Vol. 720 Friday No. 28 9 July 2010

PARLIAMENTARY DEBATES (HANSARD) HOUSE OF LORDS OFFICIAL REPORT

ORDER OF BUSINESS

Defamation Bill [HL] Second Reading Dog Control Bill [HL] Second Reading Written Answers For column numbers see back page

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© Parliamentary Copyright House of Lords 2010, this publication may be reproduced under the terms of the Parliamentary Click-Use Licence, available online through the Office of Public Sector Information website at www.opsi.gov.uk/click-use/ 423 Defamation Bill [HL][9 JULY 2010] Defamation Bill [HL] 424

whistleblower or the citizen critic who tends to take House of Lords the line of least resistance by censoring information and opinions which the public have need to know. Friday, 9 July 2010. Many examples are likely to be given in this debate. 10 am The Liberal Democrat autumn 2009 conference called for the, Prayers—read by the Lord Bishop of Gloucester. “protection of freedom of expression by reforming the libel laws of England and Wales to ensure a better balance is provided Lord Hoffmann took the oath. between free speech, responsible journalism, scientific discourse and the public interest on the one hand and powerful corporations, Defamation Bill [HL] wealthy individuals and vested interests on the other”. Second Reading After a public campaign which mobilised 52,000 people across the country, all three main political parties 10.07 am recognised in their recent election manifestos that Moved By Lord Lester of Herne Hill defamation law needs further reform. The coalition Government have pledged to reform the law to protect That the Bill be read a second time. freedom of speech. The Bill recognises that defamation law serves an Lord Lester of Herne Hill: My Lords, I beg to move important public interest in protecting a person’s good that this Bill be read a second time. Its central aim is to reputation against unfair attack and calumny. It seeks reform English defamation law so that it strikes a fair to strike a fair balance between free expression and the balance between the fundamental right to freedom of protection of one’s good reputation. That is why the expression and public information and the protection Bill does not, as some free speech NGOs would wish, of a good reputation. It seeks to give better protection follow the American approach and tilt the burden of to free expression, while ensuring fairness and proof away from those responsible for defamatory responsibility in journalism, and necessary protection publications. of the right to a good reputation. It is a measure of the importance of the Bill’s subject-matter that so many The Bill has not been designed by or for the media noble Lords, from such a rich diversity of knowledge or to permit irresponsible journalism. It has been and experience, are taking part. At least as many developed crucially with the expert advice of Sir Brian others have expressed regret that they are unable to be Neill, the distinguished Lord Justice and editor of the here to support the Bill. We will be enriched by two leading textbook on defamation, and Heather Rogers maiden speeches—from the noble Baroness, Lady Hayter, QC, a libel law specialist. Sir Brian, who I am delighted a long-standing champion of consumer interests, and to say is present for this debate, chaired the Supreme the noble Lord, Lord Willis, who has, among his other Court Procedure Committee on Practice and Procedure qualifications, chaired the Commons Science and in Defamation, whose report was implemented five Technology Committee. years later by the noble and learned Lord, Lord Mackay I believe strongly in self-regulation, provided that it of Clashfern, in his Defamation Bill in 1996. As the is supervised by an independent Press Complaints noble and learned Lord, Lord Hoffmann, once noted, Commission, able to provide effective access and to Sir Brian Neill’s knowledge of libel law is second to avoid unnecessary litigation. I am therefore glad that none. At the end of his recent lecture on so-called the noble Baroness, Lady Buscombe, will be able to “libel- tourism”, the noble and learned Lord, soon to explain what she sees as the role of the PCC in relation speak in this debate, explained that he did not want to to the Bill. I hope that it will not be necessary to have a suggest that English libel law was perfect. We look statutory commission and hope that the PCC may forward to hearing his views about what is wrong with have an enhanced role which commands wide public the current law. confidence. In preparing the Bill during the past eight months, I The unsatisfactory state of English defamation law have also been helped by advice from a coalition of is notorious and well recognised both here and abroad. NGOs: English PEN, Article 19, Index on Censorship, It suffers from the twin vices of legal uncertainty and Sense About Science, and in-house lawyers from the over-breadth. It has failed to adapt to the changed BBC, the Guardian and News International. I am world of communication by means of the internet and grateful to all of them and to former parliamentary worldwide web. The litigation it engenders is costly counsel, Stephanie Grundy, who has drafted my previous and often protracted, and it has a severe chilling effect Private Member’s Bills, and to Joanna Dawson, who on the freedom of expression not only of powerful has led the work in my parliamentary office. However, newspapers and broadcasters, but of regional newspapers, I emphasise that responsibility for the Bill is mine. NGOs and individual public critics. That chilling effect, The Bill covers a technical and specialised area of well recognised by our most senior courts, encourages law that has been developed largely by the courts for self-censorship and impairs the communication of public centuries with little intervention by Parliament. However, information about matters of legitimate public interest the underlying issues are of constitutional importance and concern. and concern matters of public policy. They are within Last year, Parliament abolished criminal libel. But the proper province of Parliament as well as the courts. the fear of damages and massive legal costs induced Yet, remarkably, this is the first occasion in modern by civil libel law is markedly more inhibiting than the times on which Parliament has had the opportunity to fear of criminal prosecution. It is the NGO, the examine the substance of English defamation law. The 425 Defamation Bill [HL][LORDS] Defamation Bill [HL] 426

[LORD LESTER OF HERNE HILL] However, the Bill does not abolish jury trials. Nor Bill does not impose a rigid and inflexible code. It does the change in relation to jury trials address provides a framework of principles and rules within so-called “libel tourism”. The same working document which courts interpret and apply the law on a case-by-case argues complacently that no new provisions are needed basis. It builds on what is best in current law, and to deal with defamation via the internet or what it brings that law up to date with the effects of electronic describes as the, communication via the internet. “much maligned multiple publications rule”. I have published full Explanatory Notes setting out I am glad that the Minister, my noble friend Lord the background history, the state of the law and the McNally, replied to my Written Question on Wednesday changes proposed by the Bill. The notes are important that the Government, like the previous Labour in unpacking the Bill’s contents and I hope that they Government, are committed to protecting free speech will be read within and well beyond this House. We against unnecessary interference from the European also have the benefit of a useful note prepared by Mr Parliamentary Committee and the European Commission. Patrick Vollmer of the House Library staff. Turning to the Bill’s contents, I will briefly refer to Although the Government cannot, of course, commit the passages in the Explanatory Notes where they themselves to the detailed provisions of the Bill, I are described in more detail. This will enable me to hope that the Minister will be able to indicate that the speed up. Government share the aims of the Bill set out in Clause 1, paragraphs 47 to 60, define the defence of paragraph 7 of the Explanatory Notes—namely, to: responsible publication on a matter of public interest. “strike a fair balance between private reputation and public It builds on the common-law defence developed in information as protected by the common law and constitutional Reynolds, emphasising the need for flexibility in taking right to freedom of expression … modernise the defences to defamation proceedings of privilege, fair comment, justification, account of the circumstances of publication, ensuring and innocent dissemination, in accordance with the overriding that the defence can cover expressions of opinion as requirements of the public interest … require claimants to demonstrate well as assertions of fact, and making clear that the that they have suffered or are likely to suffer real harm as a result defence applies to neutral reportage. I am glad to note of the defamatory publication of which they complain … require that yesterday the Constitutional Court of South Africa, corporate claimants to prove financial loss (or the likelihood of led by Justice Kate O’Regan came to a similar conclusion such loss) as a condition of establishing liability … encourage the speedy resolution of disputes … make the normal mode of trial, in a matter of South African constitutional law. trial by judge alone rather than by judge and jury … enable the Clauses 2 and 3, paragraphs 61 to 71, rename the Speaker of either House of Parliament to waive Parliamentary defence of fair comment as “honest opinion”. The privilege as regards evidence concerning proceedings in Parliament; clauses strip out unnecessary technical difficulties and and … modernise statutory privilege”. make the defence user-friendly.They update and simplify, The Bill does not cover media intrusions on personal clarifying what the defendant must prove to establish a privacy, data protection and breach of confidence, sufficient factual basis, and stating the elements of the which are beyond its scope. Nor does the Bill deal with defence in clear terms. the regulation of costs in defamation proceedings for Clauses 4 and 5, paragraphs 72 to 83, rename the which statutory powers exist, and will, I trust, soon be justification defence as a defence of truth. They update exercised to tackle the abuse of conditional fee agreements and clarify the defence in significant respects, making and success fees. CFAs mainly benefit wealthy claimants it clear that the defence is based on proof of the and their lawyers, and result in unjust enrichment and substantial truth of what has been published and that inequality of arms. this can be not only where the defendant proves the The coalition Government’s programme rightly truth of some, but not all, of a series of allegations, promises to protect historic freedoms through the but where the defendant proves the truth of some, but defence of trial by jury, which is an important safeguard not the whole, of a single allegation. in serious criminal cases. Jury trial has been abolished for most civil cases but is retained for libel cases. It is Clauses 6 to 8, paragraphs 84 to 98, cover statutory important for juries to be retained for some cases of privilege. Absolute privilege is preserved for fair, accurate defamation, but the presumption should be that the and contemporaneous reports of court proceedings. normal mode of trial will be by judge alone. That will This privilege is extended to various international and promote effective case management and encourage regional courts across the world. the early settlement of cases without need for costly Clause 7 gives effect to the recommendations of the and protracted litigation. I note that Justice, the advisory Joint Committee on Parliamentary Privilege and council of which I am a member, favours that, whereas the Culture, Media and Sport Select Committee of the Liberty, of which I am a friend, takes a traditional other place, by replacing the Parliamentary Papers view in favour of trial by jury. I do not think that one Act 1840 with a modern provision, emphasising that could manage to reform this area without changing reports of parliamentary proceedings are privileged the presumption. and that this cannot be fettered by court order. The European Parliament’s Committee on Legal Clause 8 and Schedule 1 update the qualified privilege Affairs published a working document on 22 June on scheme under Schedule 1 to the 1996 Act. The present the law applicable to non-contractual obligations, known state of the law on statutory qualified privilege lacks as Rome II. In it, the Committee mistakes me for the logic and is internally inconsistent. The new schedule Earl of Leicester, and describes my Bill as a measure resolves these inconsistencies. that, Clause 9, paragraphs 99 to 109, determines “counteracts libel tourism with cost-cutting measures such as the responsibility for publication. It replaces the innocent abolition of jury trials”. dissemination defence under the 1996 Act, setting out 427 Defamation Bill [HL][9 JULY 2010] Defamation Bill [HL] 428 a framework of liability for publishers which is capable Committee of both Houses, resulting in a Bill that of dealing flexibly with technological advances in the would begin its passage in this House. If the Bill is transmission and storage of information, providing read a second time today, I hope we may work with the that those involved in these activities should be liable Government to achieve balanced legislation of which only in circumstances in which they exert some influence we may be proud and which may become a model or control over the content of the publication. That is across the common law world and beyond. I beg to particularly important in the modern technological move. age. Clause 10, paragraphs 110 to 121, deals with the 10.27 am problem that each fresh communication of defamatory Baroness McIntosh of Hudnall: My Lords, standing material is treated as a new publication, and so gives up at this point in such illustrious company teaches me rise to a separate cause of action. It creates a single the perils of asking to speak early in a debate. Be publication rule for the original publisher but the careful what you wish for. However, it gives me an court may disapply this rule where it would be contrary opportunity to be the first to congratulate the noble to the interests of justice. This would allow publishers Lord, Lord Lester, on bringing forward the Bill and to to retain archives without the fear of open-ended say how much I am looking forward to the maiden liability, while leaving open the prospect of redress for speeches of my noble friend Lady Hayter and the claimants in appropriate cases. noble Lord, Lord Willis, both of whom, I am sure, will Clause 11, paragraphs 122 to 129, prevents a corporate make distinguished contributions to the debate, no claimant bringing an action in defamation unless it matter how nervous they are feeling at this moment. can prove that it has suffered, or is likely to suffer, I know that the House is hugely indebted to the financial loss. There would clearly be arguments about noble Lord, Lord Lester, not only for this Bill but for whether one should go further than a corporate claim, other pieces of enlightened legislation for which he but that is a Committee point. has been responsible in the past. I hope that if the Bill Clauses 12 and 13, paragraphs 130 to 144, deal with or something like it is enacted, his name will be for the problem of claimants who bring cases where there ever attached to it. Given the number and quality of is nothing substantial at stake. The clauses require the the speakers the noble Lord has attracted today, I am court to strike out claims where no substantial harm aware that I can contribute little more to the debate has been caused, or is realistically likely to be caused, than my support for his enterprise. I do so with great to the claimant’s reputation by the publication; and to humility, having no special experience or expertise—only consider whether substantial harm has been caused to a long-standing awareness of the inadequacies of the the claimant’s reputation in the jurisdiction, taking current state of the law. Those inadequacies are hugely account of the impact of publication elsewhere. magnified now by the impact of the internet. Clauses 14 and 15, paragraphs 145 to 156, reverse I come from a background in theatre and the the presumption in favour of jury trial to promote performing arts. You might think that it is an area effective case management and to reduce costs in wherein the laws of defamation would not have any defamation cases. particular traction, but, of course, they do. I spent a significant part of my time while I had executive Clause 16, paragraphs 157 to 159, gives effect to the responsibility for theatres worrying about the work of recommendations of the Joint Committee on playwrights who were writing about contemporary Parliamentary Privilege, made in March 1999, that events or living people, and whether those writings Section 13 of the 1996 Act be replaced with a provision might incur the kind of action which this Bill is partly empowering each House to waive Article 9 of the Bill designed to prevent. However, it is not new writing of Rights of 1688-89 for the purpose of court proceedings that I want to quote from in starting my remarks; it is where the speaker would not be exposed to any legal old writing from probably the best of old writers; liability. The authoritative Joint Committee was chaired namely, William Shakespeare. At a crisis moment in by the noble and learned Lord, Lord Nicholls of Act 2 of his great play Othello, Cassio—who is one of Birkenhead, and included the noble and learned Lords, several hapless victims of Iago’s malice—says: Lord Archer of Sandwell and Lord Mayhew of Twysden, “Reputation, reputation, reputation! O, I have lost my reputation! the noble Lord, Lord Waddington, and Lord Wigoder. I have lost the immortal part of myself, and what remains is It received evidence from our most senior judges as bestial”. well as the Law Officers. These are very powerful words. They reminded audiences I am grateful to the Minister and his excellent team then—as they still do—how vulnerable and exposed of advisers for having met to discuss the Bill in advance we are when our reputation is called into question, with me and my team. I have explained that there even when, like Michael Cassio, who was induced by needs to be full public consultation on the issues Iago to drink too much and started a fight, we are raised by my Bill, either by means of a Select Committee partly the architects of our own disaster; the more so on the Bill, or on a draft Bill fashioned by the Government when we are not. That phrase, that builds on our work. The preparation of wise and “the immortal part of myself” enduring legislation takes time and needs to be based is peculiarly resonant, so it is perhaps no surprise that, on informed consultation outside as well as within historically, reputation has been defended at least as Parliament. This House, with its great expertise, has a fiercely as property—it seems to be what duelling was special role to play, but so does the other House. In my mostly about, for example—or that the urge to defend view, the best way ahead would be a draft government even indefensible reputation has led people to bring Bill, subjected to pre-legislative scrutiny by a Joint libel actions—I think of Oscar Wilde, but there are 429 Defamation Bill [HL][LORDS] Defamation Bill [HL] 430

[BARONESS MCINTOSH OF HUDNALL] I do not want to take up time citing examples of recent other notable examples—with disastrous consequences. cases although, having had the privilege of working Therefore, it is no surprise also that over time the law with Dr Simon Singh when we were both trustees of has developed strong protections for those who are NESTA, I watched the progress of his recent appearance attacked in this way. Loss of reputation is no small before the courts with dismay, even though he won his matter. case. Nor can I add anything to the important questions But who is being protected by the law as it is around legitimate defences or jury trial versus hearing applied today? It seems pretty clear from what we have before judge alone, with which the Bill deals and the heard from the noble Lord, Lord Lester—I am sure noble Lord, Lord Lester has outlined. I simply observe, that we shall hear much more of the same from other before sitting down, that the figures from the briefing noble Lords as the debate continues—and from the to which I have just referred are enough on their own, mass of evidence provided by the many individuals even without all the other evidence before us, to indicate and organisations supporting the introduction of his that something is grievously wrong. Writers on all Bill, that it is not always the right people. As the noble subjects—scientists, biographers, reviewers—now live Lord has pointed out, this Bill is not intended to limit in a world where avoiding the risk of libel action is the ability of those, whether individuals or corporations, more important than telling the truth. This is a bad who have been defamed to go to law, but it is intended state of affairs. The enactment of the Bill, or something to bring some balance into a system which presently like it, would go a considerable way to putting it right. favours the plaintiff in libel cases—as is plainly evident I wish it a fair wind from the Government, who really from the amount of so-called “libel tourism”—not should take this opportunity to do something about a only because the burden of proof lies with the defendant long-neglected problem, and a safe passage through but because the costs of mounting a defence are so your Lordships’ House and beyond. prohibitively high that those accused often prefer to settle out of court. 10.35 am I am particularly concerned about the effect on Lord Hoffmann: My Lords, the House is greatly writers and publishers, among whom the “chilling” indebted to the noble Lord, Lord Lester, for raising effect already referred to by the noble Lord, Lord the subject of defamation law for debate. I look forward Lester, has become a serious problem. Although the to the contributions of the noble Baroness, Lady full impact of self-censorship is impossible to quantify, Hayter, and the noble Lord, Lord Willis. I made my it is plainly at work, judging from the evidence collected maiden speech in this House on the Second Reading not only by the noble Lord but by the many supporters of the Defamation Bill in 1995, so I know something of his campaign. I draw your Lordships’ attention, for of how they feel. example, to a briefing I received yesterday from There are provisions in the Bill which I think are Mumsnet.com, somewhat to my surprise as I did not excellent reforms and which I wholeheartedly commend have them down as particularly given to sedition. But to the House—for example, the clause which says that there we are; what do I know? They support the Bill a corporation cannot sue for defamation unless it but make the point that there is further to go in proves that it has suffered, or is likely to suffer, financial protecting websites such as theirs. They say: loss. There seems to me a great difference between the “Mumsnet welcomes this serious engagement with the need reputation of an individual and that of a corporation. for reform of our antiquated libel laws ... However we are sorry to see that the Bill does not provide explicit cover for hosts of An individual’s reputation is part of his personality. It third-party content. Sites like Mumsnet provide a great deal of is what the noble Baroness, Lady McIntosh, in her authored editorial information, as well as hosting unmoderated Shakespearean quotation, called his “immortal part”. discussion; as such we are concerned that our status as innocent He feels the pain when a slur is cast upon it. A facilitators (as opposed to editors or primary publishers) is unclear. company’s reputation, on the other hand, is a commercial A statement in the Bill that ‘hosts of unmoderated third-party asset. It is what brings in the customers, and the comments will be considered innocent facilitators’ would clarify matters. If uncertainty remains and the Bill becomes law we are company does not suffer as long as they continue to concerned that Mumsnet would have to continue to remove come, so it should not be able to sue unless it can show potentially defamatory material, even when we are not convinced that it has suffered financial loss. that it represents a breach of the law, thus severely curtailing Then there is the clause that gives effect to the freedom of speech”. recommendations of the Joint Committee on We should particularly note the words “continue” and Parliamentary Privilege about defamation of Members “potentially” in this submission. Caution is already of this House or the other place in relation to their the watchword of these people and many others. When parliamentary duties. That too is an improvement in the noble Lord replies to the debate, will he say whether the law. In 1995, when I moved the amendment which there is any reason why the Bill, or a subsequent Bill, became Section 13 of the Defamation Act 1996, I did should not be amended to meet this point? so because I thought it was unfair that Mr Hamilton The Libel Reform Coalition, to which the noble should have no right to clear his name of allegations Lord, Lord Lester, has already referred, made up of of parliamentary misconduct. He was entitled to his Index on Censorship, Sense About Science and English day in court like anybody else. If he was innocent, he PEN, among others, tells us in its excellent briefing: should win, and if he was guilty he should lose. As it “Fighting a libel case in England costs 140 times the European happens, the jury disbelieved him and he lost, but that average and routinely costs £1M”, does not affect the principle that he should have been and that, entitled to sue. The Joint Committee agreed that in “out of 158 cases from 2008 identified in Justice Jackson’s review principle a Member of one of the Houses of Parliament of civil litigation costs, none was won by the defendant”. should be entitled to clear his name. However, it drew 431 Defamation Bill [HL][9 JULY 2010] Defamation Bill [HL] 432 attention to some defects in Section 13 and recommended Court of Canada. But there is a clash of cultures when that it be replaced by a provision which is now part of publications by Americans, emanating from America, this Bill. There is a lesson for us here. I am sure that are disseminated in other countries and Americans are the noble and learned Lord, Lord Mackay of Clashfern, sued for libel there. Of course the internet has made it who piloted that Bill through the House, will agree extremely easy to defame people all over the world from that Section 13 was hastily put together at the last a website in the United States. The American reaction minute, and that hasty reforms tend to cause trouble. has been to protest vigorously that other countries It is for that reason that, on reading this Bill, I had should adopt the American rule, or at any rate should some misgivings about some of its provisions. I was not apply their own rule to Americans. They do not greatly relieved when my noble friend Lord Lester said think that our public interest defence is good enough, at the end of his speech that he did not envisage that it and this of course has been seized upon by the media would become law in its present form, but that there in this country, which would naturally prefer to have would be a process of debate and consultation and the American rule. Indeed, they would prefer to have possibly a draft Bill, perhaps even an expert committee. no law of libel at all, as evidence that our rules are too My difficulties were not matters of detail which could restrictive and that the balance ought to be tilted in be considered in Committee, but raised more general favour of the media, as it is in the United States. questions of legislative policy. I cannot help feeling I am relieved to see that my noble friend’s Bill does that there has been something of a campaign over the not accept this argument. But I am slightly puzzled by past year or two by the media to push us into rapid what it does do—which is to take the public interest action. Most of that campaign has been concerned defence, as laid down by your Lordships’ House in with the way in which defamation actions are funded, Reynolds and Jameel, and restate it in its own language. particularly with conditional fee agreements and their I am always nervous, speaking as a former judge, expense. That is perfectly true—it is a great difficulty about legislative attempts to restate rules of common that needs to be addressed. However, it is not addressed law. They lead to expensive litigation over whether or in this Bill, and quite rightly so because the noble not Parliament intended to change things. As the Lord, Lord Lester, says that it is not within its scope. Jameel case appeared to be generally welcomed by the This campaign has been fuelled by hostile criticism press and has been followed by the Canadians, I of our law by the media in the United States. Our should have thought that there was a case for leaving defamation laws do not seem to be any more popular well alone. than our oil companies in the United States. But that It is said that in practice the public interest defence campaign has been seized upon by the press in this is not as useful to the media as might have been hoped. country as demonstrating that our law is in need of That may be true, but it is not easy to say why and urgent reform. It is important to disentangle those certainly there is nothing in the Bill that identifies parts of the argument which have some merit from some aspect of the public interest defence that needs those which, in my opinion, have none. to be changed. As stated in the Bill, it is all much the The law in the United States is extremely favourable same. I suspect, on a purely anecdotal basis, that part to the media. A person who is categorised as a public of the difficulty for the media lies in the expense—which figure, which tends to include almost anyone the press the noble Baroness, Lady McIntosh, alluded to—of would want to write about, cannot sue for defamation mounting a public interest defence, which often means unless he can prove that the writer actually knew what that a newspaper which would have had a perfectly he was saying was false. That is almost impossible to good defence prefers to pay some damages and settle. prove No matter how slipshod the journalism, the If that is right, the problem lies not in the public publisher has a complete defence. That has been in the interest defence but in the costs regime for defamation law in the United States for more than half a century actions. We simply do not have enough information to and it is now firmly settled. I make no criticism of it; know how to address the problem, and I think that it no doubt it suits them. But so far as I can tell, it is would be a pity to muddy the waters of the substantive unique in the world. Courts in this country, Canada. law if the solution lies elsewhere. Australia and New Zealand have all been urged by The other prong of the American reaction has been media organisations, naturally, to adopt that rule, and to say that we should not allow Americans to be sued they have all rejected it as giving too little consideration in our courts for libels emanating from the United to the right to a good reputation. As one Canadian States. Legislation has been proposed in Congress to judge put it: enable Americans to sue before an American jury for “An individual’s reputation is not to be treated as regrettable three times any loss they claim to have suffered because but unavoidable road kill on the highway of public controversy”. of being sued for libel in a foreign court. This seems Instead, we have adopted a public interest defence: to me an extraordinary example of American it is a defence that the article or the book which is extraterritoriality—something which they are very fond complained of was about a matter of public interest of, and something of which I hope the Minister has and that its research and preparation was in accordance taken note. If the legislation passes Congress, any UK with reasonable, responsible standards. That was the citizen who attempts to defend his reputation in this rule laid down by this House in its judicial capacity in country against a libel emanating from the United the Reynolds case and it was strengthened in the States would be liable to a triple-damages action in a Jameel case. I think that that rule strikes a fair balance US court. The proposed American legislation makes between the right to a reputation and the public interest no distinction between actions in foreign countries in having information on matters of public interest. It brought by nationals of those countries and actions has recently been adopted in its entirety by the Supreme brought by others. 433 Defamation Bill [HL][LORDS] Defamation Bill [HL] 434

