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Defamation Bill

Volume 743: debated on Monday 25 February 2013

Third Reading

Clause 2: Arbitration service for defamation and related civil claims against members of Independent Regulatory Board

Amendment 1

Moved by

1: Clause 2, page 2, leave out lines 11 and 12

My Lords, I will be brief in moving this amendment. It has the support of the noble Lord, Lord Puttnam, who apologises for not being in his place today. He is in the Far East on a long-arranged trip as one of the Prime Minister’s trade envoys there. He entirely supports my proposals. I also have the support of the noble and learned Baroness, Lady Scotland, a former Attorney-General; my noble and learned friend Lord Mackay, a former Lord Chancellor, and, according to the Times, a “Conservative source” has also given it a grudging approval. I am not entirely sure what a “Conservative source” is, but, of course, I always believe the Times.

As I understand it, it also has the support of the press, which perhaps is most significant of all. During the past months, those of us who have supported Leveson have been subjected to a campaign of vilification, being compared to Mugabe, Castro, Putin and any other dictator that you can think of. When we have spoken or written in favour of Leveson, we have been attacked in reports such as the one that appeared in the Daily Telegraph in November with the neutral headline,

“MPs tainted by scandal among group backing an end to free press”.

I looked down to see, slightly to my surprise, that among the little photographs at the bottom was my own photograph. The caption said:

“Lord Fowler: during 15 years as a government minister, he had plenty of run-ins with the left-wing press, particularly when he announced job losses and spending cuts in the NHS in the 1980s”.

That explains why I have had, according to them, this deep-seated antipathy towards the press, in spite of the fact that I was chairman of two regional newspaper groups after that time. Of course, it is doubtless made particularly painful for me by the fact that all my succeeding Health Secretaries have been carried shoulder high down Whitehall by representatives of the British Medical Association. So, it is not entirely surprising that some of us want to move on from this bitter debate and enter the calmer fields of gay marriage.

The trouble is that when the press have a genuine point, people tend to say, “Here they go again”. Here, as my amendment seeks to make clear, they do have a genuine point. I should make it clear that my amendment in no way challenges or changes my backing for the support generally for Clause 2 and for an arbitration service, as proposed by Lord Justice Leveson. Although a great deal has been written about this particular clause, all too often it has missed out the overall purpose, which is to provide a low-cost remedy for the public and the press without the expense of going to law. That is the essence of what it is saying: for the public to pursue a defamation case, as it stands at the moment, means certain cost and a very uncertain result. My amendment questions whether the two lines at the end of Clause 2 are necessary to bring that aim about. I do not believe that they are and I say that for two reasons.

First, as I made clear, I am a supporter of the Leveson report but it seems to me that the words at the end of Clause 2 go beyond what Leveson himself proposed. Referring to the proposed independent self-regulatory body, Leveson says:

“I also suggest that it considers offering a purely voluntary pre-publication advice service to editors who want support on how the public interest might be interpreted in a specific case before a decision is reached on publication”.

I think that the words at the end of the clause are fairly tentative and certainly go beyond the words in the amendment that,

“the court shall take into account whether a defendant first sought advice”.

Furthermore, as it stands, it gives the impression that we who support Leveson are all concerned with pre-publication controls when that is certainly not the case, and nor has it ever been the case. The authors of this clause might claim quite reasonably that they are also conferring an advantage on newspapers as well as on the public. Nevertheless, the false impression remains, and it would be a vast pity if the beneficial intent of the clause was to be harmed in this way and in so doing give ammunition to those who say that the supporters of Leveson are about statutory control, which I repeat and underline has never been our cause.

The second reason I tabled the amendment is that the whole idea of some kind of pre-publication check is anathema to most journalists. I emphasise that I am talking about working journalists. Remember that the NUJ, as opposed to the proprietors, is in favour of Leveson; it is not against it. It is against the kind of provision that I am seeking to amend for the good reason that in any story of any controversy there will always be people out there who want to stop the story, or at least take the guts out of it. I learnt that very early on as a young journalist. I had been advised to show a series of articles that I had written to the man who had given me access to the story. When I met him, he was furious about what I had written. Very obviously, so that I could see it clearly, a letter of protest to my editor was set out on his desk. Happily, the editor took no notice, but I have never shown an article in advance to any body or person since.

