected in the wording of these regulations.

I support the point made by my noble friend Lord Collins about the extraordinary definition of a lay person. As other interests said to the Secondary Legislation Scrutiny Committee, this definition of lay person and lay involvement creates a situation in which it is possible to have people in local Healthwatch organisations who could be said to be in a position to manipulate discussion and debate on behalf of the very people that a local Healthwatch organisation is supposed to be monitoring and looking into.

Finally, I draw attention to the requirement provisions in Regulations 40 to 43. If one looks at these as a normal human being, they again pose a bureaucratic nightmare that will be excessively burdensome for the small organisations which will have to understand what it all means. I do not think it is beyond the wit of the Department of Health, Ministers and civil servants to produce proportionate regulations in relation to small bodies which spend relatively small amounts of public money.

These regulations are totally disproportionate to what they are trying to regulate in the interests of patients. The best thing the Government can do is graciously to withdraw the regulations, think about what is going to happen tomorrow, reflect on this and, after further consultation with stakeholders, come back with regulations which live up to the promises that the Government made and are more appropriate for the organisations being regulated.

My Lords, just under a year ago on 8 March 2012 we were asked, during the passage of the Health and Social Care Act, to accept a last-minute change of structure of local Healthwatch because, as the Minister put it at the time, on reflection the Government realised that greater flexibility was needed over the organisational form of local Healthwatch. It was not entirely clear what lay behind this sudden realisation, which happened after the Bill had been through the Commons. The House was given only five working days within which to make sense of 50-plus government amendments that were put down at the time to achieve this change.

This was a very unusual action for the Government to have taken and very little explanation was given. Stakeholders in patient and public engagement were not consulted; we were asked, effectively, to give the Government the benefit of the doubt. We continued to put our faith in the Government’s intention as stated in the White Paper, Equity and Excellence, which aimed to strengthen the collective voice of patients through a new independent consumer champion within the Care Quality Commission, manifested at a local level as local Healthwatch with a strong local infrastructure.

During the debate on Report, the Minister described Healthwatch as, indeed, the voice of the people. At that time, we were dealing with the third reform of the way in which local communities influenced their NHS in three years, and there was a general view that, for their sake, we needed to get on with it. To avoid switching off the power for local communities to have a say in local services for too long, we felt the turbulence of further reform needed to be kept to a minimum. We hoped that secondary legislation would give the system its real shape and we would have an opportunity to ensure that the essentials were in place, changes in structure notwithstanding. This secondary legislation, which is among the most difficult to fathom, really fails to reassure.

My noble friend Lady Cumberlege will deal with freedom of speech and action. I would like to ask my noble friend the Minister about two issues relating to who will make local Healthwatch’s decisions on what it does and how it does it, and what type of involvement lay people or volunteers will have in those decisions.

Local Healthwatch must be a social enterprise contracted by a local authority and may have many subcontracts with other organisations—which may or may not be local or social enterprises—to support or carry out its statutory functions. To try to cut through this structural tangle and preserve the essence of local Healthwatch as the Minister intended it to be—the “collective voice of patients” operating through a “strong local infrastructure”—in March 2012 we focused on who would be involved. We debated the independence of local Healthwatch from the local authority that contracts it, and similarly the independence of Healthwatch England from the CQC, of which it is a committee.

We felt that if local people wholly outside the health and social care system were leading this new structure, they would make it work properly, despite any inherent inadequacies which we were not afforded the time to correct. Therefore, we were pleased when on Report the Minister gave a clear and unambiguous undertaking on behalf of the Secretary of State. She said:

“I have listened to the concerns expressed about the need for local healthwatch to have strong lay involvement. I completely agree. This will be vital to the success of local healthwatch. Therefore, I confirm to the House today that we will use the power of the Secretary of State to specify criteria, which local healthwatch must satisfy, to include strong involvement by volunteers and lay members, including in its governance and leadership. This will have the effect that a local authority cannot award a local healthwatch contract to a social enterprise unless this condition is satisfied. I hope that that provides reassurance to noble Lords”.—[Official Report, 8/3/12; col. 1990.]

Despite the evident good intentions behind this undertaking, something seems to have gone wrong with its execution. There is a serious legal contortion in the regulations around the definition of “lay persons and volunteers”. Suffice to say, it can include staff of health and social care commissioners or providers, as long as they are not clinicians.

This brings me to the role of the Secondary Legislation Scrutiny Committee of your Lordships’ House. It considered this SI on 15 January and its 23rd report draws these regulations to the specific attention of the House,

“on the grounds they give rise to issues of public policy likely to be of interest to the House and that they may imperfectly achieve their policy objective”.