[LORD HOFFMANN] in mind. Many noble Lords will remember the late Of course, attention has been concentrated here on Lord Aldington, who I think I can say was held in actions brought against Americans by people living great affection by Members of this House. He spent abroad. They are called libel tourists. The leading the last years of his life trying to clear his name of a American campaigner, Dr Ehrenfeld, was sued in this widely published and totally unfounded libel about his country by a Middle Eastern businessman against conduct as an officer in the war. After a long trial a whom she had made extremely serious allegations that jury awarded him £1.5 million in damages. Everybody, he was a financial supporter of terrorism. There are including the jury, knew that not a penny of that sum certain aspects of this cause célèbre about which your would be paid. The jurors only wanted to mark their Lordships might wish to know. First, the law in this disgust at the libel and the way in which the case had country is that if you have a reputation here which has been conducted by the defendants. However, the European been significantly damaged, you can sue here. It does Court of Human Rights, with the practical common not matter that the defamation was sent into this sense which distinguishes that institution, subsequently country from abroad. Nor do you have to be a British upheld a complaint that so high an award was an citizen. That is not only our domestic law but, in cases infringement of the defendant’s right to free speech that have a European element to them, it is binding on and that it might have a chilling effect on the publication us by virtue of the decision of the European Court. In of their opinions. For some conduct, I suggest, a this case, the claimant moved in business circles in chilling effect is exactly what we want. It is a matter of London; he had a house here, and he had a reputation getting the balance right, and in order to do that there here. Secondly, much has been made of the fact that should be an investigation into this matter by an only 23 copies of the book were sold in England. But independent committee, comprising not just the material was also published on the internet. One representatives of interest groups—as the Lord also has to bear in mind the sensible remarks of my Chancellor’s committee did before the last election—but noble and learned friend Lord Bingham of Cornhill, also experts on the law of defamation. Then we can who said in another case: proceed with due speed and in accordance with the “The law would part company with the realities of life if it Government’s promises to reform the law. held that damage caused by publication of a libel began and ended with publication to the original publishee. Defamatory statements are objectionable not least because of their propensity 10.50 am to percolate through underground channels and contaminate Lord Goodhart: My Lords, I am proud to be able to hidden springs”. speak in support of the Bill introduced by my noble Thirdly, Dr Ehrenfeld made no attempt to set aside friend Lord Lester. He and I were friends long before the proceedings or to defend them in any way. They either of us was ennobled. He has a remarkable record came before the judge entirely undefended. of Bills introduced to your Lordships’ House, where This American campaign, which is usually conducted the Government of the day have adopted the Bill, under the banner inscribed “libel tourism”, is actually provided it with time to enable it to go through the about Americans being sued by anybody abroad, whether House of Commons or produced their own legislation nationals or tourists. Perhaps that is why the New for the same purpose. I hope and expect that this Bill York legislature, when it passed a law making foreign will fall into one of these groups and will in due libel judgments unenforceable, called it the Libel Terrorism course—and I hope fairly rapidly—become law. Act, because suing Americans abroad is a form of I will start with a comment on the speech made by terrorism. Whether libel tourism properly so called—that the noble and learned Lord, Lord Hoffmann, who is, actions in England brought by people who have no said that he approved of a number of matters in the connection with this country—is a serious problem is Bill. However, his speech was concerned almost entirely debatable. It was debated fairly inconclusively in the with attacking the way in which defamation is handled Lord Chancellor’s Libel Working Group just before in the American courts. That is well outside anything the election. Mr Justice Eady, the senior libel judge that is relevant to this Bill. The noble and learned who sees libel cases all the time, said that it was not a Lord referred to the fact that the law in the United phenomenon that he came across in his daily life. States was very favourable to the media. There is a Previous reforms of the defamation law have been good reason for this, which goes back to the 1950s and preceded by the report of an expert committee. As I 1960s, when there was a great deal of agitation in the said, I am anxious that because of the head of steam south of the US by people pressing for full civil rights that has been got up as a result of the Americans, we to be given to the black citizens of that part of the should not proceed with precipitate haste. It is true country. Newspapers such as the New York Times, that the reports of earlier committees have taken a which supported the movement for civil rights for long time to bear fruit, and sometimes there has been black people, were sued in state courts in the south a poor crop; but the Government are committed to that were wholly hostile to this view and imposed reform and there should be no undue delay in taking a enormous damages for defamation on those newspapers. little time for careful and dispassionate consideration. The law in the USA was then changed to make it There are matters such as libel tourism and the working impossible for courts in the southern states to consider of the public interest defence about which we simply this. There has been no similar provision in this country, do not have enough information to make a proper so whether or not one approves of what happens in the judgment. USA, it is based on entirely different reasons. The Bill The media are strong and vociferous, but there is no is not concerned entirely with the media—far from it; lobby or interest group for people whose reputations it is also concerned with the rights of all people to have been blackened, and we must bear their interests avoid being overthreatened by the prospect of an 435 Defamation Bill [HL][9 JULY 2010] Defamation Bill [HL] 436 action for defamation. One should look not at what burden should be on the claimant to prove the untruth happens in the USA but at what happens in this of the allegations. That would indeed be a very country. controversial issue—too much so, I think, for inclusion The law of defamation in this country is in this Bill. complicated—probably unavoidably, because it involves The Bill does not tackle two of the main problems the collision of tectonic plates. Article 10.1 of the for litigants in defamation cases: the risk that, if, as European Convention on Human Rights states: defendants, they lose, they will have to pay excessive “Everyone has the right to freedom of expression. This right costs, and the risk that they may also have an excessive shall include freedom. … to receive and impart information and liability for damages. Statutory instruments to reduce ideas without interference by public authority”. the level of contingency fees failed to get through the Article 10.2, however, goes on to say that the rights House of Commons before the election—perhaps because under Article 10.1, they went a bit too far. However, these are matters not “may be subject to … restrictions or penalties as are … necessary for this Bill but for elsewhere. in a democratic society … for the protection of the reputation or I believe that the Bill will be a great improvement in rights of others”. a section of a legal system that, as it stands, is unpredictable Article 8 states: and too expensive. I end by saying that I look forward “Everyone has the right to respect for his private and family to the maiden speech of the noble Baroness, Lady life,” Hayter of Kentish Town, which will immediately follow but subject to, this speech, and that of my noble friend Lord Willis of “the protection of the rights and freedoms of others”. Knaresborough. There are very difficult problems where these tectonic plates collide. I give the American example of Tiger 11 am Woods—although there are similar examples in the Baroness Hayter of Kentish Town: My Lords, I am UK involving people with careers in sport. Is his today reminded of a very dear but late departed friend misbehaviour part of his private life? Yes, of course it of mine, Pam Blandford, who as I was growing up is. Would media coverage in Europe of his misbehaviour taught me the difference between a house and a home. be in breach of Article 8? Hardly, because the right to Her hospitality, warmth, concern and openness receive information in this case would be seen to transformed her house into a home. These past few outweigh the right to privacy. These are very difficult weeks have done much the same for me, because this issues and will continue to be so. The result is that we impressive, perhaps slightly intimidating, building known have a very complicated and out of date law of as a House has, thanks to your Lordships’ welcome, defamation. As a lawyer who practised in fields other been transformed from a House into a Home. This than that of defamation, I find it very complicated. welcome has come even from former Ministers opposite, However, we can work it out with help from briefings. against whom I used to rail and protest. It also came I found extremely helpful a briefing by JUSTICE. I from the noble Lord, Lord Ryder, with whom I had should say that I am a former chairman of that the pleasure of working in television some years ago. organisation. There are also excellent notes in the Their welcome has been paralleled by the enormous Library of your Lordships’ House, and a very good attention, kindness and assistance from the officers briefing from Liberty. and staff, and I thank all concerned for that. Liberty disagrees with Clause 14, which reduces the It is also, for me, a great pleasure to sit among number of cases where a decision will be made by a former MEPs with whom I worked in the European jury. I support Clause 14. Defamation is now the only Parliament and with former colleagues from my trade type of civil case where juries may still make the union days, including my noble friend Lord Radice, decision. I believe in principle that jury trials should who supported me on my introduction and was my be confined to cases that may result in convictions for very first boss some 40 years ago when I started work a serious crime. The use of juries in civil cases has been at the General and Municipal Workers Union. a complete disaster in the USA. Clause 14 retains My arrival here has reminded me of something that access to a jury trial in some cases where the special Zena Parker, wife of the then MP for Dagenham, said circumstances justify it. when she walked into the other place after the The briefings recognise the value of the Bill. Clause 1 1945 election. She exclaimed, “It’s just like a Fabian strengthens the defence of public interest; Clause 8 summer school!”, with so many Fabians having been extends the defence of qualified privilege; Clause 9 elected to that House on that occasion. I am particularly gives further defence to internet service providers and reminded of that sitting here opposite the noble Earl, similar organisations; Clause 12 requires the courts to Lord Attlee, whose grandfather led those Fabian MPs strike out cases where defamatory statements are unlikely with so much distinction. Indeed, I could almost put to cause substantial damage to the claimant; Clause 13 together a Fabian Executive in the House, with three gives power to limit libel tourism by refusing to hear former general-secretaries, a host of former chairs and cases where the defamation is published outside England two Fabian treasurers, including the noble Lord, Lord and Wales and no substantial harm can be established Roper. in England or Wales. It is therefore a particular pleasure to rise in support The Bill refrains from some of the more radical of a Bill standing in the name of another former changes—for example, while Clause 5 may make it Fabian treasurer, whom I met 36 years ago—the noble easier for a defendant to prove the truth of the alleged Lord, Lord Lester of Herne Hill. He was already defamatory statement, it does not propose that the eminent and very learned then, and I was simply 437 Defamation Bill [HL][LORDS] Defamation Bill [HL] 438

[BARONESS HAYTER OF KENTISH TOWN] I shall give just one example of where the threat of young. He remains eminent and even more learned, legal action nearly diminished our access to information, but somewhere along the line I lost my youth. Of and I speak as the doting grandmother of Poppy and course, I am sorry now to find him on the opposite Isaac, who are too young to be with us today and so Bench because in those days we sat together, and there are young enough to be in need of safe, reliable and is still space here on the Bench next to me. tested child car seats. However, the great advantage of the noble Lord, As the House will know, the brilliant and highly Lord Lester, being on the government Benches is that reliable Consumers’ Association, or Which?, campaigns he should have far more influence over another former on all our behalves over a wide range of goods and Fabian employee—the noble Lord, Lord McNally— services. Two years ago, Which? published its annual child car seat report, which included some “Don’t Noble Lords: Oh! Buy” recommendations—vital for every young family to know. Which? was promptly threatened by the Baroness Hayter of Kentish Town: That is the end of manufacturers with being sued for libel and malicious his political career! The noble Lord, Lord McNally, falsehoods unless it completely retracted. Luckily for will answer on behalf of the Government, and I trust parents, Which? refused, knowing the robustness of its that he will take the wise counsel of the noble Lord, research and also confident of its reputation. However, Lord Lester, and give this Bill a fair wind. a year of correspondence, time and money were used I have known a bit about libel from the time that I up. Which? had better things to do with that effort, received the first ever writ on almost my first day at the and we, as consumers, would otherwise have been Fabian Society, having succeeded the late Lord Ponsonby denied our right to know what was best for young of Shulbrede when he arrived in your Lordships’ passengers. House. However, I have also found my name in Private The problem is that the very threat of libel action Eye, the Sunday Sport and various other places in from a body with a large vested interest can silence ways to which I have certainly objected. public discourse. Citizens’ representatives can censor As the noble and learned Lord, Lord Hoffmann, themselves for fear of a libel action, as the legal costs said, there is a delicate balancing act in this area. We could bankrupt the individual or their organisation. need strong protections for the ordinary individual, That means that we, as consumers of information and perhaps vilified for things they never did—for example, ideas, cannot hear what we need for our own democracy the teacher or social worker falsely accused, the victim and well-being. It is for exactly such issues and to of a crime or mishap who somehow becomes the story prevent such mischief that your House—now I can say or even the target for revenge, or the unwitting bystander “our House”—is so well suited. caught up in someone else’s fight. Indeed, as chair of Our present libel laws are not fit for purpose, and the Legal Services Consumer Panel—not an interest we have the chance to change this. We want to defend that is particularly declarable, as defamation is way the right to protect an individual’s reputation from outside our bailiwick—I constantly champion the interests slander, innuendo and defamation. But there has to be of those who need, but are often denied, access to a better balance between this and the public’s right to justice. We must protect the ability of those unfairly good and greater information and opinion. pillared in the press to have the legal means to pursue This Bill, ably put together by the noble Lord, Lord a claim. Lester, seeks to do just that. I urge the Minister to take The other side of the balance is the need for free heed of his wise counsel and of the demands of speech, although not unfettered, irresponsible free English PEN, Sense About Science, Which? and the speech. However, as citizens, we have the right to hear medical colleges, and give this Bill a very fair and those campaigning on our behalf, particularly against speedy wind to help open up the secrets of decision-makers the self-interest of the large, powerful or well organised and corporate interests, for the sake of all our citizens. who have vested interests, which of course can also include the state itself. When I was the chief executive 11.10 am of Alcohol Concern, I was once threatened with a writ by one of the country’s largest brewers over the most Baroness Finlay of Llandaff: My Lords, I pay tribute trivial and nonsensical of issues. But it was a warning. to my noble friend Lady Hayter for her fine maiden I believe in that adage that sunshine is the best speech. I do so with great affection, as I have known disinfectant. That sunshine is often brought to us by her for many years. We often forget in this House how campaigners and journalists, who can use their talents, daunting it is to stand for the first time to address your the freedom of information provisions, research and Lordships, but my noble friend has done so with knowledge to raise public issues on our behalf, whether charm and confidence and has given us the benefit of about food or drug safety, medicine, professional practices, her good sense and experience. planning or other vital decisions taken behind closed My noble friend Lady Hayter is a Welsh girl who doors, often by the rich or powerful. Citizens have a embraced the Labour Party when she was still very right to be well informed on matters of public interest, young. She has been at the heart of the Labour Party public health and public good, and to be kept abreast all her life. She was for many years general secretary of of the ideas and information generated on all of these. the Fabian Society; she was the chief executive of the Rarely is the law court the right venue for such debate. European Parliamentary Labour Party; she sat on the Scientific discourse should take place in academic national executive of the party; and from 2007 to 2008 journals and seminars, not in our courts, unless well she was the party’s chair. The Labour Party became defined barriers are crossed. my noble friend’s family, although I have to say that in 439 Defamation Bill [HL][9 JULY 2010] Defamation Bill [HL] 440 her private life she now has the joy of grandchildren, issue of press self-regulation. These are two sides of who she adores. I just wish that her parents could have the same coin and, when we are addressing defamation, been alive to celebrate her entry into this House and to it is important that we look at that issue. Libel reform have heard her address today. must be coupled with reform of press self-regulation. I One of the pamphlets which she was involved in know that this Bill recognises the importance of self- writing—she has written a number of important policy regulation in its reference to codes of conduct, but it documents—was Men who made Labour. All that I does not mention reform. One of the main reasons can say to her is that when they come to write “Women that people resort to libel action is because the current who made Labour”, you, Lady Hayter, will most system of self-regulation offers insufficient remedies. certainly be among them. It was the Select Committee on Culture, Media and Sport in its recent report on press standards which I now turn to the Bill, add my tributes to those of made an explicit link between libel law and self-regulation. others and say to the noble Lord, Lord Lester, who is a At paragraph 558, the report recommended, great champion of freedom and rights, a thank you for “that the Government consider whether proposals to reduce the initiating this Bill. It is wrong that scientists, NGOs, cost burden in defamation cases should only be made available to authors and journalists should be prevented from those publications”, publishing information in the public interest due to including newspapers, their concerns about being ruined by libel threats. We “which provide the public with an alternative route of redress have all known those cases where rich individuals, through their membership of the PCC”— such as the press baron Robert Maxwell, used libel injunctions to freeze articles exposing his dishonest the Press Complaints Commission. However, the conduct. The fear of litigation by the rich and powerful committee also added that that would not work unless often casts a shadow over independent journalism, press self-regulation became more effective and more chilling the sort of investigative reporting which is credible. I know that the noble Baroness, Lady Buscombe, essential to our political well-being and vital to a will speak—she of course chairs that body—and I culture which is free of corruption. Large corporations know that she has been anxious to make it run a more have brought actions against NGOs and newspapers effective regime. Reform there is vital. without even having to prove financial loss, as we have My concern with the libel reform debate to date is heard. We have also recently seen courts allowing that it has not engaged sufficiently with the general super-injunctions to create total silence where events public; it has very much been dominated by the press. scream for public awareness, such as in the horrifying This has meant that not only has there been insufficient Trafigura case. scrutiny of some of the claims that are made, but the views of the public, particularly with regard to their However, I have concerns, like others, about elements protection from scurrilous journalism, have not been of the Bill. I should declare an interest as a member of heard. Failure to take the public into account when the board of the Media Standards Trust and I sat for you are reforming law does not usually make for law 12 years on the board of a newspaper, the Independent, that has public confidence. so I am very aware of some of these issues. I am concerned that some elements of the Bill remove This is an issue of getting the balance right, and I helpful correctives on the excesses of the press. I am know that that is difficult. The question that I leave not convinced that the capping of damages at this House and the noble Lord, Lord Lester, with is: £10,000 could be sufficient to stop the press from how can we change the law to protect journalists who going to print with a story that it thought would do have a regard for accuracy, truth and fairness and attract a great deal of public attention. Nor do I think who know what a genuine public interest is? How do that the burden of proof should be reversed. The well we protect them, but distinguish them from those established principle that claimants carry the burden whose standards are not as high? So I applaud the of proof should not be abandoned too readily. I agree strengthening of the public interest defence and the and I am delighted that the multiple publication rule general purpose of the Bill, but I urge the noble Lord should be reformed. I also of course heartily endorse to consider strengthening it with a greater balance the idea that we should strengthen the public interest towards those who are traduced by libellous journalism. defence. However, some things are missing here. One of 11.18 am them, of course, is that whole issue of cost, mentioned Lord Thomas of Gresford: My Lords, I also by others. For a long time, libel actions were out of the congratulate the noble Baroness, Lady Hayter, on her reach of the ordinary litigant and, indeed, remain so, maiden speech and, as a Welshman, welcome her to but recently we have seen the introduction of the this House. She reminded me of an occasion some no-win no-fee conditional arrangement, which has years ago when I spoke at Peking University in Beijing had the unintended consequence whereby, instead of about this House of Lords. I had some 200 students just allowing access for many who might not have had looking at me rather blankly, even when I said that this access to the courts before, it has involved the ramping House was full only when we were discussing sex and up of costs in libel actions yet further. It has also fox hunting. That should give your Lordships an idea allowed claimants to pursue claims where there has of how long ago that was. I wondered if there would been no substantial harm. This is one of the issues be any questions. At the end, I was asked by a young that we are not addressing adequately here. lady, “To what extent do the provisions for pensions My other concern is regarding balance. In order to brought in by the Labour Government reflect the reform the law, it is also necessary to look at the whole values of the Fabian Society?”. To be asked that 441 Defamation Bill [HL][LORDS] Defamation Bill [HL] 442

[LORD THOMAS OF GRESFORD] As my noble friend Lord Lester said, the internet question in Peking University in Beijing rather floored throws up new difficulties. Pressures on freedom of me, and I asked her to tell me the answer. I am quite expression have grown with the internet and the sure that she knew what it was. dominance of the clickerati. As one commentator put it, internet users do far more than just download I welcome the Bill and the initiative of my noble information. A single download may unwittingly create friend Lord Lester in bringing it forward. The common a legal quagmire that crosses continents and encourages law treated freedom of expression as a residual liberty, challenges and hard-fought legal battles which threaten that is to say, a liberty which existed in the gaps long-cherished principles. Freedom of expression touches between the criminal law of obscenity, libel or contempt everyone: lawyers, politicians, journalists, newspaper of court. If historically there ever existed a recognised editors, internet providers and servers, celebrities, scientists, freedom, it was a freedom to express opinions or large corporations, small charities, NGOs, or even disclose information when the actual expression of ordinary individuals. The example cited by the noble those opinions was not forbidden by law. In 1885, Baroness, Lady McIntosh, from Mumsnet, shows what Dicey, in his Introduction to the Study of the Law of a burden it is for an organisation such as that to have the Constitution stated that, continually to edit its internet site. The whole area of “at no time has there in England been any proclamation of the the law is as complex as the issues or interests which it right to liberty of thought or to freedom of speech”. is required to address.

Legislation frequently fails to bring about the I commend my noble friend on having cut through consequences it was intended to achieve. We thought the maze and on introducing a degree of clarity into that the Human Rights Act would have acted as a the arena. He has done so at a price, knowing full well magic potion to resolve all the problems involving or that he will not be able to satisfy everyone, as our relating to freedom of expression, yet here we are debate today demonstrates. Nor can he address every today. However, the Human Rights Act focused minds issue in the Bill; he has had to leave out certain on the whole concept of freedom of expression, and in considerations and, in doing so, he has opened himself so doing altered perceptions. More people today are to criticism. However, he has put together a Bill, alive to their right to freedom of expression than at which, to use his words, could pass, could be effective any time before. That is a spontaneous reaction which and be brought into law. It is a reflection of judicial is to be applauded, but as soon as people became interpretive trends over the past decade and of his aware of another right, the right to privacy, the tension professional experience and knowledge of this area of between that right and the right of freedom of expression the law. He has, modestly, invited help in fashioning inevitably followed. The clash of the tectonic plates, a this vital piece of legislation, and it will be up to the phrase that my noble friend Lord Goodhart used, Members of this House to consider how wide-ranging then emerged the Bill should be in the absence of a complete overhaul The Human Rights Act places demands on our of the law, but we would not be here if it were not for judges which they may not have entirely succeeded in my noble friend zeroing in on the principles which, to meeting. The jurisprudence which has emerged reflects cite him, seek to strike a fair balance between reputation those tensions. There has been some inconsistency of and public information on matters of public interest. approach and a certain muddle. It is that muddle which brought about the super-injunctions, that concept It is a difficult balance to strike. Dr Dario Milo, an which figured in the Trafigura case, the injunction outstanding South African lawyer and academic, in used to prevent the publication of a report on alleged his UCL thesis, The Constitutionalisation of the Law dumping of toxic waste in the Ivory Coast. There was of Defamation, argued that constitutional rights must an attempt to invoke that ban on the subsequent shape the contours of modern libel law: freedom of reporting of parliamentary questions asked by Paul speech, rights to reputation and dignity and the protection Farrelly MP relating to that report. Although that afforded to the public interest. He pointed to the clash application was eventually withdrawn, the matter has of constitutional rights in the decision of the Canadian not really been settled once and for all. Supreme Court in the Toronto Star case, where the court ruled that a new defamation defence was required Perhaps once such a situation developed, the terms as a result of the constitutional protection of freedom of the injunction should have been varied, but there of expression, the defence, as the court put it, of ought never to have been any room for doubt whether reasonable, responsible communication on matters of parliamentary proceedings could be subjected to a public interest. That is the concept which my noble super-injunction of that type. The Parliamentary Papers friend Lord Lester has adopted in Clause 1. What was Act 1840, which was meant to provide such a degree of fair comment is now termed by my noble friend in protection, was not strong enough to resolve the matter Clause 2 as “honest opinion”. That is an easily understood beyond dispute. A major advantage of my noble friend’s expression founded in the Dr Singh case, to which the Bill is that it abolishes the 1840 Act, but Clause 7 noble Baroness, Lady McIntosh, referred. He was places parliamentary proceedings on a distinct, protected accused of libel by the British Chiropractic Association. statutory footing by affording them absolute privilege. The Court of Appeal stated in that case that judges It may not prevent an application for a super-injunction would not rule on matters of scientific controversy, as in future, but it will curb encroachments into areas it was not up to them to disentangle fact from opinion that ought never to have been curtailed in that way. It where scientific controversies were concerned. The is a very good example of what the Bill does to achieve court felt that the term “honest opinion” better reflected simplicity. the realities of the issues. 443 Defamation Bill [HL][9 JULY 2010] Defamation Bill [HL] 444

In stating the key issues to be addressed by the Bill, 11.32 am my noble friend Lord Lester has rightly put the public interest at the forefront, and has attempted to resolve Baroness D’Souza: My Lords, I add my congratulations the issues relating to privilege, be it absolute or qualified, to the noble Baroness, Lady Hayter, on an inspiring and to place responsible journalism on a clear footing, comaiden speech. following the Reynolds guidelines and the Jameel case. What needs to be said on this wide-reaching and I noted the criticisms of the noble and learned Lord, vital aspect of freedom of expression has already been Lord Hoffmann, about the attempt to include in the said by the noble Lord, Lord Lester of Herne Hill, Bill the principles stated in the Reynolds guidelines, and other noble Lords. They all spoke with great but a number of judgments were given in that case, eloquence. I confess that I have nothing much more to and my noble friend has attempted to put together a add. However, I add my support to this Bill and will list of guidelines drawn from a number of judgments. take up one or two points. Before doing so, I shall state Like the noble and learned Lord, Lord Hoffmann, I my position. Long experience of defending free speech have some reservations about Clause 13. I acted for as the cornerstone of democracy has led me to the the leader of the Workers’ Party of Singapore, Mr Ben conclusion that there should in all cases everywhere be Jeyaretnam—Jeya—when we brought an action for a presumption of transparency, free speech and access libel in this country against the Straits Times, which to information, unless and until a clear infringement had disparaged our success in Jeya’s earlier appeal to of another fundamental individual right can be the Privy Council. That was a successful appeal which demonstrated. In the case of defamation, as we have caused Singapore to abolish appeals to the Privy Council. learnt today, that would mean that reputation has The action was struck out on the basis that the Straits been wilfully damaged or financial loss suffered, unless Times had little circulation in this country—about one is dealing with matters of serious public interest. 1,000 copies were distributed—and that Jeya had no A number of landmark judgments by the European reputation here to speak of. That was the decision, Court of Human Rights, admittedly based largely on which could not be appealed because of cost. criminal defamation, nevertheless helped to establish a set of principles. They include: the pre-eminent role When Jeya died last year, the Guardian and the of the media in informing public opinion on matters Times carried obituaries, which indicates the reputation of public interest and in acting as the public watchdog, he had in this country. I also represented him in which requires that the media be accorded particular Singapore in one of the libel cases which were brought latitude; that a defendant must not be required to against him by the then Prime Minister and others. We prove the truth of value judgments, statements reflecting lost, surprisingly, but at least I did not suffer the fate of public opinion or allegations based on rumours or the Mr George Carman QC who appeared in the next case statements of others; and that private individuals have brought against Jeya in a Singapore court: the damages a much narrower limit of acceptable criticism than were doubled because Jeya’s counsel pursued the slightly governmental bodies or political figures. The underlying dangerous line that that Government used actions for rationale is that the public interest in the widest sense libel as a means of ruining political opponents—it was cannot be supported in the absence of these freedoms. absolutely true at the time. Defamation laws as they presently exist undoubtedly Introducing this political element reminds me of have a chilling effect on freedom of expression, as has the election we have just had. The success of the leader been said by almost everyone. The enormous costs of our party in the prime ministerial debates led to the involved alone cause the less wealthy among us to most incredible flood of abuse from some of the agree to the suppression of the truth. Even the costs of right-wing popular press. I had a letter published in finding out whether a given statement or article might the Guardian saying that it is an illegal practice under be defamatory can be prohibitively expensive. the Representation of the People Act to defame a The incidence of failure to report on matters clearly candidate, even though my noble friend had successfully in the public interest because legal bargaining intervenes removed criminal libel from the statute book only is large, as is the number of cases settled pre-trial, and months before, which might have been a better way to inevitably there will be an even larger number that proceed. never come to light. I am thinking of reporting of Libel actions are all about cash. You have to be medical and pharmaceutical information, environmental wealthy, destitute or mad to bring proceedings in this threats, information on the fitness to lead of political country. We acted for Jeya pro bono, which is the only and other leaders, revelations on corruption and the way in which people can bring an action unless they like. One of the longest running cases in legal history fall into one of the categories to which I referred. concerned criticism of a technique of dental anaesthesia There are, of course, many problems to be resolved: to which some patients reacted adversely. Some of costs, damages, conditional fee agreements and success them even died. A dentist associated with this method fees, which were referred to by the noble Baroness, managed to convince the courts that the article was Lady Kennedy. I am particularly concerned that the defamatory of him. The case ran for over three years ordinary individual is inhibited and denied access to and cost the medical journal involved millions of justice. His reputation may be badly damaged in his pounds at current rates. own area by a local newspaper or other media outlet, It appears that judgments now tend to favour free but there is no remedy for a person in such circumstances. speech, but the costs of getting to the stage of a court I hope that these are matters that we will pursue at case, no matter that the defendant is ultimately vindicated, another time, but I urge noble Lords to support the are huge and exert a chilling effect. Moreover, the Bill and to give it a fair reading. width of potential liability is very great and involves 445 Defamation Bill [HL][LORDS] Defamation Bill [HL] 446