It is most important that the House should recognise that often there is very great pressure not to publish but to keep things secret and out of the public gaze. Noble Lords should recognise how sensitive an issue that is to journalists. I also wonder whether there is an analogy with the BBC’s pulled report on Jimmy Savile. It was an important story killed off not by the reporter or reporting staff but after it got into the equivalent of the checking process, with the result that ITV last week received the award for the scoop of the year from the Royal Television Society at a ceremony that both the Minister and I attended.

My major point is that the two lines at the end of Clause 2 are not necessary and, above all, give an entirely wrong impression to the public of what the clause is trying to do and of the beneficial impact and effect that it could have. I said at the start that the amendment had the support of a wide range of individuals, and, in varying degrees, of two political parties. The only party that has not proclaimed its position is the Liberal Democrats. It may be just my luck that this debate will be replied to by a Liberal Democrat Minister. However, as always, I am an optimist in these things. My noble friend and I are old allies who have fought a number of causes together, and my hope is that the alliance will hold good on this amendment. I beg to move.

My Lords, I hope that it will be for the convenience of the House if I intervene now to put the debate in context. I confirm that my noble friend Lord Fowler and I have been close allies in many battles for press freedom over the decades, and I assure him that this reply comes from a government Minister.

My noble friend’s amendment seeks to remove from the amendment of the noble Lord, Lord Puttnam, which was agreed on Report, a section that goes beyond Leveson in requiring the courts to take account of pre-publication advice from the new regulator in considering whether to avoid exemplary damages.

When we debated the main amendment on Report, I was clear that our objective in respect of Leveson must be to achieve a cross-party endorsement of a solution that works in parliamentary and legislative terms, and has general public support. On Report, I promised that a draft royal charter would be published. This has now been published. It illustrates one example of how a recognition body might be constituted to underpin the tough system of self-regulation for the press that Lord Justice Leveson recommended.

The draft charter is under active consideration in the cross-party talks, and it is important that we allow the talks to progress and reach their conclusion. I have made clear my reservations about the amendment of the noble Lord, Lord Puttnam, being shoe-horned into the Defamation Bill. I do not propose to rehearse the arguments today. The Puttnam amendment is now part of the Bill, which should now be returned to the Commons.

The amendment of my noble friend Lord Fowler is welcome in so far as it will remove an element of the Puttnam amendment that went further than Lord Justice Leveson recommended. No one wants to see Leveson implemented more than I do, but the tripartite talks are the key to achieving that objective, not the Bill as now amended. We should continue to allow the parties the space to agree the most appropriate solution within the tripartite talks.

In so much as he is amending a clause that we do not consider to be effective and which pre-empts what I hope will be a successful outcome to those tripartite discussions, the amendment of the noble Lord, Lord Fowler, makes an unacceptable position marginally better. I shall not ask noble Lords to vote against the amendment, although the overall position will remain that we believe the amendment to be unacceptable.

I shall say that again slowly. I am looking at my words. Basically, I am suggesting that the House should pass the amendment and that the Government will not oppose it. The amended Bill will then go to the Commons for consideration and will come back at ping pong for what I suspect will be a lively debate. However, by then the tripartite talks might have succeeded—I sincerely hope they will have—and my Defamation Bill, which I think unamended is perfectly formed, could then be passed by this House. Those are my recommendations.

Amendment 1 agreed.

Clause 6 : Publication on matters of public interest

Amendment 2

Tabled by

2: Clause 6, page 3, line 36, leave out “believed” and insert “decided”

My Lords, I still feel that the words I moved at an earlier stage are better than those of the Government but, as both sides wish to give effect to what was said in the Flood case, there is not that much between us. In the circumstances, I shall not move my amendment.

Amendment 2 not moved.

Bill passed and returned to the Commons with amendments.