The committee noted that staff could be decision-makers in local Healthwatch. The department did not dispute this in its response to the committee, which therefore concluded that,

“the current wording may leave Local Healthwatch vulnerable to manipulation”.

The committee has been unequivocal in highlighting the errors it perceives in the secondary legislation, saying:

“The Department has offered a legal and policy response, but that may not be enough: the Department needs to address urgently the points raised to the satisfaction of the public because without trust in the basic structure the Department simply may not get the volunteers it wants”.

These regulations do not deliver on the undertaking we were given. There is no assurance of independence, credibility or a strong collective voice for patients. Local Healthwatch could be a mere proxy voice spoken by others—indeed, those others are the very people against whom that voice may wish to speak.

To help reassure both this House and the committee, perhaps the Minister could help me with two scenarios. First, could the manager of a care home sit on its local Healthwatch? If he or she did so, how confident would local people be in the conclusions of that local Healthwatch about the quality of services both at that care home and others? Secondly, could a local profit-making provider of primary care be a local Healthwatch contractor? If so, could its manager sit on the local Healthwatch decision-making group? How confident would local people be in the information they obtained from local Healthwatch in helping them choose a GP?

Moving on, what exactly constitutes “involvement”? The regulations require,

“a procedure for involving lay persons or volunteers”,

although the distinction is unclear. As the Secondary Legislation Scrutiny Committee points out, “involvement” is not defined. The main problem is that in paragraph 38 the regulations deliver,

“the involvement of lay persons and volunteers in the governance”,

but not participation in decision-making, which one would have expected to see in Regulation 40(4).

We know from Sections 23 and 26 of the Health and Social Care Act, which relate to the national Commissioning Board and CCGs, that involvement in the context of patient and public involvement may simply mean giving information. There are no criteria for when more is required.

The department advised the committee that although involvement does not necessarily require full consultation or participation in all aspects of an activity, it still requires the taking of steps by the body on which the obligation to involve falls. The appropriate level of involvement will depend on the matter in question, so, in most cases, the plain provision of information would not be sufficient to comply with the obligation to involve. The committee notes the qualifying phrase, “in most cases”.

The department’s interpretation of lay involvement in leadership and governance boils down to the foot soldier role, with the grown-up work of making decisions about what matters to patients and the public and what to do about it left to paid staff, including those to whom those decisions may relate. Those arrangements contrast sharply with the community rights created by the Localism Act, described by the Department for Communities and Local Government’s community rights website as,

“a set of powers which give you more control over your community. You can now have a say in what happens to important local amenities such as shops, parks and pubs”.

We seem to have given local people a say in how their pub, but not their health and social care, is run.

I pose a final question to my noble friend, within the framework of the regulations, to try to obtain further assurance that this is not so. Could the decisions listed in paragraph 42 be made by a decision-making body within a local Healthwatch composed of a majority of people who happened also to be health or social care managers in their day job, provided that they sent copies of the minutes to the people in the local Healthwatch?

I conclude as I started. All of us in this House are committed to a strong patient voice. Those who will be that voice and the public whom they will serve need clarity in the areas of governance that I have outlined to the House. I hope that my noble friend will be able to allay my concerns.

My Lords, it is with regret that we are here this evening regretting that the Government have, through restrictions on campaigning, deliberately tied the hands of local Healthwatch bodies from giving public voice to those patients’ interests.

The regulations seem muddled and unclear. I am surprised that the noble Earl, Lord Howe, has not managed to do better. Over the years, he has witnessed the difficulties that the bodies representing patients have had, ever since the closure of the community health councils. This time around, I feel that the Government are missing an opportunity. I support the view—I always have—that it is essential that local Healthwatch be independent and led by the service users and the public if it is to have credibility and influence. It must not be a tool of those whom it monitors and inspects.

With the Francis report to be published tomorrow, I am sure that it will become evident that a clear, independent voice supporting patients and users of care homes is vital. There should be trust. The dangerous culture of cover-up and not listening to family and friends must be rectified. At the moment, the Patients Association is asked to comment when there is a problem. We need good, dynamic Healthwatches to ensure that disasters do not happen. We need people who know the needs of their local population. We need safety and a good standard of all health and social care. Healthwatch England is there to help and support local groups, but the local Healthwatch should have freedom to do the very best for those whom it should be protecting and supporting. I hope that the Government will realise what is needed and do better before it is too late.