[BARONESS D’SOUZA] a crippling cost on the author or the newspaper concerned, everyone who has had a part in a supposedly defamatory even if the libel proceedings fail. publication. It can include the publisher, the author In 1964, Lord Devlin said in a speech in the Appellate and even the printers. How many editors of scientific Committee that, journals are there who have to ponder every word of a “a man who wants to talk at large about smoke may have to pick given critique before publishing? A small specialist his words very carefully if he wants to exclude the suggestion that journal, which will be well known to all the lawyers in there is also a fire, but it can be done”. this House, Tobacco Control, was almost put out of The problem is that it can be done only by walking a business by libel laws without any action being taken legal tightrope, which imposes a very substantial cost against it. The insurers of the journal, which was bill. inevitably critical of tobacco companies, decided that the risk of being sued was too great as a possible I much enjoyed, as I know the whole House much £2-million action was at stake. Eventually the journal enjoyed, the speech of the noble and learned Lord, went ahead on the basis that every article was read by Lord Hoffmann. I can best summarise my reaction to a libel lawyer. The conditions were strict: even material what he said by recalling one of his speeches in the ualready published in the US was disallowed since Appellate Committee in 2006. He said that it was, that is not considered to be a defence. “with a reluctance verging on disbelief that one is driven to Current laws in the UK are unsatisfactory on several conclude that the deliberate opinions of Lord Wilberforce and counts and do not reflect the explosion in electronic Lord Diplock were quite wrong”. communication such as the internet. Furthermore, the The noble and learned Lord, Lord Hoffmann, spoke law needs to deal with the multiple publication rule. of the different approach in the United States, even One of the most egregious aspects of our law is that it though he accepted that this Bill does not echo at all fails to protect the whistleblower. The noble and learned the provisions of United States law. He then described— Lord, Lord Hoffmann, has expressed concerns about critically, I think—what he said was a campaign by the libel tourism and the potential Americanisation of media to reform the law, as if there were something UK defamation laws. British libel law is undoubtedly reprehensible about those who have the vital function antithetical to the protections afforded the press by of communicating ideas and information drawing our the US constitution, but this Bill is not about libel attention from their vast experience to the damage tourism and seeks only to protect the free expression done by the current state of the law. of those within the borders of the UK. The noble and learned Lord objected to Clause 1, However, as in everything, there is a balance to which deals with the defence of responsible publication be struck. What is needed above all is clarification on matters of public interest. He objected on the basis of the current laws and their application to allow that the courts have already recognised such a defence. individuals and corporations to protect themselves They have, but Clause 1 serves a most valuable function from malicious attacks, and to enable fair comment because it clarifies the criteria, which are—with all due and the absence of enforced self-censorship. The Bill respect—confusingly stated in a number of judgments, goes some way in achieving this and is a welcome many of which are conflicting. addition to the armoury required to protect the vital He was concerned about hasty reform; namely, that right to freedom of expression. we should not act too speedily. Let us look at Clause 10, which will remove the rule derived from the Duke of 11.38 am Brunswick’s case in 1849. There is no question here of Lord Pannick: My Lords, I, too, warmly welcome reform being rushed. That case established that each the Bill brought forward by the noble Lord, Lord fresh publication of the same material gives rise to a Lester of Herne Hill, and I congratulate him on doing new cause of action with its own limitation period. so. I should confess to your Lordships that I was the The rule is a substantial impediment to free speech unfortunate advocate for the United Kingdom because newspapers and others who make archive Government in the European Court of Human Rights information available on websites are at real risk of in the case of Lord Aldington, which was mentioned being sued when material is downloaded from the by the noble and learned Lord, Lord Hoffmann, in internet, however many years have passed since the which the court held that damages of the magnitude original publication. of £1.5 million, which were awarded by the jury, were The noble and learned Lord, Lord Hoffmann, also a breach of the right to free speech. I hope that does said that we must remember the interests of those who not, as the libel lawyers would say, lower me in the are the victims of libel. Of course we should, but we estimation of right-thinking people in your Lordships’ do not assist the interests of libel claimants by maintaining House. I should also mention that the successful advocate legal provisions which are slow, expensive and obscure. in those proceedings, who acted for Count Tolstoy, Why should we allow libel claimants to bring proceedings was the noble Lord, Lord Lester of Herne Hill. unless they have suffered, or they are likely to suffer, Libel lawyers often begin their submissions to the substantial harm to their reputation? Clause 12 will jury by quoting from Ecclesiastes: remedy that defect. Indeed, I suggest that Clause 12 “A good name smells sweeter than the finest ointment”. does not go far enough. I do not understand why The problem is that the current state of the law has Clause 12(2) allows for exceptional cases where it is in odorous consequences. It undoubtedly allows the rich the interests of justice for the libel claim to proceed and the powerful to prevent or at least dilute critical even though there is no substantial harm or likelihood comments about their activities by bringing, or even of it. Perhaps the noble Lord, Lord Lester, in his reply, threatening to bring, libel proceedings, which impose can explain what these cases are. 447 Defamation Bill [HL][9 JULY 2010] Defamation Bill [HL] 448

The noble Baroness, Lady McIntosh of Hudnall, Yet so abused have our libel laws become that justice cited from “Othello”. Of course, there is another and right are constantly being denied to a wide spectrum famous quotation from “Othello”, which is Iago’s of individuals and organisations who wish to question plea: the truth, interpret the facts or comment on what they “he that filches from me my good name believe to be right. What is more, the ideal that, Robs me of that which not enriches him, “We will sell to no man … either Justice or Right”, And makes me poor indeed”. has become a cruel parody where the UK has not only The problem is that the Iagos of the 21st century bring become the world capital for “libel tourism”, with libel proceedings and they deter newspapers, publishers other Governments like the United States passing laws and others from commenting on their behaviour. The to limit damage to their citizens, but our citizens are current state of the law of libel damages the good increasingly being silenced by the cost of defending name of the English legal system. even the most valid of expressed opinion, with only I much enjoyed the moving maiden speech of the the bravest of defendants risking their livelihoods to noble Baroness, Lady Hayter of Kentish Town, and I fight for justice and right. very much look forward to hearing the maiden speech of the noble Lord, Lord Willis of Knaresborough. It is noteworthy and laudable that much of the recent push for libel law reform has come not just from writers, media editors and lawyers. Ben Goldacre, Simon Singh, Peter Wilmshurst and Henrik Thomsen 11.46 am are clinicians and scientists, and it is the medical and Lord Willis of Knaresborough: My Lords, it is with scientific world that has recognised that there is no a sense of pride and a little humility that I rise to greater public interest in free expression than the speak in your Lordships’ House for the first time. I ability, in good faith, robustly to criticise medical must confess to a little trepidation at having to follow claims whether they be from homeopaths or big the noble Lord, Lord Pannick. I hope that it will not pharmaceutical companies. be necessary, but if it is, I hope that he will defend me This Bill, as my noble friend has said, is largely a on some future occasion. consolidation effort. It attempts to clarify and bring To be able to contribute to this Second Reading up to date what my noble friend’s explanatory notes debate on the Defamation Bill, which was introduced describe as, so expertly by my noble friend Lord Lester, is a huge privilege, although when he invited me to speak, I little “a history of piecemeal and incomplete reform ... over the course of seventy years”. thought that the cast he would assemble would read like a Who’s Who of legal nobility. As such, it deserves the support of this House. I have no noble pedigree to bring to the House, Indeed all three major political parties at the recent although I follow in the steps of the first Baron general election backed the Libel Reform Campaign Knaresborough, Sir Henry Meysey Meysey-Thompson, led so ably by Dr Evan Harris and by Sense about who was also a Liberal MP for the town. However, Science, an organisation founded by my noble friend having opposed Gladstone’s Home Rule Bill and joined Lord Taverne and run by the resourceful and energetic the breakaway Liberal Unionist Party to form an Tracey Brown. All concerned welcomed the coalition alliance with the Conservative Party, he lost his seat. Government’s announcement in the Queen’s Speech Indeed, Knaresborough has a tradition of being associated for, with some rather awkward politicians. The early Lords “Legislation ... to restore freedoms and civil liberties”. of Knaresborough include Hugh de Morville who, This Bill is the first test of that commitment. having been granted the Honour of Knaresborough in 1158, went on to plot the murder of Archbishop However, without wishing to be contentious, I hope Thomas Becket before fleeing back to Knaresborough that my noble friend would agree that the Bill is for safety. I notice that there are no Bishops on their capable of improvement as it goes through this House, Benches today. It was not surprising therefore that and I should like to suggest a couple of areas. The King John, who loved hunting in the forest of appalling abuse of our libel law by NMT Medical Knaresborough, took the title Honour of Knaresborough Incorporated in the United States to silence the legitimate for himself in 1210, some five years before he signed criticism of Dr Wilmshurst over its STARF1ex the Magna Carta. device for closing holes in the heart is a clear example Walking through the Lobby yesterday, I noticed a of why more needs to be done to prevent the so-called copy of Magna Carta on the wall. It reminded me of “chilling effect”of our own laws. Nor is Peter Wilmshurst’s the 34 years I spent teaching and my first post teaching case unique. Some 10 per cent of all libel actions in the history at Middleton County Secondary Boys’ School UK over past six years have involved scientists or in Leeds. The head teacher, who was more renowned academics. The costs of defending and especially of for his discipline than his educational philosophy, losing an action can be devastating. So I ask my noble insisted that the boys must learn the lessons of Magna friend: should companies and associations even be Carta to remind them of the freedoms and rights we able to sue for libel? They cannot do so in other have won to secure their future. Today’s debate is a jurisdictions. Surely they should rely on malicious timely reminder of that duty and why the Defamation falsehood only? Bill is of such profound importance. Finally, there is growing evidence that scientists Clause 29 of Magna Carta states: are finding difficulty having articles which have been “We will sell to no man, we will not deny or defer to any man subjected to assiduous peer review published in serious either Justice or Right”. journals. Fiona Godlee, the current editor of the 449 Defamation Bill [HL][LORDS] Defamation Bill [HL] 450

[LORD WILLIS OF KNARESBOROUGH] I should first declare an interest, although many of British Medical Journal, has made the point that she is the lawyers do not seem to have done so. I am a frequently in receipt of letters from lawyers for partner in the national commercial law firm Beechcroft pharmaceutical companies threatening legal action if LLP, and I have a few other interests that I may criticism of a treatment or a trial is not toned down. A mention in the course of what I hope will be a short journal cannot risk its viability on a lengthy trial speech. But I want particularly to say how much I against a complainant with deep pockets, and so the welcome the opportunity to praise my noble friend article must be altered or rejected. So we have more Lord Lester of Herne Hill. He and I fought shoulder chilling of scientific debate. Yet we do not know how to shoulder—successfully—on the Racial and Religious many drug scandals are out there, such as the suppression Hatred Bill, and I am therefore particularly pleased to of research data by Merck on the anti-inflammatory be able to refer to him as my noble friend for the first drug Vioxx. time in this new era of Liberal-Conservative Government. What we do know is that we can better protect This is in many ways a classic, radical, reforming public interest if properly peer reviewed academic and Liberal-Conservative Bill, and I hope sincerely that it scientific work was considered to be qualified privilege will win support right across the House. But my noble and thus intimidatory actions could be struck out at friend would be the first to admit—and, of course, on an early stage. I appreciate that a journal could rely on Second Reading we are talking about the general the statutory defence set out in Clause 1, that it had principles enshrined in the Bill—that while the Bill acted responsibly, but a defendant would still have to may go in the right direction, it is not necessarily prove that in court, with all the financial risks involved perfect. Many people, notably those who have campaigned in taking a case to a final hearing where that question long and hard for free expression and libel reform, feel is determined. Being able to rely on an a priori defence that as matters currently stand, the glass as represented of qualified privilege would short-circuit the process, by this Bill is not quite half full. I pay tribute to those as well as having the huge benefit of incentivising campaigners, notably English PEN and the Index on journals to use the highest possible quality peer review, Censorship for the contributions they have already and making it clear to writers that only by choosing made to us in preparing for this debate. peer reviewed publications would they gain protection as well as credence for their work. Throughout my time in this and the other place, now for 34 years altogether, libel reform has constantly In ending, may I say how grateful I and indeed my been talked about, but has never really been properly family have been for the courtesy and kindness extended delivered. In fairness, as several speakers have already to me during my induction and introduction to the pointed out, it is no simple matter. We have to balance House, and I thank in particular the staff for their our right to defend ourselves against being traduced patience and support. I thank also your Lordships for by unfair and untruthful attacks with our strong your patience during this, my first humble contribution presumption against any law that has a chilling effect to your proceedings. I trust that the Government will on free expression—although in view of the earlier heed the wise advice of my noble friend Lord Lester comment of the noble and learned Lord, Lord Hoffmann, and make this Bill part of a process to renew our perhaps I should say one that unnecessarily has a defamation law. chilling effect on free expression. This conundrum is recognised in the European Convention on Human 11.55 am Rights, imported into domestic law by means of the Lord Hunt of Wirral: My Lords, I have much pleasure Human Rights Act 1998, which attempts to achieve in congratulating my noble friend Lord Willis of balance and internal harmony. Article 10 makes clear Knaresborough on an outstandingly good maiden that, speech. We all found his historical analysis of “everyone has the right to freedom of expression”, Knaresborough fascinating. But most important is that he has put forward a number of compelling while acknowledging that rights and responsibilities arguments about the importance of the medical and must be carefully weighed against each other. This scientific community. I pay tribute to what he has right to freedom of expression is therefore qualified by already referred to as his career in teaching. Perhaps, the need for the law to ensure, as I understand it, his most rewarding period was “the protection of the reputation or rights of others”. spent at Primrose Hill High School in Leeds, where for seven years he was involved in multicultural education Article 8 also sets out the right of the citizen to respect and outreach youth work. His subsequent leadership for private and family life. role in pressing for inclusive education was important, As the noble Lord has pointed out, the programme together with his support for the “family of schools” of the Liberal-Conservative Government sets out a initiative. So many tributes could be paid to him, so we clear direction of travel, asserting that the Government, all greatly appreciate the fact that he is now in this Chamber and we look forward to hearing many “will review libel laws to protect freedom of speech”. contributions from him in future debates. Today, however, Other noble Lords have already reminded the House we honour particularly his leadership of the science of a number of recent cases that have intensified the community, which followed his election as the Liberal need for change in the law. There is no time—and it Democrat leader of Harrogate Borough Council, and would be inappropriate—in a Second Reading debate his praiseworthy economic generating initiatives. My to go into detail about content. Suffice it to say that I noble friend has outlined some important suggestions welcome the proposals to introduce a public interest for the ways in which the Bill could be improved. defence and to clarify the law on so-called fair comment. 451 Defamation Bill [HL][9 JULY 2010] Defamation Bill [HL] 452

I fervently welcome any measures that might serve a company, a corporate body, which cannot rely on the to encourage the rapid settlement of disputes without word “reputation” but must prove financial loss if it is recourse to costly—sometimes prohibitively costly— to succeed in a libel action. litigation. The one dog that has not quite barked in my Although what I have said so far is uncontroversial, noble friend’s Bill is the idea of introducing and a strong feeling, which I share, has emerged from the encouraging pre-legal triage in cases of alleged libel. I debate that the present law as applied by the courts—and, am proud of being a fully accredited CEDR mediator just as serious, the perceived application of the law if and I believe strongly in alternative dispute resolution, there may in due course be a court case—has shifted or ADR. We use mediation in family law, arbitration too far against free speech. Like many other noble in industrial disputes and tribunals in employment Lords, I appreciated, the excellent speech of my noble cases; why on earth can we not apply similar principles friend Lady Hayter of Kentish Town. She gave the in libel cases? example of Which?, the consumers’ association, being inhibited. Although it stood up bravely for what it Lord Woolf: We do. believed was correct, none the less it had to put up with a great deal of angst over a period because of Lord Hunt of Wirral: I would like to see it more threats of libel action. extensively applied. Some are well known for their overall attitude towards the need for mediation, but I The issue of threats is serious in regard to the would like to see an early neutral evaluation of the chilling effect of the law on everyday expressions, merits of a case, ideally producing a non-binding views and comments of no great significance. However, recommendation. This would help to address the huge the wider public interest in the Bill demonstrates that gulf that has grown up between the likely costs of a the existing law seriously inhibits discussion and debate libel action and the ability to pay for the overwhelming on scientific, medical and other matters which are of majority of citizens. interest not only to the parties involved but to us all. It surely is of major public interest and concern if debate In another outstandingly good maiden speech, the about the merits of some new medical advance is importance that the noble Baroness, Lady Hayter of prevented because it involves questioning or criticism Kentish Town, applied to access to justice lies at the of the medical claims of a particular pharmaceutical heart of this debate. I declare an interest as one of the company. original assessors to Lord Justice Jackson’s review on costs. Ministers are now looking seriously at the I believe—this is meant to be, in part, an answer to conclusions of that excellent review of costs and I the noble and learned Lord, Lord Hoffmann—that hope that libel reform will dovetail neatly with all the free discussion is not only a matter of self-indulgence other reforms aimed at bringing costs under control. of the critic or a sop to the media, but is vital in order In particular, Ministers will have to come to a view to keep under public review assertions and claims on the question of success fees after the previous made about all kinds of products and services. I botched and unilateral attempt to cap them, supposedly commend the noble Lord, Lord Willis of Knaresborough, as an interim measure. My noble friend the Minister for giving examples of that kind in his maiden speech. of State has already indicated, in response to a Question I am pleased to support the thrust of the Bill from my noble friend Lord Lester on 21 June, that he because its initial, principal clauses provide key defences is fully aware of the crucial link. The state of the to actions for defamation. There is no doubt that the public finances has forced us all to concentrate on higher courts themselves have in recent years endeavoured where economies can and must be made. However, in to reform the law. The noble Lord, in his extensive this instance, fiscal necessity and much needed principled note on the Bill, made that clear. Especially noteworthy reform coincide perfectly. was the House of Lords Reynolds case in 2000-01 I hope the House today will put its weight clearly, allowing responsible publication on matters of public firmly and decisively behind the principles of libel interest even if it included inaccurate and incorrect reform. Starting from first principles, our assumption information. The noble and learned Lord, Lord Nicholls must always be in favour of freedom of expression, of Birkenhead, listed 10 non-exhaustive matters to be and libel laws should not be an exclusive playground taken into account in determining whether the defence for the rich and powerful. However, let us not legislate is applicable. Unfortunately, various lower courts in haste and repent at leisure. Experience tells us that subsequently interpreted those guidelines more as hurdles, libel law is not easy to reform, so let us resolve to build each of which had to be overcome in order for the legislation that will last. defence to succeed. Some years later in the Jameel case, the House of 12.05 pm Lords—which I believe on that occasion, included the Lord Borrie: My Lords, we are now about half way noble and learned Lord, Lord Hoffmann—sought to through the debate and the one thing that seems strengthen the new defence. Unfortunately, although uncontroversial among Members of your Lordships’ perfectly proper in accordance with precedent and House is that the purpose of defamation law is to convention, those decisions were by a 3:2 majority, at strike a fair and reasonable balance between free expression least in part, and the common practice or convention and free speech on the one hand, and the reputation of of each Law Lord giving a separate judgment meant individuals on the other. Indeed, although the noble that the law, even as enunciated by the majority, is left and learned Lord, Lord Hoffmann, did not agree with in a somewhat uncertain state, as the noble Lord, Lord a great deal of the Bill, he agreed with Clause 11. This Pannick, explained so well a short while ago. I note for clause makes a distinction between an individual and the sake of the record that our new Supreme Court the 453 Defamation Bill [HL][LORDS] Defamation Bill [HL] 454

[LORD BORRIE] will also speak specifically about the effect of our libel other side of the square follows the same convention laws on our journalists, writers and broadcasters, and as did the House of Lords Law Lords sitting in their the need for this Bill to address the unacceptable state judicial capacity. The remedy seems to be—this is the of affairs that presently exists. main thrust of my argument—statutory provision. It The Bill is welcomed not just by myself but a long must be carefully drafted and may be improved, despite list of stakeholders, as mentioned earlier by the noble the excellent assistance in drafting that the noble Baroness, Lady McIntosh. Organisations such as the Lord, Lord Lester, has had from Lord Justice Neill. BBC, Index on Censorship, Channel 4, English PEN— The highest courts in the land can of course clarify indeed anyone who is passionate about the need to and advance the common law to the benefit of the place more protection on the right to freedom of whole community. But majority decisions and separate speech—must support the aims of this Bill. judgments are often antipathetic to clarity of decision- The journalist Nick Cohen, who took such an making for the future. The attempts of the higher active part in the Simon Singh case, said: courts to advance the law in this field only emphasise “It is intolerable for lawyers to start policing science”. the urgent need for statutory provision, at least along It is equally intolerable for lawyers’ threats to stifle the the lines of the Bill, to remove the more serious ability of investigative journalists to ply their trade. Faced deterrent effects of the present law on desirable debate with the threat of libel action, which could result in and discussion. crippling costs, all too often the only choice is to I also support Clauses 14 and 15, which reverse the present a watered-down and hence weakened case, or presumption in favour of trial by jury in defamation repulsed by that idea, not to publish or broadcast cases. Emphasis has already been laid on how slow we at all. are in this country in reforming the law. It happens to Only recently, Channel 4 faced a libel case in which be 35 years since the Faulks committee under Mr Justice it was alleged by a participant in a documentary that Faulks recommended that the courts have discretion bits of it were faked. Despite the fact that he now as to whether in the interests of justice trials should be acknowledges that the programme was not faked, by jury, judge and jury or just by judge alone. The Channel 4 will not recover any of its costs, which came noble Lord, Lord Lester, is bolder, because he advocates to a staggering £1.7 million. How much better would it a reversal of the present presumption. Problems have been had that money been invested in our creative concerning the management of cases, the length of talent. proceedings, hung juries and costs all favour the view that normally speaking the presumption should therefore At least in that case, the programme saw the light of be trial by judge alone. I welcome the provision in the day.One of the reasons that Robert Maxwell—mentioned Bill that a jury trial should be held only if it is in the earlier by the noble Baroness, Lady Kennedy—got interests of justice to override those concerns. A non- away for so long with his fraudulent behaviour was his exhaustive list of circumstances that may be relevant extremely successful use of the threat of libel. I have are set out in Clause 15. personal experience of that. I remember when I worked There has been some mention but not a lot so far in on “Panorama” at the end of the 1980s, that there was this debate of the formidable report on the review of not a single weekly ideas meeting when “we must do civil litigation costs conducted by Sir Rupert, Lord Maxwell” did not come up. One investigative journalist Justice Jackson, published towards the end of 2009. had a good supply of ammunition, noble Lords will But the report had some interesting things to say not be surprised to hear, but it never got past a about the present presumption in favour of a jury trial tempted but ultimately cautious programme editor. in defamation cases. In practice, the number of judge-alone Maxwell died in 1991, but nearly 20 years on, the trials for defamation has been increasing, whereas the threat of libel sees documentary strands such as number of jury trials for defamation has remained “Panorama” being told by inhouse lawyers to remove static. Sir Rupert Jackson pointed out that the use of sections of what they had intended to broadcast or juries increased trial costs by some 20 per cent to cancel whole programmes because they are not legally 30 per cent. Judges are well able to decide the issues. clearable. Most recently—and I emphasise that I am He also makes the point that, if there is any error at a not comparing subjects—“Panorama” shelved a whole trial by judge alone, it is much easier to appeal against documentary programme about the noble Lord, Lord a judge’s reasoned judgment than against the judgment Ashcroft, due to the threat of legal action. of the jury, which is not reasoned at all. Those are Our draconian libel laws are being exploited by powerful arguments and I support the thrust of the Bill. those who come from abroad and from those who come from countries with no freedom of expression. The noble and learned Lord, Lord Hoffmann, mentioned 12.15 pm an individual who, it has been alleged in various Baroness Bonham-Carter of Yarnbury: My Lords, I publications, has given money to al-Qaeda. Using start by congratulating the noble Baroness, Lady Hayter, British libel lawyers, he has launched no fewer than on her admirable maiden speech and my old friend the 33 suits. Furthermore, Cambridge University Press noble Lord, Lord Willis, on his contribution. His wit has been obliged to pulp one of its books rather than and erudition, just demonstrated, will add so much to face a libel action in the British courts. To quote Denis this House. I will speak briefly. Indeed, as noble Lords MacShane MP: can probably hear, it is hard to speak at all. It is only “What is happening when Cambridge University Press … one because of the huge esteem in which I hold my noble of the flowers of British publishing for centuries, has to pulp a friend Lord Lester—from today I shall think of him as book because British courts will not uphold freedom of the Earl of Leicester—and his Bill that I speak at all. I expression?”.—[Official Report, Commons, 17/12/08; col. WH72.] 455 Defamation Bill [HL][9 JULY 2010] Defamation Bill [HL] 456

The Bill is not by any stretch of the imagination a has been alleged that one committed it in another city. lone voice, as we have heard, in what it is asking. There It is not unreasonable to pursue a matter on the basis are calls on all sides and from many different quarters that someone did something in one place but not in for the need for Britain’s libel laws to be radically another; it is not an unreasonable strategy, and the shaken up. Promises to do just that were in all three facts will show that. Again, it is not unreasonable, main parties’ manifestos and the coalition agreement even if one is among the most famous names in contained a pledge to implement a full programme of Ireland in terrorist or paramilitary activity, to attempt measures to roll back state intrusion and review existing to sue one of our leading newspapers for drawing libel laws to protect freedom of speech. My noble attention to that. All these things have happened in friend’s Bill is a perfect opportunity to begin such a recent years. necessary and important process, and I sincerely hope We complain that our newspapers are full of tittle-tattle, that it will not be missed. but we have the worst of both worlds now. If an editor In the spirit of the coalition, I end with a quote has a tape or a photograph, he can go ahead because it from Edmund Burke. He said: is unchallengeable even though public interest may “It is not what a lawyer tells me I may do; but what humanity, not be at stake at all in such a case. On the other hand, reason, and justice tell me I ought to do”. it is equally clear that there is a fear factor involved in genuine cases of investigative journalism, especially 12.21 pm where the world of terrorism is concerned. Lord Bew: My Lords, it is with unusual trepidation I speak as a professional historian and to some that I rise to speak in the debate of a legal nature in degree as a part-time journalist. In the past two or which so many noble Lords have contributed or will three weeks, the Bloody Sunday report of the noble contribute to. I speak as an Irish historian. I hope that and learned Lord, Lord Saville, put a number of it is a good omen that I follow on from the maiden contentious matters beyond all reasonable doubt. None speech of the noble Lord, Lord Willis of Knaresborough, the less, I left out several paragraphs of those articles whose connections with Donegal are so strong that he because there was still so much space for possible libel might be considered almost an honorary Irishman. I action, even though I was confident that what I wanted hope, too, that it is a good omen if I speak very much to say was definitely true. It simply was not worth in the same spirit as his fine maiden speech. putting the newspaper through the struggle or argument The noble Lords, Lord Thomas and Lord Borrie, or difficulties that it might subsequently face, even in a have referred to the Reynolds case this morning, and context in which so much has been clarified beyond the noble Lord, Lord Lester of Herne Hill, has made doubt. There is a great deficiency in the Oxford history it clear that that case, brought in the 1990s against the of Ireland that I completed two years ago when it Times by the then Taoiseach, Albert Reynolds, was a deals with a number of key living figures. I am well crucial moment in his own thinking on this matter. aware that by the normal standards of historical proof The noble Lord, Lord Lester, argued in that case for there are things that should have been said in that the development of a defence of responsible journalism; book that have not been said, for the same reason—that the Law Lords agreed and set out the Reynolds defence. Oxford University Press was frankly concerned and it The noble Lord is of the view that overall the results was better to avoid any difficulty. In a sense, I feel that of that development have been disappointing and he is my readers are to some degree cheated. If one is required to introduce this Bill to deal with this deep writing the Oxford history of one’s own country, one problem. should have a substantial degree of freedom—certainly In effect, the requirement to show that one has larger than that we currently have—to express the carried out an investigation beforehand leans far too truth about controversial matters. heavily against many honest participants in debate There is one point in particular as a historian that and limits unreasonably our freedom of discussion. your Lordships may not be aware of. We are moving in As far as Irish affairs are concerned, the Reynolds case a different culture with respect to release of public is but the tip of an iceberg. When a society has been records as we move from a 30-year to a 20-year rule. afflicted with terrorism, as Ireland has been over the past That is going to create problems for our libel laws, 30 or more years, the opportunity for libel cases rises because documents will come out about leading public exponentially and dramatically. Indeed, I am often figures that will contain embarrassing and controversial driven to reflect, somewhat wryly, that 100 years ago material. In the present state of our libel laws, comment my home city of Belfast was actually, on some assessments, on that will actually be inhibited. That is another the leading industrialised city in the world. In the past reason to offer support to the Bill proposed by the 10 or 20 years, I have come to the conclusion that all noble Lord, Lord Lester of Herne Hill. entrepreneurial activity has been displaced into one I do not want to be too egoistic and make too many area—activity in the libel courts. Sadly, today, Belfast claims for the entrepreneurial activity of Belfast lawyers. is no longer a leading industrial centre in the world but I have to say, sadly, as we speak on the anniversary of is certainly a leading centre of activity in libel law. 7/7, that terrorism has spread its wings and that it is no Let us not forget that those who have been genuinely longer simply an Irish matter. The entrepreneurial traduced require and deserve full compensation, but activity of lawyers is not confined to Belfast. Carter-Ruck’s in recent years we have seen what I can only describe winter newsletter of 2007 says that, as a crazed pedanticism at work in these matters. It is “during the course of the last 12 months, Carter-Ruck has not unreasonable to assume that one can sue effectively secured numerous apologies, together with damages totalling in on the grounds that on the public record one has excess of £700,000, for a number of Muslim clients falsely accused definitely committed an extremist act in one city but it of suspected involvement with terrorism”. 457 Defamation Bill [HL][LORDS] Defamation Bill [HL] 458

[LORD BEW] “The common law of defamation … is based upon the civil As in so many respects, Northern Ireland leads the and private right of every individual to the unimpaired possession way. of his or her reputation and good name. The general rule is that no one may speak falsely of his or her neighbour, and that it is in I conclude by offering general support for the Bill. the public interest that ‘the law should provide an effective means The noble Lord clearly believes that we need a new, whereby a man can vindicate his reputation against calumny’”. broad approach to defamation—I might almost say a If that is being drawn into doubt then something is new general theory of what constitutes defamation. I clearly wrong. simply want to talk narrowly about what might be done in five more specific areas. First, the widening of In this connection, like many other noble Lords, I the qualified privilege defence in the case of public have been bombarded with briefings and comments figures should be considered. Secondly, as noble Lords on aspects of the Bill that I have read with great have said, there should be a redress of libel tourism. interest and from which I have learnt a lot. I join the We should look very closely at the key issue of the noble Lord, Lord Lester, in mentioning Patrick Vollmer proof of real damage in certain cases. Thirdly, there is and his marvellously helpful and carefully researched the issue of costs. Library note, which is well up to the standard that we are lucky enough to have come to expect from that Fourthly, there is the early determination of issues organisation. of precise meaning. I shall explain what I mean by that. If I had written that someone was responsible for It is said that soldiers can think only in threes. To a bomb on the border, I would like to know, if sued, prove that that is correct, I have three reasons for whether the judge believed that I had simply meant supporting the Bill. First, I support it because it is that they were part of an organisation that collectively timely. Witness the fact that all the main political may have known about this bomb, or if he believed parties included reform of this law in their election that I meant that that person had actually placed the manifestos. I am also persuaded by the many experts bomb. Those early determinations of meaning can who regard it as an important first step in rebalancing speed things up, and certainly avoid considerable expense. the law of defamation in favour of greater freedom of Lastly, the noble Lord, Lord Carlile, made a significant expression. I note that Liberty believes that the balance point about our judiciary in his recent Creaney lecture. is now tipped too far in favour of reputation at the It is of course well known that there is much public expense of freedom of speech. I am always slightly complaint that our judiciary is too Oxbridge, too nervous when I hear the word “rebalancing” in the public school, and that there are certain ethnic and context of law, because I thought that the law consisted class communities whose ways they do not know. Our of scales that are normally left level. judiciary is unfamiliar with one community in particular, This follows several decades of campaigning by the community in Northern Ireland that the noble organisations such as Justice, boosted by the need to Lord, Lord Brooke of Sutton Mandeville, when he strike a balance between Article 8 on respect for was Secretary of State used to refer to with the memorable private and family life and Article 10 on the right to phrase “the terrorist community”. The training of our freedom of expression in the European convention for judiciary, happily, does not give much insight into the the protection of human rights. Most recently, of events in and around the highways and byways, the course, there was the consultation exercise conducted movements, motivations and strategy of that community. by the previous Secretary of State for Justice shortly The noble Lord, Lord Carlile, has suggested that before the recent election. judges should approach this issue through the Judicial I fully appreciate that whatever action the coalition Studies Board and deepen their knowledge of national Government propose might not include all the details security issues. The ways in which these issues were and content of the Bill. However, the intention surely approached in the past are, frankly, no longer operative. cannot be a million miles away. In the interests of time, Broadly, I thank the noble Lord, Lord Lester of if nothing else, might it not make sense for the Government Herne Hill, for introducing the Bill today. to adopt the Bill and use the legislative process to include or exclude according to government policy, 12.31 pm rather than waste time on duplication? Lord Ramsbotham: My Lords, I, too, congratulate Secondly, the scrutiny demanded by the current and thank the noble Lord, Lord Lester, for bringing position is necessary and appropriate. The libel lottery forward the Bill. Not least, it has given the noble is said to be out of control. At one extreme, the Baroness, Lady Hayter, and the noble Lord, Lord forecast reduction in the provision of legal aid for libel Willis, the opportunity to give their outstanding maiden means that the poor and the not so poor may be speeches, on which I congratulate them both, and libelled with impunity with no means of remedy. At which have contributed so much to this debate. the other extreme, the level of libel damages and Not being a lawyer, I am not in a position to settlements made in anticipation of them in libel trials comment in detail on the various clauses or any of the are an expensive game. Decisions on whether to take a alleged additions or omissions to which attention has case to court in the first place are conditioned by the been drawn. My contribution will be devoted to explaining level of libel damages, which remain extraordinarily why I so strongly support the Bill, conscious that high. The costs, which are said to be similarly excessive, alterations can, if necessary, be made if it goes forward are out of all proportion to the general complexity of to the normal legislative scrutiny. Like many people, I the law. am disturbed by what appears to have happened to the Thirdly, I support the Bill because I hate the law line that was expressed so clearly in the opening paragraph being brought into disrepute. I know that it is but one of the Explanatory Notes: small part of the whole, but, like many others, I 459 Defamation Bill [HL][9 JULY 2010] Defamation Bill [HL] 460 welcome the fact that the Bill draws attention to the they are overstated, as Lord Justice Eady suggested—of concern over “libel tourism”. I find the idea that libel tourism. I can also see that the web has driven foreign claimants seek to establish a UK readership or wider and repeated publication. audience, however small, in order to make a defamation Everyone must be concerned that, in the scientific claim within the jurisdiction of the English courts, community, people fear the risk of publishing data distasteful. All those who believe in freedom and questioning the efficacy of products or production equity under the law neither want nor welcome our methods. This kind of discussion should never be alleged reputation as a Mecca for aggrieved people repressed. Everyone will acknowledge the risks faced from around the world who want to sue for libel. I find by research teams and individuals when actions are nothing to feel proud about in unscrupulous and greedy taken against them by massive corporations with people being able to use the threat of a libel action in bottomless pockets. The injustice, quite apart from the English courts to stifle freedom of expression abroad. suppression of discussion central to scientific process Reflecting on this, I could not help thinking about and progress, is the hopeless mismatch in the resources how much our practice of any restriction on the media of the contending parties. There is no equality of has been altered by the development of satellite arms; it offends justice and leaves a sense of profound communications and the internet. I was reminded of unfairness. We are, in this country, a people who very the problems that we had when I was the director of much dislike unfairness. public relations for the Army during the Falklands Key cases, some of which have just been mentioned War, when we realised that all the directions of the D by the noble Baroness, Lady Bonham-Carter, have Notice Committee were meaningless if foreign had an impact on the campaign and the pressure correspondents could transmit their copy via satellite groups whose work contributed to the Bill. It has straight from the battlefield. I therefore find it at best aroused empathy in your Lordships’ House, not least strange, and possibly ridiculous, that the current law in the two exceptional maiden speeches by my noble should be determined by a ruling from 1849 in the friend Lady Hayter and the noble Lord, Lord Willis. case, to which my noble friend Lord Pannick referred, We all share a commitment to freedom of expression. of the Duke of Brunswick, before telephone—let alone Lord Deedes, chairing a JUSTICE committee, described wireless satellite—communications had been introduced. it as “our bedrock”. However, it is not our only Conscious of what my noble and learned friend bedrock, nor the only prism through which we understand Lord Hoffmann ruled—that the defence of public our civil liberties, nor the only source of inequality of interest should be available to anyone who publishes arms in cases. Remedies to what has reasonably been material of public interest in any medium—and of the called the chilling effect of our libel laws cannot be many details which may still have to be ironed out, I remedies that undermine other civil liberties and send welcome the Bill of the noble Lord, Lord Lester, as a an Arctic wind through other individual rights that most important first step along the road to rectifying a are also, in our country, a bedrock. That is in the area law that has long been in need of revision. of risks to reputation. Initially, I believed that campaign groups, NGOs and the in-house media lawyers who have been so 12.39 pm vociferous in supporting the Bill were the only voices Lord Triesman: My Lords, my wish to speak at around. I now know of significant numbers of other Second Reading and in subsequent phases of the Bill journalists, academics and claimants’ lawyers who argue arises not from any recent events—I hope that will be that the Bill, as drafted, presents problems. I think the recognised—but from a concern that I have expressed noble Lord, Lord Lester, has suggested that that may over the best part of 30 years about chronic imbalances be true and that they can be dealt with as we go between the power of the media and that of many through the process. However, none of those people private individuals when the media attack the reputations was in the advisory group that helped draft this legislation. of those individuals. It would have been chilling, if I I was moved by the most reverend Primate the can use that phrase, not to take part. It is no easy task Archbishop of York in the debate on the future of this to speak among so many eminent speakers. The noble House. He asked what should be our goals and objectives. Lord, Lord Lester, has provided us with an opportunity His answer was, to reconsider libel law and I thank him very much for “revising the law that will maintain freedom and justice for the that. I readily acknowledge that the idea of doing so nation and for every individual within it”.—[Official Report, has been growing in the policies of various libel reform 29/6/2010; col. 1674.] campaigners, academics and NGOs for some time. I Our starting point, then, should be the civil liberty welcome and associate myself particularly with the and freedom of individuals and, on that basis, to see comments of the noble Lord, Lord Hoffmann, and what becomes efficacious to look at in the civil liberties the noble Baroness, Lady Kennedy. of all the other entities in our society. Where in this I understand the motivation that lies behind these Bill I see a desire to protect the civil liberties and legislative proposals. I have also looked at the evidence freedoms of individuals as defendants confronted by provided by several campaign groups and noted that mighty corporations as claimants, I ask where the at the general election there was support for reform corresponding recognition is of the rights and difficulties from all main parties, based on the worst cases that of individuals as claimants facing overmighty have concerned those groups. So I support the case for organisations as defendants. I note that this last class the protection of citizen critics and the need for reform. of defendants in the press are the most vigorous The law is complicated, the outcomes are uncertain supporters of this Bill because they believe—I think, and costly, and I see some risks—although I think rightly—that it extends and protects their powers. 461 Defamation Bill [HL][LORDS] Defamation Bill [HL] 462

[LORD TRIESMAN] and opinion. It is entirely understandable that some The eminent lawyer and Guardian readers’ editor, publishers and editors support the Bill enthusiastically Siobhain Butterworth, correctly observed that today for that reason. the media hold the ring. They create what scrutiny there is of defamation in many cases and have the It used to be thought that the public interest meant greatest continuing interest in particular outcomes. that the revelation was justified because greater good Trusting some of the media groups—some of them came from exposing it than suppressing it—a benefit have a trenchant history of defamation—to make key which any reasonable person would recognise. It exposed judgments on defamation at best is counterintuitive fraud, crime, corruption, significant anti-social behaviour, and at worst simply empowers the most powerful and disclosure of decisions, probity and value for money. fortifies their self-interest. The noble Lord, Lord Pannick, It was about what would allow people to make significantly may be right to refer to the role and experience of the better informed decisions on matters of public importance media in respect of free speech—I agree with that or to expose wrong-doing. However, that is no longer point—but he would have assisted me if he had at what is meant by the words. They mean that someone— least dealt also with their responsibilities. Therefore, I anyone among the public—might be interested in anything ask who is speaking up for the claimants that I have that might be said. The Bill gives oxygen to this mentioned and for the broad concerns in society for approach; either it intends to do so or the changes in the legitimate defence of reputation and individual terminology and language lead in that direction. A privacy. robust definition may be difficult to draft, but it is imperative, although I fear it is absent. Every time someone says we need a new balance The Bill is perhaps rather more one-sided in its because the harm that is done, for example to scientific changes to the definition of “honest opinion”, although communities, is unacceptable—I agree with that—I I acknowledge great strengths in parts of Clauses 2 am concerned to know how much empirical evidence and 3. The difficult area is where a defendant is there is for harm of that kind, which I think is significant, released from relying only on the facts that they knew and how much evidence there is for the harm done to at the time of publication. If two sides had broadly individuals and their civil liberties, which are likely to similar resources available to them when they came to be compounded by releasing the media, through this deal with the matter in finality, this would perhaps not Bill, from most of their serious obligations when be a problem, but the idea that a defendant can dealing with people’s reputations. I do not think that employ any number of investigators who can go on evidence has been systematically collected and I am fishing trips all the way up to and including any sure that it has not been published. It is always important hearing against a claimant who may well be hazarding to work on the basis of evidence. There is a strong their home and their family’s financial future just to instinct in this House to do exactly that. However, the deal with the original case, does not strike me as fair. first six months of the year have been wholly negative Lord Justice Eady, in the judgment on Associated for claimants. I am indebted to Professor Mullis at the Newspapers, maintained a rather more reasonable University of East Anglia for the data. If there have balance of fairness. That is preferable. been shifts in balances—I feel sure that the noble Lord, Lord Borrie, would agree with this, given what Roy Greenslade, as he so often does, summed up he said—they ought to be confirmed by systematic these issues effectively when he said that the Bill can data and systematic research. That is what should protect journalists pursuing a story, even if it is untrue guide us in that case. and causes damage beyond repair. They can shrug off the consequences with what he described as indifference, The Bill redefines “responsible publication”, yet I while claimants have to accomplish what might be well fear that it fails to list the decisive factors included in beyond their resources. I am sure that a fairer balance Lord Nicholls’ judgment in the case of Reynolds: can be struck. namely, whether the claimant’s account has been included The Law Commission, chaired by a Lord Justice of and what the source of the information was. Weakening Appeal, has the impartial responsibility to look for the guarantee of an unqualified right of reply to balanced and carefully considered solutions to complex someone whose reputation is being publicly shredded areas of law, and I ask the Lord Chancellor, through seems to me almost the definition of unfairness. I the Minister, to refer the libel law proposals to the Law cannot see that you can attach the word “responsible” Commission for a full and speedy review. I hope that to it in any meaningful way. That is not a balance. in addition to the proposition of the noble Lord, Lord Moreover, the Bill extends, perhaps to a surprising Lester, for a specialist and expert committee, he will degree, the scope of the defence to cover comment, think that that is fair housekeeping in all the circumstances. effectively blurring fact and opinion. The Explanatory Notes treat this as a technicality. Although I readily I urge the House not to alter access to juries by acknowledge that I am no lawyer, I think that this flies reversing the presumption. This is an area where the in the face of the Reynolds judgment. A defendant common sense of our fellow citizens will be a clear could rely on being false but responsible. That is no asset. I ask the House to ensure that the Bill deals with mere technicality; it is the beginning of a wholesale costs, damages and the misuse of private information, right to an unstoppable defence of public interest. and does not finish its parliamentary passage by being Indeed, in my view, if the Bill were to become law in its almost exclusively about the interest of defences. Like current form, it would allow much less scope for the state of media regulation, which has been mentioned, arguing public interest and for a successful claim by it may be said that these matters are beyond the scope anyone traduced by a toxic mixture of purported fact of the Bill, but actually they are all interwoven, and 463 Defamation Bill [HL][9 JULY 2010] Defamation Bill [HL] 464 the operational consequences of the Bill and dealing knew little about libel law, so I will not speak as a piecemeal with the issue will probably leave us with a lawyer. In recent years, my main interest has been the piecemeal solution. promotion of the evidence-based approach in the In summary, I am grateful to the House for indulging public discussion of scientific issues and public policy- a non-lawyer. I have looked at the Explanatory Notes making. I declare an interest as chair the charity Sense and, with respect, I suspect that they do not really About Science, which was founded for this purpose reflect the wording of the Bill. I know that the noble and which has played a prominent part in the campaign Lord, Lord Lester, aims for a fair balance and that he to change the libel laws. I make it clear that the other wants one, but I believe that the Bill, as drafted, will prime movers were PEN and the Index on Censorship. weaken the weaker party in the bulk of defamation It was not a campaign by newspaper magnates to cases—no level playing field, no equality of arms and enable them to continue their irresponsible attacks on no proper redress. The Bill may well help one group of individuals, which are a disgrace to our society and people who should be helped, but only by weakening from which many have suffered, including the noble another. Lord, Lord Triesman. I said at the beginning that these issues have concerned I will concentrate on the effect of the law on scientific me for nearly three decades. I have seen some newspapers, and medical publishing. I will start with examples and journalists and proprietors—although by no means all then draw general conclusions. Fiona Godlee, the of them—savage people who did not deserve it and editor in chief of the British Medical Journal, is a had no equal chance of fighting their corner. The powerful witness for reform of the law. She has complained cases that tended to disturb me most in my working that the British Medical Journal has had to turn down career, as it happens, were those involving trade union important papers on legal advice. She states: people, who I would describe as being on the progressive “One of our specialist journals would have published a series side of politics but with scant financial resources. of case reports illustrating clinical signs suggestive of child abuse, They are not the rich and powerful and they are not in but had to reject it on legal advice. The information was clinically an equal contest. I know that your Lordships will all important and should have been available to clinicians in the UK”. be able to think of cases from your experience in She also cited the case of tobacco control, to which different walks of life that are by no means less important the noble Baroness, Lady D’Souza, also referred. than the kind of examples that were drawn to my attention in my working life. So, with respect, I find it Professor Holm, editor of the Journal of Medical hard to recognise that what has been said, including in Ethics, has spoken about the unrealistic demands on the opening speech, is reflected in what has come out time, manpower and finance from ensuring that articles so far in the text of this Bill. I am sure that work on it are not liable to libel actions. He states: can make a real difference, but I thought it right— “The very nature of the JME means that we deal with papers especially having had at least a brief conversation with that are critical and that take a certain position about something the noble Lord, Lord Lester—to put my arguments in or someone”. a strong way so that my view is understood. He went on to explain that they got three or four cases The House, with its goal and objective—as the a year where a laywer thought there could be a case for most reverend Primate the Archbishop of York said—to libel, then stating: protect the civil rights of individuals, should stand up “We are part-owned by a research and educational charity, the for everyone, not just for some or for those who find Institute of Medical Ethics—we can’t bankrupt them! We have to inequalities in the present law, but for others who also be careful and avoid libel action”. find inequalities in the law and have no realistic means He gave an example of a paper that he wanted to of protecting themselves. publish which alleged that the University of Toronto had suppressed research showing that a drug used to 12.54 pm treat people with excess iron in their blood and liver Lord Taverne: My Lords, I join in congratulating was not as effective as had been claimed. After protests the maiden speakers. The noble Baroness, Lady Hayter, from the university, the journal’s lawyer suggested gave a warming and very telling speech, and my noble changes in the paper that the author refused to accept, friend Lord Willis of Knaresborough made a delightful so it could not publish the paper. speech. He has an outstanding record as chairman of Another case concerned Professor Lacerda and the the House of Commons Science and Technology lie detector. Professor Lacerda, who is a professor of Committee and will be a great asset to this House. I linguistics at Stockholm University, co-authored a will also say something about my noble friend Lord review article on lie detectors that was published in the Lester. Has he done a huge amount of work on the International Journal of Speech, Language and the Law Bill, strongly supported by others, and this is only one in 2007. The article concluded that there was no example, as other speakers have pointed out, of the scientific evidence to show that a particular lie detection unique contribution that he makes through his expertise, technology actually worked. However, an Israeli energy and application. I do not know of any other manufacturer of lie detectors demanded that the article Member of this House who has done more to prevent be removed. The journal complied. The journal’s editor bad laws being passed and to see bad laws repealed. I was angry and upset that he was forced to remove a also thank the author of the House of Lords’ Library’s peer-reviewed paper from the public record, but he Explanatory Notes on the Bill, which many of us have could not put the livelihoods of the journal’s staff at found extraordinarily helpful. risk. He said: Libel law is a complex subject. In my relative youth, “The company has not put forward any counter arguments, more than 44 years ago, I was a lawyer, and even then I but has chosen to simply try to silence us”. 465 Defamation Bill [HL][LORDS] Defamation Bill [HL] 466