My Lords, I suspect that my noble friend has got the message now that we are not totally enamoured of these regulations. I think back to when we had the White Paper, which was published in July 2010. I remember, as my noble friend Lady Jolly has said, how excited I was then by the fact that in local Healthwatch we were to have an organisation that really would be the collective voice of patients. There was a mechanism so that it would have a very strong infrastructure at the local level.

So far so good, but throughout the passage of the Bill Members of your Lordships’ House fought strongly to get that policy enacted. We were given assurances, as noble Lords have said, and they were given in good faith. Yet now we have the regulations in this statutory instrument, we are not only disappointed but deeply concerned. I share the grave concern of the House’s Secondary Legislation Scrutiny Committee, which says that there is a very real possibility that local Healthwatch is in danger of being manipulated, but our concerns do not stop there.

The Government are right to want local people to have control of local Healthwatch but there is a genuine fear about it being subjected to such complex and draconian restrictions on what it will be able to say and do. It is not entirely clear to us what value local Healthwatch can add to the accountability framework of the NHS. This view is shared by Healthwatch England which, as the noble Lord, Lord Collins, has said, suggests that this could be dealt with by guidance. However, the trouble with guidance is that it does not have any statutory force. However, it could use its powers to sharpen the way in which local Healthwatch operates—as an independent champion through the trademark which all local Healthwatches must have and have to own. I have not given my noble friend any notice of this, but perhaps he might like to think about that and take it away.

Paragraph 36 of the regulations prohibits local Healthwatch from opposing or promoting changes to any national or EU law, any national policy, any policy by a local public authority—including both local authorities, the NHS or “any organ or agency” of either—and any planned or actual changes in any of these. In addition, it prohibits influencing,

“voters in relation to any election or referendum”.

These prohibited activities may be undertaken only if they are incidental to what could be called the core purpose of local Healthwatch—that is, giving people a say in local health and social care—unless that core purpose is incidental to the prohibited activities. This is mind-stretching. That seems to be something of a circular definition whereby X is allowed if it is incidental to Y, unless Y is incidental to X. This is pretty difficult. I have said that it is mind-stretching but I really fear that it will be unworkable. What is certain is that it will be incomprehensible to local people, who are expected to participate in local Healthwatch.

The impact of this provision is likely to have a chilling effect and to negate the aims of Healthwatch. Why should any committed volunteer get involved in local Healthwatch, giving freely of their time and energy to try to influence things for the better, if they risk being penalised for doing so?

I shall describe three situations to the Minister to test this with him, and I hope that he will reassure me on these points. First, say that there was a controversial policy to close an A&E department in order to save money. Would local Healthwatch be permitted to provide evidence to campaigners of how good the patient experiences had been at that threatened department? Would that be banned under Regulation 36 as the promotion of changes to a policy that a public authority proposes to adopt? If the Minister says no, how could local Healthwatch be confident that the local NHS decision-makers would share this view?

Secondly, could people who had been active in a national campaign to improve quality and accountability in the NHS be decision-makers in local Healthwatch? Would local Healthwatch have to avoid any connections to an organisation seen as intending,

“to affect public support for a political party”,

that was in power? Again, if the Minister says no, and decisions on such matters are to be delegated to local authorities, how could local Healthwatch be confident of that?

Thirdly, during a local election campaign, would local Healthwatch be subject to purdah, like democratically elected bodies such as local authorities or the Government themselves? Would that apply even if it discovered serious abuses of vulnerable people with learning disabilities in a residential home during this period? Such a discovery would not reflect well on the local authority commissioners, who are “an organ or agency” of local government under the regulations. Would the local Healthwatch have to keep such concerns secret or risk being penalised by that very same local authority?

The very fact that we have to ask these questions demonstrates that we do not have the right set of safeguards for the independence of local Healthwatch. The fact that local Healthwatch is funded and controlled by local authorities, which it is supposed to be scrutinising, is pretty uncomfortable. The added constraints of Regulation 36 threaten its freedom to speak and to act in the interests of patients and the population. These very complex restrictions seem designed to protect those in politics or in the provision of services who have something to hide. They impoverish the debate on health and social care, whether it is about controversial reconfigurations or a Baby P tragedy. Patients could not care less about politics and just want someone to speak up for them when they themselves cannot.

I urge my noble friend to consider modifying, redrafting or, if possible, removing these restrictions, or to find a mechanism to ensure that they are not implemented in the way that I have outlined and the way that I fear. To me, it is not clear whom they are really designed to protect, but I fear that it is certainly not patients.