[LORD TAVERNE] I also regard this as a privilege because of my These are only a few of numerous examples that appreciation of the achievements of the noble Lord, can be cited, but they have profound consequences. In Lord Lester, in placing this Bill before the House. He some respects, the worst effects are the hidden ones is an outstanding parliamentary reformer of the law in that do not emerge into the public domain. The noble areas where reform needs to take place. Sometimes he Baroness, Lady Bonham-Carter, gave some important also tries to do it in the courts, but they are not quite examples of those. A huge amount of time is spent on as welcoming of it as we have been in this House libel reading and discussion with editors and lawyers today. In the courts, our primary task is not to reform about changes that might have to be made. The costs the law but to apply the law, although in the senior and time involved may be higher than a journal can courts we can, at the same time, often make an important afford. Important articles and papers may be delayed contribution to improving the law. Indeed, we have for years by the threat of legal action. Legal negotiations tried to do that in the area of defamation covered by are often given as much weight in deciding whether to the Bill. However, it is a particularly difficult task to publish as peer review. Editors do not pursue stories improve the law in that area because of the conflict that are scientifically important because they know between the two fundamental rights involved, as already that lawyers will not let them be published, while referred to by other speakers. It is therefore an area of editorials are often inhibited from commenting freely the law where opportunities have to be taken by the on contentious issues by the threat of legal action. An legislature to ensure that the balance between the article that has been shown to have been plagiarised or rights of the individual and the public interest in even fraudulent may not be withdrawn because withdrawal freedom of speech are kept properly in balance. may lead to a libel suit for damage to the author’s In my view, the noble Lord, Lord Lester, is right in reputation. To summarise, what choice does an editor his general thrust of trying to move the law modestly have when forced to choose between an article that more in favour of defendants, and the time has now may lead to a ruinous libel suit and one that is safe but come when that is needed. However, if I may say so, he less contentious? has shown his skill as a law reformer by doing it in a Finally, all the aces are in the hands of wealthy way which retains a very considerable degree of flexibility, plaintiffs. Rich organisations know that they do not so that if the circumstances of an individual case have to respond to a critical article or publication by require a different approach, enough discretion is left argument and evidence; they can sue the author or the to the court to enable it to reach a just result in that publisher and force them to withdraw and apologise. case. I therefore hope that this House will do what it Numerous authors and editors have testified that they appears to be doing—that is, almost unanimously have had no choice but apology and withdrawal. Very support the Bill and ensure that it at least receives the few have fought and won. Ben Goldacre and the Second Reading that is needed. Guardian did recently. Simon Singh’s case was another. In concluding his speech, the noble Lord, Lord What is more, in that case, the plaintiff sued him Lester, said that there was a need for a different personally rather than the newspaper. His heroic stand approach to the Bill compared with the norm, and I on principle prevailed in the end rather against the hope that that will come about in the future. The odds, as it seemed at first, thanks to an historic judgment Government of the day should see it as their responsibility by three of our leading judges. Even so, he paid a to take over the area of the law which the Bill seeks to heavy financial price. reform and ensure that the process of reform is as It cannot reasonably be contested that the law as it constructive as possible. That is particularly important stands inhibits free scientific publication and debate. because in due course the Government will have to We should not exaggerate. Fortunately, we are still come to a conclusion about the reforms that have been miles away from the kind of suppression of free criticism recommended by Lord Justice Jackson as a result of that marked the Lysenko era in the Soviet Union or his review into costs in civil proceedings. I emphasise Hitler’s announcement of the end of reason and the costs because their impact in defamation litigation Nazis’ denunciation of orthodox science as Jewish has, correctly, been emphasised again and again during science, which had a devastating effect on science in a the speeches that we have heard today. In that regard, I country that, before the Nazis, had won more Nobel take the view that the Bill makes a contribution towards prizes per head than any other nation. Generally, science the question of costs and the problems that they and free speech flourish in our democracy. However, create. However, it makes only a modest contribution the growing inhibition on some forms of free scientific and other action is needed in relation to costs because, expression generally, which has been demonstrated by in the long-term interests of litigation in the defamation the Libel Reform Campaign, is a step in the wrong field in this jurisdiction, that will be more important direction along a very dangerous road. than the reforms which are proposed. However, the reforms are in themselves desirable because they introduce 1.02 pm greater certainty. That is very important in the resolution Lord Woolf: My Lords, it has been a great privilege of disputes in any area of the law, but particularly in to listen to this debate. It is also a great privilege the definitions that have to exist in the law of defamation. sometimes to come towards the end of the speakers, The other aspect of the law that the Bill does not because what one was going to say has already been deal with is procedure, except with regard to one very said so much better by those who have preceded one. important area, which is trials taking place before a It was a particular privilege in this case because of the jury. Historically, the law of defamation has always two extraordinarily good maiden speeches that we made special rules for defamation proceedings which have heard. are out of accord with the general movement of and 467 Defamation Bill [HL][9 JULY 2010] Defamation Bill [HL] 468 developments in civil procedure. The use of juries in cases going before the courts when there is no need for civil procedure is a special recognition of the fact that that. However, if proceedings are being brought not it was thought that this area of the law dealt with a for the purpose of achieving what a party thinks are matter of such importance to the public and the his just deserts or just rights but to frustrate others individual that a jury could bring its common-sense from doing what they should be entitled to do, such as approach to litigation to bear on the outcome. That to publish articles or to make comments in the public matter was referred to by the noble Lord, Lord Triesman, domain about developments of which they disapprove, whose speech I listened to with particular interest and mediation cannot be effective. concern. Furthermore, mediation cannot be effective if the There is no doubt that the presence of a jury is a costs of the proceedings are unduly weighed in favour great safeguard to the individual who comes before of one party or the other. What has undoubtedly the court. Therefore, it is with great hesitation that happened in this area is that the costs are so high that Parliament should take action which would reduce the possible defendants feel that they cannot take the risk use of juries. The Bill takes a moderate course. It does of proceedings, because they will have such a damaging not say that there should not be a jury in the future, impact on them. They do not take the action of but it brings this area of practice into line with other publishing the article which would give rise to the areas of civil procedure by saying that there should be threat of defamation proceedings. The law has moved no presumption of the use of a jury. That will mean a considerable way in preventing that happening when that there must be a special reason for using a jury, as it should not, but it has not moved far enough. It in other areas of civil practice. We should interfere should be possible to take the steps that the Bill with that area only with great caution for the reason proposed by the noble Lord, Lord Lester, seeks to take that I have explained. It is now time to take that to make the playing field fairer for both those who action. One of the reasons why the law’s reputation wish to bring proceedings and those who wish to has been so sullied is the expense and complexity of defend them. Both should be able to do that without defamation trials. The fact that there is a jury means regarding it as an impossible task. that it is more difficult, if not impossible, to take some of the courses that are now automatic before the civil 1.20 pm courts in disposing litigation as economically and effectively as possible. The fact that there is a jury Baroness Buscombe: My Lords, I join other noble makes the outcome less predictable and it is more Lords in congratulating the noble Baroness, Lady difficult to advise those conducting the proceedings. Hayter of Kentish Town, and the noble Lord, Lord Juries go for the merits and are not so influenced by Willis of Knaresborough, on their excellent maiden the law as a judge who is trying the case alone. speeches. I must declare an interest as chairman of the Press Complaints Commission. In that capacity, I Furthermore, it is more difficult for the advisers to welcome this Bill as an important and, frankly, overdue understand precisely how the jury will deal with matters step towards reform of our libel laws. I congratulate which both sides are aware they can use to try to score the noble Lord, Lord Lester, on bringing it forward. “jury points”. The scale of the damages is not easy to I agree with much of what has been said in this ascertain, so it is more difficult to settle the case than it debate, but I disagree with some of it. In my contribution, would be if it was coming before a judge alone. All I shall focus almost entirely on one small but important those factors increase the length, and therefore the aspect of the Bill: the proposal to introduce in expense, of the jury trial in defamation proceedings. Clause 1(4)(g) a defence of responsible publication on That has such untoward consequences that I suggest matters of public interest which would include that that part of the noble Lord’s Bill should be consideration of the extent to which the defendant has warmly welcomed. complied with any relevant code of conduct, such as It is said that what is at stake is the chilling effect on the Editors’ Code of Practice. editors, publishers and others who wish to exercise the My purpose is therefore both to support the principle right of free speech, which we hold in such esteem in of applying adherence to a code of conduct as a valid this country. That is right, but why does it have such a defence and further to explain to your Lordships why chilling effect? First, because of the time that defamation the PCC, as an independent regulator that enforces proceedings can take and, secondly, because of the the Editors’ Code of Practice for the newspaper and costs of those proceedings. If the costs of the proceedings magazine industry, is well placed to work in synergy can be kept in proportion, the consequences to those with the law. Rulings of the PCC have already been who wish to bring proceedings and to those who wish recognised by the courts, and it is right that the law to defend proceedings would not be as horrendous as should recognise the validity of the PCC system. we have heard today. The real solutions to the problems in defamation litigation are those which the Bill does The Explanatory Notes attached to the Bill emphasise not touch. The issue is how to control the cost of the tortuous process for delivering reform and the litigation in this area. The way to control it is strong length of time that libel law reform has taken and, judicial management. That is critical. indeed, is taking. This contrasts sharply with the flexibility of the self-regulatory system. The PCC system The noble Lord, Lord Hunt—who has great experience allows for continuous evolution, flexibility and adaptability. as a litigation lawyer and, I was pleased to hear, as a We react speedily to fact and circumstance. In addition, qualified mediator—focused on the question of mediation. we can adapt to cultural change, influencing and I have no doubt that he is right to say that mediation reflecting in our decisions what is, and what is not, should play a greater part than it does today in avoiding acceptable in our society. 469 Defamation Bill [HL][LORDS] Defamation Bill [HL] 470

[BARONESS BUSCOMBE] value of something akin to a kitemark to show the Lawyers are often too rule-bound and the law is too standards to which they adhere by participating in the narrow when justice requires the exercise of discretion. self-regulatory system. The PCC exercises discretion in a bespoke way. Indeed, In terms of compliance, the PCC system has to be it complements a key objective of the Bill in that it the preferred route, given that we can, and we do, strives to strike a fair balance between private reputation move so much faster than the courts. We regularly and freedom of expression. Self-regulation performs a take complaints about online material and have the critical role in filling the gap left by the law and, in the offending articles removed in a matter of minutes. case of the PCC, fulfils an important objective of the This places a check on continued dissemination. With Bill, which is to ensure the speedy resolution of disputes. regard to multiple publications, the PCC’s experience Indeed, I support my noble friend Lord Hunt of will assist the law because already PCC rulings do not Wirral’s preference for alternate dispute resolution—I affect only newspaper articles but also internet versions, must declare an interest as a founder member of the archives and even Google search results. It is the case Foundation for International and Commercial Arbitration that many of the circumstances prescribed for responsible and Alternative Dispute Resolution. Much of our publication are already considered by the editors’ code, work is focused on mediation. The PCC is easily such as checking sources and notifying an individual accessible and free to complainants to use. There is the ahead of publication. The PCC also has a good track rub for lawyers. They often prefer to say that the PCC record in identifying differences between fact, conjecture is not a proper place for redress because as soon as and opinion, and establishing case law. complainants come to us, our services are free and the In making the positive case for applying compliance lawyer is not paid. with the editors’ code a defence under Clause 1, it is The PCC has authority. We demand prominence of important that I add that the PCC is not complacent apologies and levels of standards. We also work to and that it recognises a continuing challenge to reassure prevent, indeed pre-empt, harm and to encourage public confidence and trust in the media that they editors to think before possibly breaching the code. consume. Just this week an independent governance We do this through pre-publication advice, by sending review of the PCC has been published. This gives us desist notices and by engaging with editors where a the impetus further to refine and renew the structures potential claimant fears something will be printed that and processes of the PCC and ensure that we perform they believe would breach the code. For example, as effectively as possible. today, the PCC director is in Cumbria talking to those In conclusion, there is much to commend in this affected by the recent shootings and the subsequent Bill. In concurring with other noble Lords, I welcome press coverage. We were first in touch with the this important beginning of a process and, yes, in the Cumbrian police offering our services to victims and words of the noble and learned Lord, Lord Woolf, it their families even before the tragic events were over must be a constructive process to reform the law of and the gunman was still alive. The noble Lord, Lord defamation. Ramsbotham, used the word “equity”. That is what we are focused on. 1.28 pm PCC commissioners debate fully and with rigour the often difficult balance—as noble Lords have said Baroness Young of Hornsey: My Lords, the noble today, it is a difficult balance—between freedom of and learned Lord, Lord Woolf, suggested that there expression and the rights of individuals. Commissioners were advantages in coming so late in the debate. There often change their minds as a result of open debate. are advantages, but there are also some disadvantages, The system demands a degree of trust and integrity particularly in trying to find further superlatives to from all those who buy into it. It works because describe the very good maiden speeches made by the editors are held ultimately responsible. noble Baroness, Lady Hayter of Kentish Town, and the noble Lord, Lord Willis of Knaresborough. All I very much welcome the recognition in this Bill of that I can do is reiterate what other noble Lords have the high professional standards that adherence to the said and say how much I look forward to their future Editors’ Code of Practice brings. By tying self-regulation contributions. into legal standards you enhance both. It is right that It is also true that many tributes have been paid to courts should recognise the validity of the PCC system. the noble Lord, Lord Lester. I will reiterate them, but I This Bill will benefit self-regulation and the law. We hope that it will not go to his head—I am sure that it are painfully aware of how slow the law as prescribed will not. I should like to thank him for suggesting that by statute is to recognise the speed with which technology I speak today because I would not otherwise have changes our behaviour and creates potential for harm. thought that this was something to which I could It is incredible to think that the Communications make a contribution. It has been quite gratifying that Act 2003 does not even mention the internet. In 2010, a sprinkling of non-lawyers have spoken, so I do not online communications is where much of the harm in feel as intimidated as I might have done otherwise. It this area of the law is done. has also been gratifying to hear other Peers who are Statutory recognition of self regulation should involved in the arts and the creative industries speak encourage online media to sign up to the benefits of about the impact of the Bill. Recent examples have abiding by a self-regulatory system. For example, last alluded to science, but the arts have always been in the year, the PCC’s remit was extended to those news forefront of contesting and trying to push the boundaries organisations that publish only on the internet. In of the oppressive nature of some of the laws that are future it must be likely that publishers will see the still on the books. 471 Defamation Bill [HL][9 JULY 2010] Defamation Bill [HL] 472

Like other noble Lords, I have been helped in what commitment to protecting freedom of speech. It believes, I am going to say by briefings from a range of as I do, that it could go some way to ensure the organisations and individuals, many of which have continued protection of these freedoms. The introduction already been mentioned, such as Mumsnet, Which?, of a single publication rule overturned the 1849 case JUSTICE, Liberty, English PEN and the Index on of Duke of Brunswick v Harmer. I must say that I was Censorship. However, I do not think that anyone else quite pleased with myself for being able to mention a has referred to the National Campaign for the Arts. bit of case law, but it has been deconstructed far more Just to clarify, it is the UK’s only independent campaigning ably by my noble friend Lord Pannick. That case organisation that represents all the arts, providing a brought the ruling that refers to the number of voice for the arts world in all its diversity. Because of publications. Here, again, the Bill seeks to take account my own professional interest, I was particularly keen of our contemporary world where many different to hear its views, so I have drawn quite substantially forms of communication and distribution mean that on some of the comments it has made. there are often, effectively, numerous new publications over time and across boundaries. If the Bill, or something As I see it and as many other noble Lords have like it, becomes law, reports of academic conferences already said, the Bill attempts a difficult balancing act. will be protected and claimants will no longer be able On the one hand, there is the need to protect the right to rely on that age-old case to bring proceedings when to freedom of speech and on the other there is the stories are downloaded from web archives many years need to protect individuals from defamation. On one after first publication. level that sounds simple, but of course it is not, otherwise we would not be debating it today. In relation The Bill also extends absolute privilege to cover fair to this Bill, many noble Lords have mentioned the and accurate reports of proceedings in Parliament; recent case of Dr Simon Singh and the consequences anything published by or on the authority of Parliament; of his critique of chiropractors and their claims about and a fair and accurate copy of, extract from or the ability of their practitioners to alleviate some summary of anything published by or on the authority distressing illnesses. If ever a case invoked the real meaning of Parliament. Again, that is welcome. of what I understand is meant by the term “public The change from the defence of “fair comment” to interest”, this was it. I do not need to rehearse the case a defence of “honest opinion” will be welcomed by again because, as I say, it has already been referred to many people, and particularly by critics and reviewers several times. Suffice it to say that exposing highly of art, books, theatre and other art forms, as well as by questionable health claims unsupported by rigorous restaurant and food critics, who increasingly come scientific evidence is clearly in the public interest. under pressure not to make adverse criticisms of what However, this is sometimes used by press and media they have sampled for fear of being prosecuted. The outlets as a defence on other slightly more spurious four conditions required for a defence of “honest grounds. opinion” seem reasonable, although I am sure that in For that matter, it can be quite a tricky area to the future there will be many struggles over the meaning define and to make clear to the general public what of the term should it become law. was actually meant. Although the print media have The NCA is particularly concerned about the need not always been successful in these cases, there have to establish serious damage to reputation. Clause 11 been a number of high-profile instances when such a potentially makes proceedings more difficult for the defence has been habitually invoked by newspapers. I claimant when it stipulates that a body corporate must think particularly of the libel case involving the private show that the publication, life of Formula One boss Max Mosley as well as “has caused, or is likely to cause, substantial financial loss”. countless examples of the indiscretions of Premier League footballers. These instances have provoked It is noteworthy that, in contrast to the position in public interest of an altogether different kind. other jurisdictions, no exception is made for small corporations or non-trading corporations. This could The Defamation Bill attempts to drags the libel have an adverse impact on arts and third-sector laws into the digital age—again, this has been mentioned organisations, for some of which reputational damage by several other noble Lords—although there are still is considered to be a substantial risk on a par with concerns about where an organisation like Mumsnet financial loss. It could be argued that the reputation of stands as a site that hosts opinions and critiques from such bodies is being treated as nothing more than a a very wide range of people over which the organisation financial matter when in fact it is a considerable part exercises no form of editorial control. Will Mumsnet of their cultural and social capital. This could be be held responsible for the content on its site? The problematic for charitable bodies and NGOs, and I noble Baroness, Lady McIntosh, referred to this, and I would be grateful if the noble Lord, Lord Lester, do not think that the position is as clear as might be would clarify that point. thought. Indeed, Mumsnet has raised the issue because Another point that might affect smaller, non-media it does not feel that it is. I guess that this is covered by organisations is that the Bill explicitly states that the the clause that spells out the difference between a extent to which the media have complied with codes of “facilitator”and a “primary publisher”. That distinction conduct, such as that of the Press Complaints could be crucial and I would welcome some clarity on Commission, is one of the factors that the court which category Mumsnet and other similar organisations should consider for a responsible publication defence. might fall into. However, bloggers and NGOs—who are also involved In general, the National Campaign for the Arts in investigative reporting—do not have the same editorial welcomes the Bill inasmuch as it represents a continuing codes of conduct, or sometimes even any at all. This 473 Defamation Bill [HL][LORDS] Defamation Bill [HL] 474

[BARONESS YOUNG OF HORNSEY] the impetus for change has been growing and, when in has prompted a question about the intended target of government, we responded. The libel working group the Bill. In the absence of codes of conduct, further convened by my right honourable friend the previous clarity around what constitutes a responsible publication Lord Chancellor produced a report alongside other defence is advisable for the benefit of bloggers and significant reports and consultations such as Defamation NGOs. There is a need to clarify these points in order and the Internet, the consultation entitled Controlling to alleviate concerns about the practical implications costs in defamation proceedings—about which I shall of some of the changes that have been mooted, particularly say a little more later—and, earlier this year, the Select for organisations that do not fall into obvious categories Committee report from another place. All those have such as the mainstream media and so on. all strengthened the case for reform. I support some of the comments made by the noble Some much publicised and shocking cases—the Lord, Lord Triesman, and the noble Baroness, Lady Singh case here comes to mind—have also been Kennedy of The Shaws, who said that it was essential instrumental in bringing this campaign to the wider to distinguish between journalists—whether citizen public’s attention. I praise the organisations Index on journalists or otherwise—who act with integrity and Censorship, Sense About Science and English PEN honesty in their investigations, comments and criticisms, for their campaigning and influence. and those who are simply set on sensationalising and As to the contents of the Bill, it would be foolish at traumatising vulnerable ordinary citizens in order to this stage for any political party to commit itself in sell more products. In this respect, I have some sympathy detail to a precise view on each clause. That is for a with the slightly contrary position that has been adopted. later time but, I hope, not too much later. I can say Like many others, I see the Bill as a welcome step that, as a whole, the Bill strikes us as being sensible towards legislation that is much more fit for purpose and practical in establishing a better balance between than the legislation that it is intended to amend or the right to personal reputation, so well argued for in supersede. Like the NCA, I welcome the introduction this House today by my noble friend Lord Triesman, of the Bill as it stands, with some of these interventions the noble and learned Lord, Lord Hoffmann, and my and comments taken on board. It is a timely intervention noble friend Lady McIntosh among many others, and that goes a considerable way towards enabling legitimate the right to free speech; in other words, the balance and honest comment and opinion. between Articles 8 and 10. It is clear that the time has come for the scope of 1.40 pm the defence of public interest, as ruled on in Reynolds and Jameel, to be set out in statute. The changes in Lord Bach: My Lords, I shall begin what I intend, both words and meaning to the defences of “fair and what I am sure the House fervently desires, will be comment” to “honest opinion” and “justification” to a fairly short contribution with a number of “truth”seem at first sight to be reasonable and workable. congratulations. I congratulate, first, our two maiden Similarly, the Clause 9 provision on responsibility for speakers today, my noble friend Lady Hayter of Kentish publication and the Clause 10 creation of a single Town and the noble Lord, Lord Willis of Knaresborough, publication rule with discretion for the court seem who both come to this House with high reputations. useful and important proposals. We will want to look After their contributions today, we can all see why. We closely at Clause 11 dealing with actions for defamation look forward to hearing much from them in the future. brought by corporate bodies, but the Australian experience I congratulate also all those who have spoken in this and the noble Lord’s draft clause dealing with our debate, whether lawyers or non-lawyers. The fact that own law looks more than interesting. both have been importantly involved in this debate proves perhaps the point, if it needed proving, that the I listened with great care to what the noble and law of defamation affects all of us in society. Above learned Lord, Lord Woolf, had to say about Clauses 14 all, congratulations are due to the noble Lord, Lord and 15 and the issue of trial by jury in defamation Lester. While there is clearly a consensus for reform, cases. We believe that on balance it is right to reverse he has taken matters a step further and produced a the presumption very much for the reasons set out by serious and compelling legislative proposal in the form the noble and learned Lord and in paragraph 151 of of the Bill before us today. For that, he deserves much the Explanatory Notes. It is interesting and encouraging more merely than the thanks and congratulations of that that excellent organisation, Justice, agrees in principle. this House; he deserves the congratulations and thanks Of course, the interests of justice caveat is absolutely of the country. essential to that proposition. I commiserate with the noble Lord on being so near A possible addition to the Bill arises out of a yet so far from being the Earl of Leicester. What a concern referred to already on a number of occasions wonderful thing it would be to be Earl of what to in speeches today, raised by the organisation Mumsnet. some of us is God’s own city, but, distinguished as he It is concerned that the Bill as presently drafted does is, he has not quite yet reached that high point. not provide explicit cover for hosts of third-party I hope that it comes as no surprise that we on this comments. I invite the noble Lord to consider that side in favour of reform in this area of the law—it was point, not necessarily today but as the Bill progresses. specifically referred to in our recent manifesto. Therefore, There will obviously be a great deal of further it follows that we warmly welcome this Bill and its discussion and debate before the final shape of the crucial role, as we see it, as instigator of legislative reforms is agreed. I do not think that anyone can argue change—it is not the final word; the noble Lord, Lord that this is not a huge step forward. However, the Bill Lester, made that absolutely plain. It is quite clear that does not deal with—and it is not intended to deal 475 Defamation Bill [HL][9 JULY 2010] Defamation Bill [HL] 476 with—what in the modern cliché could be described to a sticky end. I am assured, however, that he did not as the elephant in the room. That is the question of and that he died peacefully, so at least my noble friend costs in defamation actions. I make no criticism of has that encouragement. that at all, as this Bill is concerned with the I acknowledge that the previous Government did a substantive law and the position on costs does not lot of groundwork in this field. We are building on need primary legislation to be changed. The briefing that. I understand the noble Lord’s desire to examine from the Libel Reform Campaign makes the point, some of the details of my noble friend’s proposal. I already referred to by my noble friend Lady McIntosh, hope that I can make some suggestions on how we can that fighting a libel case can cost 140 times the do that. European average and can routinely cost £1 million. But the maximum 100 per cent success fee allowed Before that, I express my personal delight that both under conditional fee agreements is just too high. maiden speakers today are old friends. It was a delight Alongside the high legal costs anyway, we believe that to hear them both make such excellent speeches. It was this has had a harmful effect on freedom of expression interesting to find out from the speech of the noble and think that the 100 per cent figure should be Baroness, Lady Hayter, how many of us have Fabian lowered—and should be lowered now. The reply of the pasts—almost as interesting as hearing of some of the present Government to that proposition is that we previous jousting of the legal profession. I say to the should wait, perhaps until the Government legislate noble Baroness that when I set out in politics, my on Sir Rupert Jackson’s review of civil litigation ambition was to one day be on the government Front costs, which has come up today. Sir Rupert has Bench sitting next to an athlete. I admit that I did not trenchant views on success fees generally, I think it is think it would quite work out this way. That just shows fair to say. that you never can tell. The Jackson report is a massive piece of work The noble Lord, Lord Willis, was just as good as I covering the whole civil law field. Given its length, knew he would be. He brought his amazing experience importance and complexity, it was produced in a to the House, not least on science and technology remarkably short period of time, and praise has been issues. It was also a first for me: it was the first time given to Sir Rupert for his work. However, with the that I heard a Yorkshireman say that he was modest. greatest of respect to how government works—and I That is almost a contradiction in terms. My noble have a little experience of that—I do not believe that friend Lord Shutt is at this moment outing him as a legislation will emerge for some considerable time yet. Lancastrian. Is that true? Oh my God. Now I understand I would love to be proved wrong, but I fear that I will his modesty. not be. It is not like waiting for Godot, who of course There have of course been ample and justified never came; waiting for Jackson will be rewarded tributes to my noble friend Lord Lester. So many eventually, I am sure—but not soon, and certainly not important pieces of legislation over the past 40 years—the in the near future, and it is in the near future that we Human Rights Act, the forced marriages Act, the need change to the success fee regime in this field. I Equality Act and so on—have had his fingerprints all know that the noble Lord, Lord Lester, and other over them. As a parliamentary reformer, he has a noble Lords, agree with that proposition. So I urge the Wilberforce-like tenacity in pursuing the causes that Government to bring forward the necessary secondary he espouses. With his track record, the prospects of a legislation, as we did—and, I hope, with more success—as defamation Bill reaching the statute book are high an interim though not the final solution to what is, as indeed. My noble friend rightly paid tribute to his many noble Lords have said, a major problem. colleague, Sir Brian Neill, and Heather Rogers QC, Meanwhile, the Bill will of course pass its Second who have helped him in producing this formidable Reading and will then be subject to detailed consideration piece of work. and discussion. We very much hope that that will be Today’s debate has been extremely interesting as so. We wish it well and pledge to do our part in taking part of what the noble and learned Lord, Lord Woolf, it forward. We look forward to hearing what the termed the great debate between freedom of speech Minister has to say. and the rights of the individual. Several noble Lords, including the noble Lords, Lord Goodhart and Lord 1.50 pm Pannick, and the noble Baroness, Lady Kennedy, and The Minister of State, Ministry of Justice (Lord many others, referred to this tug in the task ahead of McNally): My Lords, there were once two cows looking us. I was pleased that the noble and learned Lord, over a fence when a tanker passed by. On it was Lord Woolf, said that because of the tension between written, “Drink Co-op milk—pasteurised, sterilised, those two objectives, it was right that government and homogenised”. One cow turned to the other and said, Parliament should now take the initiative in trying to “Makes you feel plumb inadequate, doesn’t it?”. [Laughter] get this balance right. A constructive process of reform That is something of my feeling today, following this usbis what he called for and what I hope we can debate that has had such a galaxy of talent and a respond to. plethora of learned noble Lords, all with their usual The noble and learned Lord also mentioned another fluidity. I will make some effort to respond. theme that has come through—that of cost. The noble I was pleased by the approach of the noble Lord, Lord, Lord Bach, referred to it as the elephant in the Lord Bach. I, too, shared some interest in the thought room. It has to be addressed. Again, many noble of my noble friend Lord Lester as the Earl of Leicester. Lords referred to this. We are urgently assessing the I sent out for clarification because I could not remember recommendations from Lord Justice Jackson’s report. if he was one of the Virgin Queen’s friends who came We will try to come forward with proposals as quickly 477 Defamation Bill [HL][LORDS] Defamation Bill [HL] 478

[LORD MCNALLY] to flourish, and that investigative journalism and the as possible. I am not sure we will follow the suggestions valuable work of non-governmental organisations are which the previous Government tried to get through not unjustifiably hampered by actual or threatened before the election. I am not sure that that is exactly libel proceedings. the road that we will go down. However, the way that I wish to respond briefly to specific points raised in Lord Justice Jackson and the previous Government the debate. The noble Baronesses, Lady Young and approached these matters clearly identified that this is Lady McIntosh, referred to Mumsnet. Our law in this a key issue in this area and one that we have to get respect may have been developed to meet the needs of right, even if their solution to how costs should be a past age. Noble Lords have referred to the internet paid was not exactly the right one. It certainly did not and the convergence of media. When we conduct receive favour before the election but we are considering consultations over the summer we will want to talk to it urgently. internet providers to explore their concerns. Mumsnet I give the usual ministerial health warnings at the is welcome to express its concerns to us to explore how beginning of a response to a Second Reading of a they can be met in legislation. Private Member’s Bill. The Government will not oppose giving the Bill a Second Reading. Indeed, we welcome I was grateful to the noble and learned Lord, Lord its introduction. As the noble Lord, Lord Lester, has Hoffmann. It was worth the entrance fee to see the indicated, my department and I have already benefited jousting between him and the noble Lord, Lord Pannick. from discussion with the noble Lord and his team on At times, you could see going through the mind of the this matter. We will also benefit greatly from the noble and learned Lord the thought, “If ever I got you quality and diversity of noble Lords’ contributions before me, young man, I’d show you a thing or two”. today. I used to say about the distinguished crop of However, it was interesting to hear the warning about QCs on the Liberal Democrat Benches that if I had to what the American legislators are up to. I have asked pay them, I could not afford them. That is doubly true my department to request the embassy to let us have of the wealth of experience made available to us today. its thoughts on that and what implications it has for us. I am afraid I cannot agree with the noble Lord, Lord Ramsbotham, however, that the Government The noble Lord, Lord Thomas of Gresford, and should simply adopt the Bill. What I say later will, I others mentioned the super injunctions. The Master of hope, reassure him that that is not a way of avoiding the Rolls has a committee looking at their implications action—quite the opposite. My hope is that having and we await its report. Interesting comments were received his Second Reading, the noble Lord, Lord made about libel tourism. Some think that it is much Lester, will give me and my advisers time to digest exaggerated while others consider that it is a real what has been said today. We will then embark on a threat. We are aware that simply identifying cases does wide range of consultations over the summer to take not present a full picture. We are worried about the stock. When the House returns in the autumn, we will so-called “chilling” effect and are keen to give careful have made considerable progress on a draft government consideration to ideas for improvements that could be Bill, which we hope to publish early in the new year made to address libel tourism, including those put and make ready for pre-legislative scrutiny. As I say, forward in Clause 13 of this Bill. this is not a vague promise of better things to come, I was very interested in the intervention of the but a firm commitment to action on this matter. Such noble Lord, Lord Hunt. We are looking at a greater a timetable would give us a strong case for making use of mediation not just here but in other areas of time in the 2011-12 legislative programme for a substantive law. This should be developed further. It is well worth Bill. Old parliamentary hands will know that even in pursuing, and not just in this Bill. The Government that form of words, it is positively daring—certainly should pursue it in other areas. for a Minister of my rank—to suggest such a thing. I The noble and learned Lord, Lord Hoffmann, the hope the noble Lord sees that as a sensible and speedy noble Baroness, Lady Kennedy, the noble Lord, Lord way forward. Thomas of Gresford, and others referred to companies We recognise the concerns that have been raised suing for libel. As part of our review of defamation over recent months about the detrimental effects that law, the Government are considering whether the ability the current law may be having on freedom of expression, of corporations to sue should be limited in any way. particularly in relation to academic and scientific debate, We recognise the important point that NGOs have the work of non-governmental organisations and raised about the problems that they are encountering investigative journalism; and the extent to which this due to the threats of libel proceedings by large jurisdiction has become a magnet for libel claims. corporations. Clause 11 gives us substantial food for These are all matters that have been covered in this thought and will be helpful in those considerations. debate. In reviewing the law, we want to focus on ensuring that freedom of speech and academic debate The noble Lords, Lord Triesman and Lord Bew, are protected and that a fair balance is struck between said that the public-interest defence might need further freedom of expression and the protection of reputation. work. We agree. There is a case for codifying it, but we We want to ensure that the right balance is achieved so want to hear more opinions about how that can be that people who have been defamed are able to take done. action to protect their reputation where appropriate, Although there is considerable thought that but that free speech is not unjustifiably impeded. We parliamentary privilege should be covered in the Bill, believe that this will help to ensure that responsible there are also concerns that we want to examine journalism and academic and scientific debate are able further, including with my noble friend Lord Lester. 479 Defamation Bill [HL][9 JULY 2010] Defamation Bill [HL] 480

The noble Lord, Lord Triesman, asked us to refer This is a complex area of the law and we want to give the Bill to the Law Commission. I am afraid that if I further consideration to whether and how a statutory said yes, it would confirm all the worst fears of the defence can be framed in a way that is beneficial and noble Lord, Lord Ramsbotham, that we would be appropriate for a range of contexts. Clause 1 of the engaging in delay. I am an admirer of the Law noble Lord’s Bill provides a very valuable starting Commission and we will take any advice that we point for those considerations. receive from it on this issue, but given the work that We recognise also the criticism that English defamation has been done by my noble friend Lord Lester and by law has received because of the perception that libel the previous Administration, and given the amount of tourism has flourished. The approach adopted in the consultation that we want to consider over the summer, noble Lord’s Bill offers us helpful food for thought. the way ahead that I have proposed is to move as The Bill also includes provisions relating to multiple quickly as possible to a full government draft Bill publications in defamation proceedings. We recognise which can go into pre-legislative scrutiny with a possibility the concerns that have been expressed in the media of legislation in the second Session of this Parliament. and elsewhere about the difficulties that the multiple- That matches the advice that we have received from a publication rule, whereby each publication of defamatory number of causes—not to rush our fences, but not to material gives rise to a separate action subject to its embark on endless delay. I think that we have got the own limitation period, causes in relation to online right balance. material. We will consider how best to frame a single- I was very interested in the contribution of the publication rule to remove the threat of open-ended noble Baroness, Lady Buscombe. I know that her liability that currently exists. Again, the Bill provides a work has involved trying to get the Press Complaints very interesting approach. Commission into shape. I welcome that. She will know In addition to the areas that I have mentioned, the that I am not the greatest admirer of the PCC. I have noble Lord’s Bill represents an extremely valuable first often said—and I said more than 10 years ago in a step in identifying a range of issues in respect of which debate in this House—that the PCC does a good job reform will be beneficial. In particular, the Bill takes in in 98 per cent of its cases; in the 2 per cent of cases provisions on renaming and codifying the existing when the media see advantage, money and profile defences of justification and fair comment; on the overtaking the code, the code goes out of the window. basis on which an action for defamation can be brought; But by its deeds we will judge it. The noble Baroness on the ability of corporations to bring defamation has set herself a task of making self-regulation work, actions; on trial by jury—the contribution of the with public confidence, and I wish her well in that. noble and learned Lord, Lord Woolf, was very interesting When the owners of newspapers and journalists see and gave further justification for why we need further entrapment and illegal activity as demeaning of their consultation on this matter; on defamation in the profession and damaging to the long-term interests of context of internet publication; and on issues relating the media, we will all be in a good place. to absolute and qualified privilege, including parliamentary The noble Baroness also threw up the challenge of privilege. These are all important issues that merit the convergence of the media, which perhaps requires further consideration in the context of the Government’s other parts of the media, outside the realms of the review. PCC, to consider coming under its code. This is certainly an interesting area that is not central to the Bill, but Ensuring that the right balance is struck is a difficult important to it. and sensitive exercise. It raises very complex issues on which a wide range of differing views are likely to be Perhaps I may repeat that although the debate has held. We believe that it is important to ensure that the to a certain extent been a lawyer fest, as the noble views of all interested parties are taken into account Baroness, Lady Young,pointed out, it has also been of before we move further. As I have said, we therefore value that a number of either lapsed lawyers or noble intend initially to conduct informal discussions with Lords who have never been lawyers have participated all interested parties to ensure that we can reach a fully and brought an extremely important dimension to this informed assessment of the merits of reform in those task. The noble Lord, Lord Bew, pointed out the areas, and on any other issues that may be of concern. dangers to academic, not just scientific, work. The In the mean time, we wish the noble Lord’s Bill to have contributions by my noble friends Lord Taverne and a Second Reading, on the basis that we are listening to Lord Willis warned of the dangers to scientific those who are enthusiastically in support of it and to commentary and the testing of scientific views. The those who have constructive criticisms. We recognise noble Baronesses, Lady Hayter, Lady Youngand Lady the considerable expertise in this area of the noble McIntosh, pointed out that the creative industries and Lord and his advisers, and the extensive consideration the arts are influenced by this issue. that they have given to these issues, and we are keen to It is not possible for me today to indicate exactly co-operate further in taking matters forward. Following what provisions will be included in the Government’s the informal consultation with interested parties that I promised draft Bill on defamation because of the have outlined, I hope that I and my team will hold ongoing consultations to which I referred. However, a further discussions with the noble Lord, possibly number of areas have already been subject to much immediately after we return after the Recess. I hope discussion and I confirm that we will give further that on the basis of our firm intention to publish a consideration to them with a view to including provisions draft Bill in the first Session and our commitment to in the draft Bill. In particular, we recognise the strength take the matter forward on a co-operative and timely of the calls that have been made for a statutory defence basis, the noble Lord will feel able not to pursue his relating to the public interest and responsible journalism. Bill further at this time. 481 Defamation Bill [HL][LORDS] Defamation Bill [HL] 482

[LORD MCNALLY] harmonised tort law, we retained the double actionability We have had a debate of much wisdom and wise rule for defamation cases, so that a foreign claimant advice. We are not rushing to legislate, but considering could bring a libel claim in this country only if they very carefully how to proceed. The way ahead that we could show that the case was actionable under English have set out reflects the sense of urgency that has been law and not merely under Singaporean law. That was present in this debate, but also has the right balance of one way in which we dealt with that form of libel caution that has been another underlying theme. I tourism. hope that the Bill gets its Second Reading and look forward to the noble Lord’s response. The noble Lord, Lord Willis of Knaresborough, in his most memorable speech, made an important point. He asked why we had not confined companies to 2.14 pm malicious falsehood. That is an interesting idea. In a Lord Lester of Herne Hill: My Lords, the noble case that I did, the Derbyshire case, the House of Lord, Lord Campbell of Alloway, once rebuked me Lords decided that public authorities—Governments— for making a serious speech after the dinner hour and could not use the law of libel but had to proceed under I am very aware that I am about to make a short the tort of malicious falsehood, which makes me speech after the lunch hour. Let me make a few points wonder whether we have got that right in the Bill. very quickly. Perhaps the right thing to do would be to extend the On the subject of compliments and flattery—this notion of public authority to certain classes of corporation House is an admirable example—I say, with the noble and treat them in the same way. However, that is a Lord, Lord Bew, in mind, that there were two 19th-century difficult area and I am sure that we should all like to historians, Freeman and Stubbs. A wit wrote of their think about it more. reviews of each other’s work: Of course, ADR and mediation are vital. However, “Ladling butter from alternate tubs, Stubbs butters Freeman and Freeman butters Stubbs”. we have not dealt with that area in the Bill because a distinguished former libel judge, Sir Charles Gray, is Having said that, I should say that the two maiden chairing a working party on that subject, although I speakers deserve all the compliments that have been do not think that it has yet produced its report. When paid to them. it does, we very much hope that that will happen, so On the subject of my becoming the Earl of Leicester, legislation is not needed. I should add not only that there is already a noble Earl, which is why my name is Lord Lester of Herne My noble friend Lady Bonham-Carter, speaking Hill, so that people who cannot differentiate spellings with a marvellously husky voice and sacrificing her can understand, but also that I am reminded of health, mentioned a number of matters. I was reminded Sir Stephen Sedley, who, when faced with a pompous that Quilliam, a body dealing with extremist activity, colleague of mine who had made himself honorary especially among Islamic fundamentalists, told me life president of a lawyers’ body, said: “Why only that when it made criticism of the Islam Channel, it life?”. was threatened in a very coercive way with libel I pay tribute to the noble Lord, Lord Bach, to Jack proceedings—that is, Islam Channel, the broadcaster, Straw and to the former Government, who initiated was threatening action against Quilliam as a small serious reforms in this area. I was glad to hear what NGO. When journalists writing for the LSE’s Beaver the noble Lord said today. I agree with him very much magazine criticised a lecturer for allegedly spreading on the need for urgency on costs; we should not wait fundamentalist views, the threat was made that, unless for wholesale reform. they disowned Quilliam and what had been said, it I say to the noble Baroness, Lady Hayter, that I would be all the worse for them. Those are examples thought that I was chairman of the Fabian Society of, as it were, the other side of the equation. and not its treasurer. I should like that to be looked at. I want to mention two examples from my practical Let me quickly deal with a few points. I thought experience of my attempts, in the words of the noble that we had covered Mumsnet but, if we have not, and learned Lord, Lord Woolf, to persuade the courts plainly it should be regarded as a mere facilitator and to reform the law. I suspect that the first will amuse the therefore not liable. noble and learned Lord, Lord Hoffmann. When I was The speech made by the noble Baroness, Lady arguing the Reynolds case, the noble and learned Hayter, as a consumer champion was extremely important. Lord, Lord Steyn, looked at me and said, “What I agree with what was said about self-regulation and about German ad hoc balancing law?”. I asked, “What the role of the PCC. I also agree with the scepticism of about it?”. He said, “Do you know about it?”. I said the noble Lord, Lord McNally, about where we are that I did not, to which he replied, “Well, you had with the PCC. I hope that it can be strengthened. better know by tomorrow morning”. I knew then that I agree with the noble and learned Lord, Lord I had lost. He was referring to a notion in German Hoffmann, that the problem of libel tourism has been constitutional law about which his co-pupil, Basil greatly exaggerated. The real problem is not so much Markesinis, had published a book dealing with what libel tourism as our domestic libel law. He may not is known as ad hoc balancing. The trouble with know this, but we dealt with a form of libel tourism Reynolds was that it applied German constitutional when the noble and learned Lord, Lord Mackay, was law—ad hoc balancing—to English libel law. The result Lord Chancellor. We were worried about Singapore was to create great uncertainty, which the noble and bringing its libel law into this country. When we learned Lord, Lord Hoffmann, and others sought to 483 Defamation Bill [HL][9 JULY 2010] Dog Control Bill [HL] 484 address in the Jameel case. However, the continental Dog Control Bill [HL] and German approach triumphed over a more common Second Reading law approach. 2.26 pm The other example was brought to mind by what the noble Lord, Lord Bew, said regarding Northern Moved By Lord Redesdale Ireland. I was in a case called Convery v Irish News, in That the Bill be read a second time. which a food critic, Caroline Workman, was cross- examined for more than three days as to whether the Lord Redesdale: My Lords, it is quite useful to carry vegetables in the restaurant about which she had written on from the previous Bill in this Second Reading a disrespectful review were or were not as she said they debate because we are also considering changing legislation were. The judge, jury and counsel all misunderstood that is slightly flawed. I refer to the Dangerous Dogs the true nature of the defence of fair comment and Act 1991. I was looking round the Chamber trying to treated it as though it were the defence of truth. She work out how many Peers were here in 1991. I know was cross-examined for four days. The newspaper was that the Minister was. Actually, everyone speaking made to pay, I think, £25,000 in damages and £100,000 in today was, apart from the noble Lord, Lord Grantchester. legal costs but it won on the appeal, in which I This was one of the first Bills I ever saw go through the appeared. Caroline Workman was so distressed by her House as a young 23 year-old. experience as a victim of libel law that she gave up her The Bill at that time was enacted as a result of a profession of journalism altogether. very unfortunate dog attack, but it was a knee-jerk That is the other side of the coin compared with the reaction and many people say that the 1991 Dangerous description given by the noble Lord, Lord Triesman, Dogs Act is one of the worst pieces of legislation on of claimant victims who are not treated justly. I am the statute book. To put that in context, the Metropolitan grateful to the noble Lord, Lord Triesman, for his Police said that in the past three years £10 million has criticism of the Bill; one needs to hear that. However, been spent trying to kennel dogs that are seen to be pit if he is so concerned about claimants, I wonder why he bulls and prosecute their owners. does not deal with poor claimants. They are not the The legislation has not worked. The issue was to ones who go to court, and there is no legal aid for poor make everybody safer but in 2008-09 NHS costs in claimants. The problem with the conditional fee agreement A&E were £2.7 million for dog attacks. They are rising and the 100 per cent success fee is that they are not year on year. In London they have gone up 79 per cent normally for poor claimants, but for very rich ones. If and 43 per cent in the rest of the country. The attacks we ask the claimants’ lawyers for particulars on their on young people last year went up 119 per cent. If we success rate, we find that the CFA people are on the had legislation on dogs that worked I would have no side of rich claimants, and that is where the law is difficulty in not introducing this Bill. But that is not profoundly unequal. the case. I am not concerned with producing a Bill for the More importantly, the Dangerous Dogs Act created entertainment industry or the media; I am concerned half of the problem. By saying that anything that with producing a Bill that protects the ordinary, individual looks like a pit-bull terrier is a dangerous dog has citizen/critic, the small NGO, the regional newspaper, created status dogs. There has been a massive rise in those from the arts and sciences, and so on. I am very dogs that people believe are dangerous. We can see glad that the noble Baroness, Lady Young of Hornsey, them in every street in London. I am afraid I was not agreed to take part in this debate, and I am glad that here for the maiden speech of the noble Baroness, others who are not lawyers took part. This is too Lady Hayter, but I was in Kentish Town the other day, important a subject to be left even to the legal profession. and we can see these dogs there and in all parts of The noble Lord, Lord Pannick, asked why Clause 12(2) London. There is a real issue not about the type but is necessary. I think that he is right that it is not the behaviour of dogs. The Bill deals with the deeds of necessary, but we put it in to show how conspicuously the dog, not the breed of the dog. moderate we are. We may have been too moderate in We can make sure that dogs on our streets are safe. that respect. That is a social issue, because people should not feel threatened on the streets, but it is also an animal Finally, I must say that when I hear my noble friend welfare issue. Many animal welfare issues are associated Lord McNally speak as he did just now, I wonder with those people who do not look after dogs, who do whether I am alive at all or whether I am in heaven. I not treat them properly and who desocialise them. never thought to hear such a reply. His remarks are I think that the Government will like the Bill for extremely encouraging because they indicate an open- another reason. They have spoken about “One piece mindedness to reform, a willingness to get on and to of legislation in, one piece of legislation out”. The Bill listen. I am sure that it is better for the Government to is “One in and four out”. It would get rid of the have a draft Bill and a Joint Committee of both 1871 Act, the 1989 Act—that is not in the Bill at Houses to look at it; and then, hoping that we are in the moment but we will add it as an amendment—the good health, we could have an actual Bill, which I 1991 Act and the amendment to that, the 1997 Act. hope will start in this House rather than in the other People who have read the Bill who have no specialist place. This House, as we know, has very special qualities. knowledge understand the concept of what is proposed. On that basis, I ask the House to give the Bill a Second That is important, because we have so many pieces of Reading. legislation that, often, those who are enforcing them Bill read a second time. do not understand what they are supposed to do. 485 Dog Control Bill [HL][LORDS] Dog Control Bill [HL] 486

[LORD REDESDALE] There are a couple of issues that the Bill is not The purpose of the Bill is quite clear. It can be set about. We have tried to be as transparent as possible. out in three areas. The first is owner responsibility. This is not a covert way of introducing a hunting ban. That is key. Dog ownership is about owner responsibility. This is focused on dogs attacking other dogs or people. There are tens of thousands of strays on the street, but One reason we are particularly concerned about dogs you do not hear about people being attacked by strays. attacking other dogs is that that is a good indicator of Almost all the attacks—including, distressingly, the dogs that are out of control. If you are a dog owner, large number of attacks on children—are by dogs you talk to everybody else in the areas where you walk owned by people’s relatives. It is about owners’ the dog, especially in parks. You often find out that responsibility. Anyone who has owned a dog will dogs that are not under control often attack other understand that owning a dog is not just a right, it has dogs, which can be a precursor for them attacking responsibilities associated with it. people. If we can get in at that stage, it would be a good preventive measure. The second fundamental aspect of the Bill is that it is targeting behaviour. It is not breed-specific; it covers This is a difficult area. I must commend the work of any dog that can be dangerous. Quite a few laws all the groups we brought together to work on this. To around the world mirror our dangerous dogs legislation, mix my metaphors, talking about dogs legislation is a and they contain a large list of breeds. It is interesting bit like herding cats. There are certain grey areas that that in many places, many breeds are on those lists will need to be looked at. I am happy to talk to Peers that people in this country would not associate with about working dogs so that we can make sure that we dangerous dogs, but, in other countries, they look at have not left any gaping holes in the legislation and the number of dog attacks and say, “That is a dangerous that any changes made by the Bill would not be used dog”. The real issue is that any dog can be a problem if as loopholes by anyone who misuses such amendments. it is desocialised and not trained properly. The Bill This is the Bill’s second outing. I took it through focuses on ensuring that owners understand their the previous Parliament. I think that is an extremely responsibility for ensuring that dogs are well looked good process because legislation that passes the first after and trained properly. time can have many problems. We learnt a lot from taking the Bill through the first time and from talking The third aspect is that the Bill provides a better to people. It is a bit like young men failing their level of protection for the public. The purpose of the driving test the first time; I think it should almost be Bill is not to introduce yet more legislation that may obligatory because they tend to be better drivers the do something. We know that a large number of dog second time around. attacks, and the worst dog attacks, come from dogs which have a history of anti-social behaviour which There is a Defra consultation taking place at the culminates in attacking people or—the worst thing—a moment, so the fact that the Bill will not come back to child. We are trying with the Bill to start at the basic this House until after the summer will be useful because level to ensure that there is help for owners who have there were 4,000 responses. If Defra believes that the difficult dogs. The notice orders can start with very Bill reflects the view of the general public and the basic measures: ensuring that the owner keeps the dog organisations that contributed to that consultation, it on a lead or muzzled, but the Bill also covers prevention. will be very positive. One way to do that is to ensure that owners are pushed This is not groundbreaking legislation. The Control into having dog training. The dog training is not just of Dogs (Scotland) Act, introduced control notices in aimed at the dog; it is also aimed at the owner. Dog Scotland and has proved to be quite successful. You training is as much about training the owner as about can tell that an Act is reasonably successful when there training the dog. Of course, there are further measures are not masses of complaints when it is brought in and for those who break those provisions and for more people believe that it is workable legislation. serious attacks, leading to prison sentences or fines. I must now run through the clauses of the Bill and We need to start preventing dog attacks. We know outline briefly its general aims. The Bill is promoted that what we have at the moment is not working by the Dangerous Dogs Act Study Group, which because the number of dog attacks is rising. The Bill comprises the leading animal welfare and veterinary addresses the issue of private property. I know that organisations. It repeals all current legislation relating that is a very vexed area, but cases where children have to dangerous dogs—thereby removing breed-specific been mauled—I could go through them, but I do not legislation—introduces dog control notices in a legal have time and people have read the papers—often sense and strengthens previous legislation to cover dog happen on private property. It is unacceptable in today’s attacks in private as well as in public places to protect society, when a child is attacked in a house, to say, workers going about their business and families in “But it is private property. Therefore, there is no their homes. I stress “workers going about their business”. measure under the law by which we can bring a The CWU, which represents postal workers, reports prosecution”. As a former dog owner, I would find it 6,000 attacks on its members last year, which is a difficult to leave a baby or a young child alone with worrying statistic, particularly as some of the attacks almost any dog because there are risks associated with were extremely serious. that. The owner has responsibilities. He cannot walk Clause 1 defines the individual who is considered to away and say, “God! I never knew that would happen. be responsible for a dog. Clause 2(1) explains the It was a lovely dog”. Any dog can be very nice and actions that are prohibited when keeping a dog under have a bad day, especially when the child pokes it in control and extends responsibility to private property the ear with a pencil. as well as public land. It sets out that encouraging a 487 Dog Control Bill [HL][9 JULY 2010] Dog Control Bill [HL] 488 dog to be aggressive or to intimidate or attack a previous legislation regarding dangerous dogs with person or a protected animal or to behave aggressively the intention of taking the most effective elements of or to be dangerously out of control without reasonable each Act and placing them in one clear piece of cause is an offence and may result in the owner being legislation. Clause 13 deals with citations and sets out issued with a dog control notice. the definition of certain expressions used in the Bill. Clause 2(2) cites reasonable cause and is not exhaustive. I believe that this is a first step. Many people talk It includes dogs provoked by a person or other animal about going a lot further than this. However, we used for lawful purposes, or dogs protecting their believe that this is a proportionate response. We know owner or property from a person who is entering a that the present system is not working. It has been place that they are not permitted to be while committing given almost 20 years to work. It was amended once an offence. Obviously that list is not comprehensive or and still there are escalating costs. I remember the exhaustive, but we have to base this Bill on common debates. If it had worked there would not be a pit bull sense. These are common-sense defences for any dog in this country. We now know that there are far more acting in a certain way if provoked. legally owned pit bulls than there were when the Act Clause 3 explains cause for issuing a dog control was introduced. It has failed. notice. It outlines that local authority officers will Some people would say that we need dog licensing. implement the law, but that they must have some There is a problem with this. In a time of fiscal previous knowledge or experience of dogs. I should restraint, dog licensing would be an extremely expensive say that we will be introducing an amendment which measure, and I do not believe that many people would will not focus on just local authority representatives. take it forward. The Dogs Trust carried out a survey We talked about local authorities because of the cost on the dog licensing regime in force in Northern implications. Many issues will be based at a local level. Ireland and worked out that only around a third of However, we will introduce an amendment whereby dog owners actually have a dog licence. Responsible the Secretary of State will be able to specify those owners will take out a licence, but it will be ignored by parties which can issue control notices. Of course, the others. Moreover, the real issue is that under the police will be included in that. Only the police will be present legislation the dog licence could not be ring-fenced, able to carry out certain aspects, including entering so we could not pay for the licence using funds from private property, and there is a level of training that dog owners, it would have to come out of general we will need to make sure is implemented. funding. I think that the Treasury would have an issue Clause 4 outlines the requirements placed on an with that. owner of a dog if he or she is issued with a dog control This Bill is supported by the Kennel Club, the Dogs notice, the data that must be on the dog control notice Trust, Blue Cross, the British Veterinary Association, and the requirement to permanently identify, via a the Royal College of Veterinary Surgeons, Battersea microchip, the dog involved in the incident. This is one Dogs and Cats Home, the Country Land and Business of the important aspects of the Bill. At the moment, Association and many representatives from a number one of the problems is linking dogs to their owners. of local authorities throughout the country. Its purpose The microchipping of the dogs will link dogs with is simple. Under the old legislation, we put the problems to owners. responsibilities at the wrong end of the lead. This is about making sure that the responsibilities are not put Clause 5 details the appeals process which must be on the dog, but on the owner at the other end of the followed by any person wanting to contest a dog lead. If people cannot be responsible for their dogs so control notice and outlines the court procedure should that they are a danger to other animals and to people, this take place. Clause 6 makes provision to local they should not own a dog. I beg to move. authorities regarding maintenance of the dog control notice database and sharing information with other relevant bodies. Clause 7 details penalties for non- 2.45 pm compliance of a dog control notice, including criminal Lord Mancroft: My Lords, I will keep my remarks conviction, a fine, disqualification from owning or as short as possible because, like other noble Lords, I keeping a dog, or further dog control notices. like to get away to the country to walk my dogs. I Clause 8 explains the conditions by which an authorised recognise fully and agree with the purpose of my noble officer or local authority can vary or remove a dog friend’s Bill, and as I am sure are all noble Lords, I am control notice. Obviously, we will add a section about grateful to him for the care and courtesy with which he the “authorised officer” in the amendment. Clause 9 has introduced it to us. It is perfectly clear that too details the process by which a person is issued with a many people in this country are attacked by dogs. dog control notice and may apply for it to be varied or What my noble friend did not mention is that there removed. Clause 10 imposes penalties for failure to has been an incredible increase over the past year or comply with Clause 2, including a dog control order, a two in attacks on horses by dogs. Again, that is disqualification or deprivation order, a destruction unacceptable. order, a fine or a prison sentence. It also outlines the In my noble friend’s introduction to the Bill there procedures that must be followed when issuing a was an assumption, which I think is shared across the deprivation, disqualification or destruction order. House, that the 1991 Act introduced by my noble Clause 11 outlines the police, local authority and friend Lord Baker, who sadly is not in his place, no court procedures when seizing or disposing of a dog longer works. I am not absolutely certain about that. involved in an offence with the focus being on best No piece of legislation works perfectly, particularly in protecting the animal’s welfare. Clause 12 repeals all the area of criminal law. If it did, we would not have 489 Dog Control Bill [HL][LORDS] Dog Control Bill [HL] 490