My Lords, I thank the noble Lord, Lord Collins, for raising his concerns and other noble Lords for following in his footsteps in sometimes very trenchant terms. A number of concerns have been raised about these regulations during the course of the debate and I will now do my best to address them in turn. A number of noble Lords reminded us of the critical importance of lay involvement in local Healthwatch and questioned why the wording of the regulations does not therefore prohibit employees of a local authority or indeed of the NHS from taking roles in the leadership and governance of a local Healthwatch. Indeed, your Lordships’ scrutiny committee suggested that this might leave a local Healthwatch in some way vulnerable to manipulation or threaten its independence. That concern was picked up by one or two noble Lords. I can, I hope, provide reassurance on this. Indeed, I am sorry that despite the department’s clarificatory submission to the scrutiny committee, it still remains a source of concern.

We completely recognise the importance of local Healthwatch being truly local organisations that are led by local people and involve volunteers. That policy aim is reflected in the way the regulations are drafted. They impose explicit requirements relating to the involvement of lay persons and volunteers. Both those terms are defined. The definitions of “lay” and “volunteer” are designed to be as inclusive as possible. Essentially, they aim to cover those who wish to give up their time for something they feel passionately about to influence change and service improvement. In practice, very often lay people and volunteers are the same group of people, but we thought it important not to frame a definition in a way that would exclude other people who might not define themselves in precisely those terms. The definition should, and does, apply as much to those who have paid jobs but who wish to do their bit for the community in their spare time as to those who do not work or who are retired.

That means that certainly a person with a professional health or social care background could be a member of a local Healthwatch, but unlike some noble Lords, I do not view that possibility as in any way unhelpful or sinister, quite the reverse. A person with insight and expertise on good ways to influence and build relationships in a local community could be an immense asset to those leading a local Healthwatch organisation. I do not regard it as giving rise to an automatic conflict of interest. In most circumstances the person’s paid work would be complementary to the work of the local Healthwatch. Yes, one could certainly imagine circumstances where a conflict of interest might arise, but conflicts of interest are capable of arising in any walk of life and there are well established ways of dealing with them. For me, the upside of enabling local Healthwatch membership to be as diverse and inclusive as possible in relation to its local community far outweighs any potential downside. To say that inclusivity leaves a local Healthwatch vulnerable to manipulation is, I think, an entirely wrong way of looking at things.

I say that particularly in the light of the way that the regulations tighten up the requirements around the role of lay people and volunteers. Regulation 38 makes it a requirement that lay people and volunteers are involved in the governance arrangements of a local Healthwatch. Regulations 40 and 41 specify the involvement of lay people and volunteers in the contractual requirements for local authorities. Regulation 40 also makes clear that the making of relevant decisions by a local Healthwatch must involve lay people and volunteers. Those are mandatory provisions. Taken together, they mean, in simple language, that a local authority will not be allowed to contract with a local Healthwatch unless its governance arrangements include lay people and volunteers. The contract will have to include provisions on lay and volunteer involvement. It is worth noting that these provisions go much further than the regulations that govern the operation of LINks published in 2008, which did not contain any such requirements. We have considerably strengthened this element of the legal underpinning.

Noble Lords asked about the use of the word “involvement”. The term “involvement” here is being used in its ordinary sense. We quite deliberately did not want to define this any further. The appropriate level of involvement in a given situation would depend on the matter in question. In some cases, the simple sharing of information might suffice, but in many, if not most cases, this would be insufficient. Therefore the provisions require a local Healthwatch to involve lay people and volunteers in the making of relevant decisions. That is set out in Regulation 40(1)(a) read together with Regulation 40(2), (3) and (4). That is as far as it is sensible to go, because it would not be reasonable or helpful to insist on a given level of involvement for each and every decision taken by a local Healthwatch.

The other main issue of concern to the noble Lord, Lord Collins, and others is that of campaigning by a local Healthwatch. I am afraid that there has been a considerable amount of unnecessary misunderstanding on this point. I am particularly sorry that the Government’s good faith on our assurances to the House should be called into question. To go back to the beginning, Healthwatch is the new consumer champion for health and social care. This gives it a major role in gathering views in the locality, building the evidence and, from that evidence, formulating reports and recommendations that will improve services and the quality of care. In doing this, it would not be in anybody’s interests not to enable local Healthwatch organisations to speak out. They will be able to speak out, and they will be able to campaign. Specifically, and typically, they will be able to campaign for changes in services in their own localities. However, there might be an issue of regional or national relevance on which they wished to make their voice heard. That would be fine as well.