[LORD MANCROFT] Unless the Bill is suitably clarified it would render had two criminal justice Bills every year for the past liable to prosecution the owners of dogs behaving in a 13 years—indeed, I am told by my noble friend on the perfectly natural way when out for a walk or when Front Bench that we have had more than that, and I used in pest control, shooting and land management. I am sure he is right. The fact is that these laws never accept that the noble Lord’s intention was not to work perfectly, and I accept that in the 1991 Act there incorporate legitimate and lawful activities in the scope was a significant problem with the incredible costs of the proposed legislation—he and I have talked involved in the kennelling of dogs. about this and so I know that is right—but at the One attack by a dog is one too many, particularly moment the Bill is too widely drawn and needs on children. But I am not entirely convinced that these amendment before ordinary dog owners, farmers, attacks have increased in number, although I am certainly gamekeepers and shooters can feel secure in using clear that the sensationalist reporting of dog attacks their dogs without fear of the risk of prosecution. has done so. I am not sure that the measure of increase It must also be remembered that private prosecutions indicates that the existing legislation has not worked. I could be brought under this legislation. Those could am also not sure that the reason it has not worked as be malicious or motivated by disapproval of an otherwise well as it should is that, as with so many other things, lawful activity. It could also lead to complaints to there has been poor enforcement. I am not wholly sure police and local authorities, representing an additional that the police and the Crown Prosecution Service burden on them and on the courts. across the country have used all the legislation they I received with great interest the brief from the could—we have the 1871 Act, the 1991 Act, and the Kennel Club and the Dangerous Dogs Act Study amendments introduced in 1997—which is a problem. Group, to which my noble friend referred. It is a Indeed, that is what the police sort of admitted when helpful and constructive letter and guides us on the the previous Government looked into this before my way in which we should consider the Bill. In its letter noble friend introduced his Bill a year or so ago and of 28 June—which I imagine other noble Lords have therefore, indeed, before he was my noble friend. That also received—it states: is my suspicion, but we shall see as time goes by. “Any new legislation should also embody the principle of I turn to the primary offence set out in the Bill. As ‘deed not breed’ and oppose breed specific legislation on the so often with these things, I am worried about the law grounds that a dog’s behaviour is influenced more by its environment, of unintended consequences. Noble Lords should look the training it receives and the responsibility of its owner, than it at Clause 2, from which I will give one or two examples. is by genetics (i.e. its breed or type)”. Imagine that, as I often am, I am out walking with my I am not absolutely certain that that is right. Environment dogs and it chases a squirrel or a bird. I can assure and training are, of course, important, but do not noble Lords that my dogs do that from time to time. discount genetics. My dogs are charming, affectionate Does that count as allowing a dog to be aggressive in a and reasonably well trained, but I would not of dream public place? I should have thought that it might do of walking them off a lead in a field of sheep because so. Imagine that I use dogs to kill rats, or to flush or any amount of training I have given them would go hunt a rabbit. Does that count as allowing a dog to be straight out of the window. I am a responsible owner aggressive in either a public or private place? It is not and I make sure that I do not do that but, however the private place I have a problem with. Would that carefully I train them, the genes will take over and they count as encouraging a dog to be aggressive or intimidating will go. with other animals? Let me give a couple of examples. However carefully Imagine that I am using dogs to flush animals for you train it, a Chihuahua will not make much of an shooting, for falconry or indeed to retrieve birds. Am I attack dog; the genes are not there and nor is the size. encouraging my dog to be aggressive in a public place On the other hand, however much you train it—and it or to intimidate other animals? It is clear that on the is easy to train in many ways—you could not get a ordinary meaning of the word “aggressive”, using a Rottweiler to flush or retrieve game because the genes terrier to kill a rat would be aggressive behaviour. will not allow it; it has been bred for different things. Similarly, to intimidate another animal is to scare it, And you will never teach a greyhound to round up and dogs are used to flush or move other animals by sheep—kill them, yes, but not round them up—because causing them to be scared and therefore to engage the genes will take over from the training. To discount their natural flight response from a perceived danger. the genetics and say that it is all about environment is Ultimately, it will be for the courts to interpret the simply not right. meaning of the words “aggressive” and “intimidate”, As to the attacks to which my noble friend referred but their ordinary meanings would suggest that they and quite rightly seeks to deal with in this Bill, when could be widely applicable in the scenarios to which I we drive around the streets of London we do not see have referred. In all those examples, I could be guilty these clearly thuggish people with huge chains, collars of an offence. and leads walking Chihuahuas; they have pit bull-type The implications for the use of dogs in connection terriers. I understand the difficulty of the breed route with shooting, agriculture and pest control are extremely down which the Bill of my noble friend Lord Baker serious. Unless an exemption is made for these lawful went, but breed is a significant factor. My noble friend activities, the use of dogs in the situations I have referred to a small dog being poked with a pencil by a mentioned would be difficult. My noble friend has small child. Many people have said to their children, said that he is prepared to look at this issue—I would “If you do that he is going to bite you”—and, if they be very happy to work with him on it—but it is a continue doing it, they usually do get bitten. It may be difficult area. a nice dog—it is usually a nasty child, but that goes 491 Dog Control Bill [HL][9 JULY 2010] Dog Control Bill [HL] 492 with the territory—but all dogs will do that. No matter hold on, I come from Staffordshire— how nice they are, some dogs will always chase cats. “leapt from the shadows and made to bite him on the bottom. However much your Lordships would like to, we cannot The dog’s owner looked on blithely, while the noble Lord hopped legislate against nature—dogs bite—and we need to be about the place like a cider-fuelled Morris dancer”. careful about how we manage this issue. What a wonderful sight that must have been. Since As a consequence, we need to be a bit wary of reading that article, I now view my noble friend in a totally abandoning the 1991 Act at this stage. Much of completely different light and I understand fully why what my noble friend proposes in his Bill is very good. he wishes to promote his Bill. He talks about going for the irresponsible owner as The last time I made a speech, I missed out page 3 opposed to the type of dog. I think that a combination and nobody noticed. I shall try not to make that error of those might be the way to go. I have not been able today. to develop that thought, because it occurred to me only on the way down from Wilmslow on a train this morning. While broadly welcoming my noble friend’s Bill, I I can see some merit in that. I am wary of throwing have a number of concerns about how, if enacted, it out legislation wholly and putting new and untried would work. I recognise that there exists a problem legislation in its place. There is a significant number of with dangerous dogs—we all know that—and especially dogs in this country which, however well trained, are status dogs, particularly, but not exclusively, in urban very large, very frightening and extremely difficult to areas. Current legislation is adequate in general to deal control. It is the people who get those kinds of dog with the problem—I agree with my noble friend Lord that that my noble friend’s Bill attempts to address. Mancroft that something must be done about preventing I have read horrible stories in the newspapers, as we those accidents and attacks. I acknowledge that the all have. It appears that those people want to go off in real difficulty is in the enforcement of the legislation, a the evening to do something and leave those dogs with view which I believe is accepted by the police. a friend or a relative, who may—God forbid—sometimes The Bill as currently drafted could well have unintended have a child in the house. When something goes wrong consequences for ordinary, responsible dog owners. in the heat of the late evening, the adult with whom For instance, Clause 13 states: the dog has been left—they may or may not be a “For the purposes of this Act, a dog shall be regarded as responsible adult but, more importantly, they may not having been involved in an attack if it has bitten, mauled or know the dog or dogs generally—cannot control it. injured a person or another protected animal”. That is when children get so horrifically injured. I What about a sheepdog, which as part of its work nips know quite a lot about dogs and have spent most of a sheep on the hock? That sheep is quite difficult to get my life with them, but I would not be able to control into a pen, but it is also a protected animal, and under those kinds of dog either. So let us not abandon the this Bill it will be judged to have been in an attack. breed-type of legislation wholly in favour of this approach. What about a Lancashire Heeler, whose method of Can we in the mean time think about whether we herding cattle is to nip its heels? Under this Bill, it will could put them together in some way? be judged to have been in an attack—and so the list My final point, because I have gone on too long, is widens. For instance, if I am walking my dog along the on prevention. Of course, we would like to prevent River Dove in Derbyshire, where I fish, my dog, these things happening. Whether we stick with the old Missed, usually impeccably behaved, chases a rabbit, legislation or go with my noble friend’s new legislation will I be guilty under this Bill of having allowed my to and, in a year or so, have a new Act on the statute be aggressive in a public or private place, as stated in book, I do not regard as prevention prosecuting the the wording of the offences in Clause 2? person after the event and taking the dog away. I should like us all to spend a little more time working I am certain that my noble friend’s intention was out how we stop irresponsible people owning difficult not to incorporate legitimate and lawful activities into dogs in the first place. The ideal would not be that we the scope of this Bill, but, as drafted, the Bill is far too punished people after an attack had taken place; it widely drawn and is in need of very substantial would be that the attack did not take place. This Bill, amendment, which your Lordships will no doubt address much as I applaud my noble friend’s efforts, does not in Committee, if this Bill receives its Second Reading. address that. Furthermore, this Bill removes all responsibility from the police and places the duty of enforcement on local authorities, while making no provision to allow either 2.57 pm the police or other bodies to enforce the law and The Earl of Shrewsbury: My Lords, I, too, congratulate providing no additional financial support for local my noble friend Lord Redesdale on bringing this Bill authorities. In these days of massive financial constraints, to the House. I should declare an interest as an owner how on earth will local authorities be able to cope with and keeper of working dogs, and I am a member of that extra financial burden? Their animal welfare and the Countryside Alliance, BASC and a number of dog warden services will already be hit hard by cutbacks, other bodies which support field sports. even before the consequences of this Bill land on On 26 June, an article appeared in the Daily Mail.It them. The police are the acknowledged experts in this referred to my noble friend Lord Redesdale and this type of enforcement, so I was delighted by what my Bill. I quote part of the article as follows: noble friend said about this in his opening remarks. “One evening this week he”— Under this Bill, too, the courts will be clogged up that is, my noble friend— when they are already under very severe pressure, “was walking home in Tufnell Park … when a Staffordshire bull and with even more financial consequences for the terrier”— public purse. 493 Dog Control Bill [HL][LORDS] Dog Control Bill [HL] 494

[THE EARL OF SHREWSBURY] The basic thrust of my noble friend’s Bill may I could go on, but it is late, it is a Friday, and I want actually allow us to make progress and produce better to get home to my wife and my dogs, absolutely in that law. My personal preference would be for a licence fee order. I finish with a quote from Bertie Wooster, when with some dedicated enforcement process behind it he recalls Stiffy Byng’s Scotch terrier, Bartholomew. involving people who were informed and trained. However, He says: I do not think that that is possible with the current “Stop me if I’ve told you this before, but once when I was up financial situation; indeed, it is outwith the scope of a at Oxford and chatting on the river bank with a girl called Private Member’s Bill. something that’s slipped my mind there was a sound of barking and a great hefty dog of the Hound of the Baskervilles type came Having got that off my chest, I want to say that my galloping at me, obviously intent on mayhem, its whole aspect noble friend’s approach on this probably has a line that of a dog that has no use for Woosters. And I was just that we can follow. Let us not pretend for one minute commending my soul to God and thinking that this was where my that any piece of legislation will stop people occasionally new flannel trousers got about thirty bobs’ worth of value bitten getting bitten by dogs. I have seen children who regarded out of them, when the girl, waiting till she saw the whites of its dogs as animated teddy bears and think that giving eyes, with extraordinary presence of mind opened a coloured Japanese umbrella in the animal’s face. Upon which, with a them a nice, big, friendly cuddle around the throat is a startled exclamation it did three back somersaults and retired into good thing. Then, when it growls at them to stop, they private life”. think they have hit the play mechanism inside it and This Bill needs such an enormous amount of that is clearly powered by a battery. Most dogs will improvement that maybe it should be retired into growl, run away or occasionally nip. If the dog does private life. something more or catches the child in the wrong way, damage will be done. We must bear in mind that 3.02 pm people should supervise both the dog and the child in Lord Addington: My Lords, legislation about dogs those situations. seems to be something of a parliamentary graveyard, We must take into account that, as has been said to be perfectly honest. We have tried it several times before, dogs chase things. I own an enthusiastic terrier and we have got it wrong on several occasions. My that knew that bunnies’ heads were detachable the noble friend’s Bill has one underlying merit; it minute it first saw one. Although she is an enthusiastic acknowledges the fact that it is an incredibly difficult member of the breed, she is not unique. We must bear field and tries to deal with what we have got wrong this in mind in legislation. before. It addresses the primary problem that was When the Minister replies, I hope that he will have raised last time. I was not quite so new to the House, some information about the Government’s approach although I believe that my noble friend had taken over to this and whether they are prepared to back any from me in the role that I always defined as “baby form of fine tuning of the current legislation in the Peer” in the days when the hereditaries were in more of foreseeable future. If they have a major complaint a majority—although this debate is a bit of a throwback about the approach in my noble friend’s Bill, I would to those days. be interested to hear it. What we currently have has We did not really take on board the fact that the not worked. owner is the main control mechanism for a dog. The The status of dogs seems to be mentioned in law to fact of the matter is that a dog is an animal that works prohibit them. I had a little exchange about fashion with dominance and in packs. We are allowed to keep history a couple of days ago in this Chamber. The them because they accept us as dominant members of fashion in what looks tough walking on four legs in their pack. Thus you have a dog that will do roughly the street beside you is equally applicable here. When I what you want it to do, if you are prepared to control was young, Rottweilers were not on the scene but and discipline it. That is why the emphasis in the Bill Dobermans and Alsatians certainly were. We should on the owner as controller of the dog is probably a be looking to move forward to something that will more sensible approach that gives greater scope for lead to the streets being slightly safer, is enforceable getting it right. I hear what my noble friend Lord and takes into account the nature of the dog. My Mancroft says—that the genetics of the dog are important. noble friend’s Bill certainly points the way to an achievable We have spent we do not know how many tens or goal. hundreds of thousands of years making dogs fit certain roles by selective breeding, but certain dogs will always be worse at certain things. Labradors may bite people 3.09 pm but they do not do as much damage as Rottweilers. Lord Grantchester: The Dangerous Dogs Act 1991 There is certainly a degree of logic in my noble has attracted notoriety as a primary example of flawed friend’s approach, but the fact is that even a comparatively legislation. It bears the hallmarks of being produced soft and small dog like a Spaniel can still do a lot of as a hurried response to a public outcry for action damage if it clamps on to you; they have incredibly following a number of dog attacks, largely by Pit powerful jaws. Bull-type dogs. Despite this, nearly 20 years later we On the points made by my noble friends, and by are still trying to find a better answer to regulate the other noble Lords who are friends, about what constitutes interaction between man and his best friend, the dog. I a dog “being aggressive”, anyone who knows anything pay tribute to the noble Lord, Lord Redesdale, for his about animals would say, “Oh, that couldn’t possibly constant championing of a better control regime over be included”. Then you think about how legal action many years. I declare my interest as a farmer in has been taken; there have been vexatious or uninformed Cheshire, albeit one without a dog, although I have cases. Greater clarification might be needed here. worked with farm dogs in the past. 495 Dog Control Bill [HL][9 JULY 2010] Dog Control Bill [HL] 496

Since the law has fallen into disrepute here, it In 2009, 69 dogs were destroyed and in the period behoves us to improve matters. The Dangerous Dogs since the death of John-Paul Massey, of 311 dogs Act has failed to ban the ownership of four extreme seized, 105 have been destroyed. At any one time types of dog. Indeed, through the index of exempted around 80 dogs will be in kennels, with many having dogs, it sends out a mixed message. Under Section 1, been kennelled for over 12 months, not only at considerable the number of convictions for ownership has risen cost but with increasing welfare fears and associated from 17 in 2004 to 115 in 2008, while the number of veterinary attention. Merseyside Police have nine specially dogs added to the exempt list has risen over the two trained dog legislation officers. In comparison, the years from 2007 to 2009 from 185 to 396. This position Metropolitan Police have seized 1,152 dogs in the has arisen as a consequence of the Dangerous Dogs 2009-10 financial year. In the four-year period 2004 to (Amendment) Act 1997, which repealed the mandatory 2008, the RSPCA reported a 12-fold increase in reports destruction orders, provided that certain necessary of dog fighting, which can range from accidental conditions are met. scraps to organised fights, with the majority of incidents Following yet further high profile dog attacks in concerning anti-social behaviour with dogs. 2006, the legislation was reviewed by Defra in 2007. The Guide Dogs for the Blind Association reports After extensive consultations with the Association of that, sadly, 61 per cent of attacks on guide dogs Chief Police Officers, the Royal Society for the Prevention occurred when the guide dog was in harness by other of Cruelty to Animals and the Dogs Trust, it was dogs overwhelmingly off the lead and in public places. concluded that the current legislation was sufficiently At present, dog-on-dog attacks usually come under robust to deal effectively with the problem. This was the Dogs Act 1871 when only civil sanctions apply. despite the cogent championing by many organisations The problem legislation has to contend with is that that the Act’s basis of targeting breeds or breed types this is not a single issue. Dogs that show aggression in was the wrong approach, and the deed of the dog—from the home, dogs that present a danger to the public and a lack of control or the irresponsible action of the other dogs in accessible places and dogs that are kept owners—was the nub of the problem. as a status symbol pose differing risk analyses and Since 2007, there has been a further explosion of demand differing solutions. While primarily an urban attacks and ownership, brought about by the trend in issue, dog control is becoming a more pressing problem gang culture to own such dogs as status dogs and use in rural areas, with a lack of appreciation by walkers them in gang-related crime, drug dealing and anti-social that their dogs can cause disease as well as distress to behaviour. In response, the Metropolitan Police set up livestock. Neospora Caninum is spread by dog mess, the Status Dogs Unit in March 2009. Defra announced increasing the chances of abortion in affected cattle, funding in July 2009 to train designated dog legislation and more crucially leading to a 95 per cent chance that officers and issued extensive guidance and best practice the disease will be vertically transmitted in-utero from notes to a wide range of audiences, including the cow to calf, rendering the breeding potential of the courts, local authority officers, housing officers and female virtually worthless. However, the legislation the police, as well as pet owners. It has been difficult to must not inadvertently affect the legitimate activities obtain information and figures to reveal the extent of working dogs on farms. and size of the problem as there are no centrally Dog control notices were introduced by the Clean collected figures on the number of dogs seized or Neighbourhoods and Environment Act 2005, and relate destroyed. The costs of law enforcement are also difficult to any dog being in a certain public place and being to obtain as police forces do not appear to have prohibited from doing certain things. Control of dogs, separate budget provision for dealing with dangerous although covered in a variety of ways, is thus at best a dogs. However, there are significant costs associated patchwork; at worst, it results in poor dog welfare and with inspecting premises, transport, veterinary fees, in extreme cases poses a real risk to public safety. kennelling, prosecution and expert witness costs, as well as extensive court time. The noble Lord, Lord Redesdale, has admirably Just recently there have been yet more tragic cases spoken to his Bill. It very logically follows the Control of dog attacks. I am indebted to Constable Kerr of of Dogs (Scotland) Act of April 2010 passed by the Merseyside Police, who put me in touch with Chief Scottish Parliament. The Bill of the noble Lord, Lord Inspector Martin Woosey to update me on the position Redesdale, will remove the focus from breeds and on Merseyside. In recent years, Merseyside Police have instead will make owners responsible for the behaviour started recording information. Seizure of dogs averages of their dogs by focusing on “deed not breed”. It also around 150 dogs a year. Since 30 November 2009, extends the coverage of the 1991 Act to any place under Section 1, “Ownership”, and Section 3, “Dogs rather than just public places. It will build in England Dangerously Out of Control”, Merseyside Police have on the new regime of dog control orders, which will received 988 calls from members of the public, and enable local authorities to impose requirements on the there have been a further 1,000 dog-related incidents dog owner where that person has failed to keep the where search warrants were obtained to enter premises. dog under proper control. Where failure occurs, dog On 30 November 2009, John-Paul Massey, a four control notices will provide a range of sanctions, year-old boy, was mauled to death at his grandmother’s including destruction of the dog and disqualification house, while she was babysitting, by a dog belonging from ownership and keeping an animal. to the boy’s uncle who lived with the boy’s grandmother. On behalf of these Benches, I largely support these Less than three years earlier, a five year-old, Ellie provisions. In drawing up his Bill, the noble Lord, Lawrenson, died in similar circumstances in St Helens. Lord Redesdale, has been very ably supported by the These are tragic circumstances. Dangerous Dogs Act Study Group, made up, I believe, 497 Dog Control Bill [HL][LORDS] Dog Control Bill [HL] 498

[LORD GRANTCHESTER] between the Bill of the noble Lord, Lord Redesdale, of organisations including the animal welfare charities which imposes fines up to level 3 on the standard scale, of which he has spoken, the British Veterinary Association, and the RSPCA draft Bill with fines at level 5. Will the the Royal College of Veterinary Surgeons and Minister explain the difference between the two levels? Wandsworth Borough Council. These are the immediately recognisable discrepancies In response to the growing concern over public which would give these Benches cause to proceed with safety issues and to improve animal welfare, Defra caution. Upon deeper analysis, there may be more went out to consultation in March 2010, which has discrepancies. only just recently closed. The DDA study group has The RSPCA has written in its briefing that it cannot largely been in unison with its submissions. However, support the Bill before your Lordships as it believes in drilling down into the detail of further measures to that it would be a retrograde step for human safety control dogs, there is a divergence of views regarding and animal welfare. It comments that the Bill does not the use of licensing, micro-chipping and guidance have a genuine preventive approach to ensure that improvements. The responses to the consultation have owners of dogs would be more responsible. The provisions also revealed a sharp divergence of views between the of the Bill are reactive—they relate to when an incident DDA study group, the RSPCA and ACPO. This was has occurred. The RSPCA believes that early intervention highlighted as well in the Control of Dogs (Scotland) is crucial in improving standards and preventing serious Act 2010. This Act, in contrast to the Bill of the noble and fatal incidents. Speaking more generally, what Lord, Lord Redesdale, and along with the RSPCA/ACPO assessment have the exponents of this Bill undertaken position does not remove the ban on the four breed in regard to its effect on magistrates’ courts? One of types included under Section 1 of the Dangerous the major concerns relates to the potential impact on Dogs Act 1991. Furthermore, the RSPCA, in conjunction welfare and costs, should all appeals and prosecutions with ACPO, has submitted to Defra a rival Bill which be taken through the courts. is seriously divergent in its provisions from the Bill For these Benches therefore, this Bill faces severe before your Lordships today. From these Benches, we challenges. It would be unwise for the law on dog would need to examine in some detail the discrepancies control to be brought into further disrepute by being between the two Bills. For this Bill today to proceed pressed into a partial solution by the hasty consideration through Committee, comprehensive analysis would brought about by this Bill. need to be undertaken to assess whether there could be a “hybridisation” or joined-up approach to the issues. Would the Minister in his reply clarify what 3.23 pm policy would guide his department, what cost analysis The Parliamentary Under-Secretary of State, would be undertaken in regard to the various submissions, Department for Environment, Food and Rural Affairs and whether and to what degree it would be necessary (Lord Henley): My Lords, I offer my congratulations or advantageous to have a common regime with the to my noble friend Lord Redesdale on introducing the devolved Administrations? Bill, on giving us an opportunity to discuss these I have identified a few crucial differences between matters, and on his detailed explanation of just what the Bill today and the RSPCA draft Bill. They are, the Bill does. I should also remind the House—as the first, the retention or not of Section 1 of the Dangerous noble Lord, Lord Grantchester, did, and as I did the Dogs Act 1991 regarding the banning of various breed other day on a Question on this matter—that there types. I have sympathy for the view that although has been a public consultation on dangerous dogs breed-specific legislation is incorrect and unjust, it which focused specifically on whether the current laws provides a preventive framework and effective approach need to be changed. That consultation was issued by against this extreme type of dog that can cause death the previous Administration on 9 March this year. It and severe injury. closed on 1 June and we have received in the order of The second fundamental difference between the 4,250 responses. The most important point I have to Bills relates to responsibility for administration of the make is that we will carefully consider those responses control regime. The noble Lord’s Bill places responsibility before deciding what action the Government need to in the hands of local authorities, whereas the RSPCA take to deal with this problem. For that reason, I will draft Bill has as an “authorised officer” either a police make it clear now that, as is traditional, although we constable or local authority officer. The noble Lord will not oppose this Bill, we will not offer it our outlined in his introduction that he would bring in an support. amendment to reconcile these two positions. In his I turn now to the specific points. The first is the reply, will the noble Lord explain whether and how question of whether we should have breed-specific wide he consulted among police authorities and local legislation and whether the 1991 and 1997 Acts should authorities on the provisions of his Bill? be repealed. We believe that it is not necessary to remove breed-specific legislation. We often hear the Thirdly, there are discrepancies regarding the cliché—it was repeated by my noble friend—that that reintroduction of a dog licence and consequential was a knee-jerk reaction that has failed to prevent databases, whether to cover all dogs, pedigree dogs people owning such dogs. However, the provision on with a breed characteristic with health issues or only pit bulls and other dogs identified as having characteristics dogs under control notices. bred for fighting is necessary. I appreciate that there The fourth difference is the extent to which are a number of very vocal critics of breed-specific microchipping will be applicable to dogs and, lastly, legislation, and I respect the sincerity of their views, there is a difference in the level of fines for breaches but I am not convinced by the assertion that Parliament 499 Dog Control Bill [HL][9 JULY 2010] Dog Control Bill [HL] 500 was wrong when it agreed to a ban on the keeping of As I said, the Act comes into force next year and pit bulls and that removing the ban would not result in will introduce a provision similar to that proposed by any additional risk to the public. my noble friend on dog control notices. We accept that such notices have the potential to be a useful tool that We are as Ministers frequently criticised in the could provide an intermediate step preventing a dog press—as were previous Ministers—for not having from becoming dangerously out of control. Likewise, tighter dog control laws, and we regularly receive they could also provide a way of monitoring those much correspondence requesting that all bull breeds, who persistently have problems controlling their dogs. for example, are added to the list of prohibited breeds. This request is frequently mirrored in the media. Questions Again, however, it is important that we review the about both extending and repealing breed-specific consultation responses on this matter. We should also legislation were raised in the consultation that I and use the opportunity to observe how these notices are the noble Lord, Lord Grantchester, referred to, and it implemented in Scotland before deciding on their would not be appropriate at this stage to offer detailed appropriateness for England and Wales. This is one of comment on what was said in the responses. However, those occasions when, if the devolved Administrations we are in routine contact with the police. I assure the move in one direction, there is no reason why we noble Lord, Lord Grantchester, that Defra consulted should move too fast; we can watch what they do and every force in England and Wales in 2007, and both see how it works. the Association of Chief Police Officers and a number The Bill would also make it a criminal offence to of individual forces have responded to the most recent allow a dog to be dangerously out of control in a consultation. The view of the police is that without private place where the dog is permitted to be. That is breed-specific legislation, and more specifically the another option that was raised in the recent consultation prohibition on pit bull terrier-type dogs, there would and which we are considering seriously. Various noble have been many more attacks. Lords rightly mentioned that point, which we will look at carefully. When the 1991 Act was debated in As my noble friend Lord Redesdale put it, any dog Parliament, attacks on private premises where a dog can attack anyone. That is absolutely right and no one was permitted to be were not deemed to be suitable to would dispute it. That is why Section 3 of the Dangerous be made a criminal offence. That was because Parliament Dogs Act applies to all dogs regardless of breed. did not want to create a situation where a home owner However, it would be irresponsible to pretend that could potentially be prosecuted should the household some dogs are not far more capable than others of dog bite a burglar. In the main, we think that biting inflicting life-changing injuries when they attack. burglars is no bad thing, but others might have different I will deal briefly with a number of problems in the views. I appreciate the fact that the Bill attempts to Bill that have been highlighted, in particular by my remedy that by proposing an exemption in the event noble friends Lord Mancroft and Lord Shrewsbury. that a dog attacks with “reasonable cause”. That My noble friend Lord Redesdale’s Bill would also “reasonable cause” is then given further definitions, make it an offence to own a dog that had attacked a one of which is, person or a protected animal. Making it an offence “if … the person attacked was in a place where the person was not to own a dog that has attacked a person or a permitted to be and was committing an offence for which the protected animal might criminalise a great deal of penalty could be a custodial sentence”. very minor incidents. My noble friend Lord Shrewsbury I appreciate that such exemptions are a sensitive matter, made the point that a very small dog nipping someone’s but we do not agree with any legislation that would fingers might have to be destroyed merely because essentially legalise any dog being dangerously out of someone brought an action as a result of that. The control and attacking somebody, albeit a burglar. Again, current law allows each case to be assessed individually, we will have to look at that. and we believe that that is correct. As I have said, all There are one or two other matters about which we dogs can bite. It is unfortunate but, even with the most have some concerns. For example, Clause 2(1)(b) appears responsible owner, it can happen. The balance of the to tackle cases where dogs are used to intimidate current law, which allows each incident to be judged people. I think that we can all agree that the use of individually, is probably correct, and I would need dogs in such a manner is reprehensible. However, there further persuasion before I could support a proposal are injunctions in the Policing and Crime Act 2009—my that would trigger a disproportionate action for every noble friend Lord Shrewsbury rightly drew the House’s minor incident. Nevertheless, it is a matter that we will attention to the rather large number of policing, crime bear in mind when we look at what has been said in and criminal justice Acts that emanated from the the responses. party opposite, which we shall try not to emulate—that The noble Lord, echoing the Scotland Act, would address that problem and can prevent gang members like to introduce dog control notices. I will make two from being in charge of an animal in a public place important points about that Act. My noble friend where it has been proven that the gang member has Lord Redesdale said that the Scotland Act had not engaged in, encouraged or assisted gang-related violence. received much opposition, but I remind him that it Likewise, we can use more mature legislation, such as does not come into force until February of next year, the well tried and tested Offences Against the Person and one might see a slightly different attitude to it Act 1861, where an animal is deliberately used as a when that happens. The other point is that the Act weapon to injure somebody. does not repeal the 1991 Act and retains breed-specific That is a fairly brief gallop through some of our legislation. Those two points should be borne in mind concerns about the Bill. I entirely understand the when anyone considers that Act. thrust of what my noble friend is trying to do and the 501 Dog Control Bill [HL][LORDS] Dog Control Bill [HL] 502

[LORD HENLEY] my genocidal activities towards grey squirrels. Squirrels purpose behind the Bill. This is a serious problem and and rats would not fall under this measure. Indeed, I assure the House that the Government continue to after the last outing of the Bill, we took a great deal of take the matter seriously. However, we do not think time ensuring that the views expressed, including those that this Bill is the right way forward. We will look at of my noble friend Lord Shrewsbury, were looked at the consultation and see whether it is necessary to so that such incidents did not fall under this Bill. repeal the current law. At the moment, I do not see the The noble Lord, Lord Mancroft, said that it was a case for that. However, we will come forward with the matter of genetics, and I totally agree. You would not appropriate proposals when we have examined the let a whippet run around in a field full of sheep but the consultation and the responses to it. For the moment, point is that it is the owner who is letting the dog off as I said, although I have no intention of opposing the the lead. Therefore, the Bill says that the owner is Second Reading of the Bill, I cannot give it the full responsible and that it would be irresponsible to let support of Her Majesty’s Government. certain dogs off the lead in a field full of sheep. That issue was raised by the noble Lord, Lord Grantchester 3.33 pm and I totally agree with him. It is about making sure that dog owners are responsible. I have been shocked Lord Redesdale: My Lords, perhaps I should start by how few dog owners in the countryside are responsible; with the Minister’s response. I have put forward a they feel that they almost have a right not to be large number of Private Member’s Bills, many of responsible for their dogs. which have failed to get through, but elements of many of them have been turned into law. The point As the noble Earl, Lord Shewsbury, pointed out, that I want to make to all noble Lords is that the Bill is there is an issue about dogs going about their duty, not being brought forward in a rush; hundreds and and that needs to be looked at. Clause 2(3) deals with hundreds of hours have been spent in consultation reasonable cause. There has to be a level of common with many experts in the area looking at the precise sense, as there has to be in implementing any legislation. questions that the noble Lord, Lord Mancroft, asked. I thank my noble friend Lord Addington for supporting Those are the real issues. We know what the problems the legislation. A large number of issues need to be are out there; many of our experts have looked at them considered. However, we know that there is a problem. and have asked what the potential solutions are. Pretending that it is not costing an enormous amount The Minister made a number of points, one of of money and that we cannot do anything is a failure. which was the question of owning a dog that attacks There will be more attacks. I was struck by the support someone without reasonable cause. However, the of the Guide Dogs for the Blind Association and the important point here is that we have to act in a concern about the increasing attacks on guide dogs by preventive way. We have to try to intervene before other dogs. The RSPCA has raised its own proposed these horrific attacks take place. legislation in the same way that I know the Minister The Minister mentioned private property, which is has raised issues with this measure. I know that the an extremely vexed issue. However, I come back to the RSPCA, which refers to licensing, would receive exactly case raised by the noble Lord, Lord Grantchester, of the same response from the Minister. I am not John-Paul Massey. My first point is that the dogs disheartened by his view that the Government will not involved in that case probably fall under Section 1 of jump to support a Private Member’s Bill. the Act, so using it as an example of an attack shows However, elements of this Bill could be taken forward. how badly the Act has failed. The second point is that After the summer and after the Minister has had the there were two instances where action could have been chance to read the results of the consultation, I hope taken but was not. I am not saying that this Bill would very much that we will be able to meet some of his have stopped the attack but it would have provided a officials to work through some of the concerns that he point of intervention. The real issue that I have with expressed about the Bill. I think that we can come to many of the reasons that have been put forward for the Committee stage to see whether the elements that opposing the Bill is that, year on year, more and more we all know need to be brought forward to help to attacks are occurring and they are costing an incredible prevent attacks on people, dogs—and children—can amount of money, as is the Act itself. be discussed. I have introduced a few Private Member’s As many noble Lords have said, the Act is failing. I Bills in my time, especially on Fridays—not to a am not saying that this Private Member’s Bill is perfect, packed audience it has to be said—and I would love and I very much understand the Minister’s point about the Minister to say, “You have got it exactly right. We looking at the Defra consultation and bringing forward will have one of those and it will go on to the statute the results. The Minister said that he was not going to book”. make any decisions until he had read the consultation. That is not how legislation works and it is certainly Obviously, that consultation paper was drafted by not how legislation should work. It is very important another Government. However, I should very much that we listen to the views of noble Lords about where like to know the results of it because I think that many there are failings and how to avoid the law of unintended of the points raised by the Bill will be central elements consequences. That was one of the major problems in the responses to that consultation. with the Dangerous Dogs Act 1991. Because people The noble Lord, Lord Mancroft, referred to the were scared of pit bulls the Bill moved through far too increase in the number of attacks, and I shall very quickly. Anyone who talked against it was seen as happily write to him with that information. He also almost dangerous and irresponsible. We know that mentioned attacks on squirrels. I am well known for that has failed and that something must be done. The 503 Dog Control Bill [HL][9 JULY 2010] Dog Control Bill [HL] 504

Minister has said that provisions will be brought forward. Bill read a second time and committed to a Committee I very much hope that many of the provisions in this of the Whole House. Bill are part of the solution of making people safer and making dogs’ welfare a priority. House adjourned at 3.42 pm.

WA 79 Written Answers[9 JULY 2010] Written Answers WA 80 Written Answers BBC Questions Friday 9 July 2010 Asked by Lord Patten To ask Her Majesty’s Government whether they Banking intend to discuss with the BBC whether the corporation Questions will make spending reductions of 25 per cent over the next four years to match reductions in central Asked by Lord Myners and local government expenditure. [HL892] To ask Her Majesty’s Government what assessment they have made of the risk to financial stability of Lord Shutt of Greetland: Under the terms of its the Basel Committee on Banking Supervision relaxing charter and agreement, the BBC is operationally proposed capital requirements to support derivatives independent of Government and there is no provision dealing by major investment banks and to defer for Government to intervene. introducing other requirements for banks to set The BBC should be prepared to defend all expenditure aside more capital against derivatives. [HL690] decisions it makes and demonstrate value for money. The chair of the BBC Trust set out his commitment The Commercial Secretary to the Treasury (Lord to financial responsibility and efficiency in a speech on Sassoon): The UK fully supports the work of the 30 June. Basel Committee on Banking Supervision to strengthen the market risk framework, and to require banks to Asked by Lord Patten hold significantly more capital against their trading To ask Her Majesty’s Government whether the book activities, including derivative dealing by major BBC can access public funds in meeting its pension investment banks. As a result of these revisions, the liabilities. [HL893] Basel Committee has estimated that market risk capital requirements will increase by three to four times for large internationally active banks. The Basel Committee Lord Shutt of Greetland: The BBC may use licence has agreed a co-ordinated start date of no later than fee revenue to meet its pension liabilities. 31 December 2011. The BBC announced its proposals for the future of Asked by Lord Myners the BBC pension scheme on 29 June. To ask Her Majesty’s Government what changes have been made to bank capital requirements since Democratic Republic of Congo September 2008 as a result of decisions made by the Questions Basel Committee on Banking Supervision; and on what date those changes were implemented.[HL811] Asked by Lord Alton of Liverpool To ask Her Majesty’s Government what discussions Lord Sassoon: The UK implements internationally they have had with the government of the Democratic agreed Basel Committee on Banking Supervision Republic of Congo about the number of alleged standards through the Capital Requirements Directive. political assassinations. [HL943] The UK implemented the Capital Requirements Directive on 1 January 2007. However, since then, no new capital requirements have been placed on banks as a The Minister of State, Foreign and Commonwealth result of decisions made by the Basel Committee on Office (Lord Howell of Guildford): We are deeply Banking Supervision. concerned by the violence against human rights defenders, However, in addition to proposals made by the parliamentarians, journalists and members of civil Basel Committee on Banking Supervision the European society in the Democratic Republic of Congo (DRC). Union has adopted the Capital Requirements Directive We follow cases of concern very closely and will II. The Capital Requirements Directive II was adopted continue to press the Government of DRC bilaterally in October 2008 and will come into force on 31 December and with our EU partners to meet their responsibility 2010. The Capital Requirements Directive II improves for protecting human rights and freedom of expression. the regulatory framework in several areas including: Most recently our ambassador to DRC raised our the large exposures regime, the definition of capital, concerns at the death of human rights defender Floribert supervisory arrangements and the treatment of Chebeya with government officials and the DRC Foreign securitisations. Minister. In response to the financial crisis the Basel Committee Asked by Lord Alton of Liverpool agreed reforms to strengthen the capital requirements for the trading book and re-securitisations. These reforms To ask Her Majesty’s Government whether they are to be implemented no later than the end of 2011. will make representations to the Government of the The Basel Committee is currently working on the Democratic Republic of Congo about the number package of reforms known as Basel III, which the G20 of journalists in prison and the treatment of political aims to have in place by the end of 2012. The Government and human rights activists by security forces. strongly support the work of the Basel Committee. [HL944] WA 81 Written Answers[LORDS] Written Answers WA 82

Lord Howell of Guildford: We are deeply concerned We also provide £11 million to a media fund jointly at the intimidation and violence faced by human rights administered with France and Sweden to support defenders including journalists, parliamentarians and professionalisation, regulation, and the economic viability civil society in the Democratic Republic of Congo of the media in DRC. Funding goes to local media (DRC). We follow cases of concern very closely and organisations and NGOs including Journalists in Danger will continue to press the Government of DRC bilaterally which campaigns for freedom of the press. and with our EU partners to meet their responsibility Asked by Lord Alton of Liverpool for protecting human rights defenders, journalists, parliamentarians and civil society. Most recently the To ask Her Majesty’s Government what discussions Minister for Africa issued a statement of concern at they have had in the United Nations Security Council the death of human rights defender Floribert Chebeya and the European Union about the political situation and our ambassador followed this up with the DRC in the Democratic Republic of Congo. [HL946] Foreign Minister. We regularly raise these issues with the Government Lord Howell of Guildford: The UK as a permanent of DRC and follow up systematically. member of the UN Security Council played a key part We are also providing practical support to ensure in negotiations on UN Security Council Resolution that human rights defenders, journalists, and civil (UNSCR) 1925, the renewal of the mandate for the society are able to carry out their work. We have UN Organisation Stabilization Mission in the Democratic appointed a liaison officer and made their contact Republic of Congo (DRC) (MONUSCO). UNSCR details available to local non-governmental organisations 1925 mandates MONUSCO to provide logistical support (NGO) and civil society. The UN peacekeeping force for the DRC elections which are scheduled to take in the Democratic Republic of Congo (MONUSCO) place in 2011. Protection Unit also provides protection services to We work closely with our EU partners in DRC on a those in danger including relocation and advice on range of issues including the political situation in personal security. DRC. Recently we co-drafted with the EU and the We also provide £11 million to a media fund jointly UN a letter to the DRC outlining necessary election administered with France and Sweden to support benchmarks which the Government of DRC need to professionalisation, regulation, and the economic viability address. of the media in DRC. Funding goes to local media We remain active in both organisations on these organisations and NGOs including Journalists in Danger issues. which campaigns for freedom of the press. Asked by Lord Alton of Liverpool Fuel Prices To ask Her Majesty’s Government what steps Questions they are taking in relation to the treatment of Asked by Lord Laird Congolese journalists and political and human rights activists. [HL945] To ask Her Majesty’s Government what will be the extra cost of a litre of petrol as a result of the Lord Howell of Guildford: We are deeply concerned proposed VAT increase; what is the current level of at the intimidation and violence faced by human rights road fuel duty per litre; and what would the current defenders including journalists, parliamentarians and average price of petrol be without taxation. [HL786] civil society in the Democratic Republic of Congo To ask Her Majesty’s Government what is the (DRC). We follow cases of concern very closely and level of (a) duty, and (b) VAT on aviation fuel. will continue to press the Government of DRC bilaterally [HL788] and with our EU partners to meet their responsibility for protecting human rights defenders, journalists, The Commercial Secretary to the Treasury (Lord parliamentarians and civil society. Most recently the Sassoon): Fuel duty rates on road fuels are currently Minister for Africa issued a statement of concern at 57.19p per litre. In mid June 2010 unleaded petrol was the death of human rights defender Floribert Chebeya on average 117.9p per litre as detailed in the Department and our ambassador followed this up with the DRC of Energy and Climate Change’s latest quarterly energy Foreign Minister. prices publication of 24 June 2010. Excluding VAT We regularly raise these issues with the Government and fuel duty, the current average price of petrol of DRC and follow up systematically. would be 43.15p per litre. VAT is levied at the standard rate on the base petrol price plus the fuel duty. We are also providing practical support to ensure that human rights defenders, journalists, and civil It is not possible to state with certainty what the society are able to carry out their work. We have extra cost of a litre of petrol will be as a result of the appointed a liaison officer and made their contact proposed VAT increase as retail road fuel prices in details available to local non-governmental organisations January 2011 will be subject to prevailing market (NGO) and civil society. The UN peacekeeping force conditions. in the Democratic Republic of Congo (MONUSCO) Aviation turbine fuel used in private pleasure flying Protection Unit also provides protection services to in turbine powered aircraft is subject to duty at the those in danger including relocation and advice on same rate as road diesel at 57.19p per litre. Aviation personal security. gasoline used in piston powered aircraft is subject to WA 83 Written Answers[9 JULY 2010] Written Answers WA 84 duty at 38.35p per litre. VAT at 17.5 per cent is Olympic Games 2010 applicable to retail sales of road fuels and aviation fuel used for commercial flights within the UK and private Question pleasure flying. VAT at 20 per cent will be applicable Asked by Lord Bates from 4 January 2011 in the same instances. To ask Her Majesty’s Government what initiatives they introduced in response to signing United Nations General Assembly Resolution 64/4 of 19 October IRA 2009 about observing the Olympic Truce in respect Question of the 2010 Winter Olympics in Vancouver. [HL914] Asked by Lord Laird Lord Shutt of Greetland: The UK co-sponsored the United Nations General Assembly Resolution 64/4 of To ask Her Majesty’s Government, further to 19 October 2009 because we supported Canada’s ambition the Written Answer by Lord Shutt of Greetland on to promote the contribution that sport can make to 29 June (WA 268), why they do not have details peace, including through the Olympic Truce. about the number of people killed and injured by As the host country for the 2010 Vancouver Winter Semtex explosives provided by the Government of Games, Canada sought to promote the contribution Libya to the IRA; and how they will pursue that sport can make to peace, including through the compensation from the government of Libya without Olympic Truce. The UK co-sponsored it to support such details. [HL994] Canada’s ambition, and to recognise our role as host country for the London 2012 Olympic Games and Lord Shutt of Greetland: The department does not Paralympic Games. hold this sort of detailed information. The pursuit of compensation from the Government of Libya is a private matter—the role of the Government Police: Northern Ireland have been to facilitate contact between the campaign Question and the Libyan Government. Asked by Lord Laird To ask Her Majesty’s Government what assessment Museums and Galleries they have made of the effect of the Police (Northern Question Ireland) Act 2000 on the number of Roman Catholics Asked by Lord Myners recruited to the police force in Northern Ireland; and whether they have plans to review the provisions To ask Her Majesty’s Government whether they of the Act. [HL954] are considering introducing entrance charges to national museums and galleries to offset any reduction Lord Shutt of Greetland: Roman Catholic composition in Government funding; whether they will discuss in the PSNI regulars currently stands at 29.05 per with trustees of such institutions reintroducing entrance cent, compared to 8.3 per cent prior to the Police charges; and, if charges are introduced, whether the (Northern Ireland) Act 2000. This represents good level of charges and any concessions will be determined progress towards a more representative police force. by the Department for Culture, Media and Sport or The temporary provisions of the Act that allow for by the trustees of the institution. [HL958] recruitment on a 50:50 basis are enacted by Order, which expires at the end of March 2011. Lord Shutt of Greetland: No, the Government are not considering introducing entrance charges to national museums and galleries. Rats Question Northern Ireland Office: Taxis Asked by Lord Swinfen Question To ask Her Majesty’s Government whether they Asked by Lord Laird or the European Union have plans to alter the content of rodenticide. [HL902] To ask Her Majesty’s Government how much officials of the Northern Ireland Office claimed in The Parliamentary Under-Secretary of State, expenses for the use of taxis in (a) March 2009 and Department for Work and Pensions (Lord Freud): The (b) March 2010. [HL769] European Union has plans to encourage less hazardous rodenticides through a proposed new EU biocides Lord Shutt of Greetland: The information requested regulation which would require changes in certain could only be obtained at disproportionate cost. component substances of rodenticides. The process would require a manual investigation One of the purposes of the new regulation is to of all travel and subsistence forms submitted by staff exclude the use of rodenticides containing active for these two calendar months. substances with particular hazards such as carcinogens, It should also be noted that policing and justice mutagens, substances toxic to reproduction, and functions were devolved to the Northern Ireland Assembly substances that are persistent, bioaccumulative and on 12 April 2010. The Northern Ireland Office is now toxic (PBT). However, recognising the wider public differently configured. heath and socio-economic harm that can result if WA 85 Written Answers[LORDS] Written Answers WA 86 effective rodenticides are not available, the proposal 5. Data show newly notified vacancies to Jobcentre Plus. also provides a mechanism for such rodenticides to be 6. Most recent available data are May 2010, so only April and used where certain risk and socio-economic criteria May can be given for the most recent quarter. are met. Asked by Lord Roberts of Llandudno Unemployment To ask Her Majesty’s Government what percentage Questions of people aged (a) under 18, and (b) 18 to 25, were registered as unemployed in May in (1) each of Asked by Lord Roberts of Llandudno the English regions, (2) Scotland, (3) Wales, and To ask Her Majesty’s Government how many (4) Northern Ireland. [HL864] job vacancies were notified to Jobcentre Plus in Lord Taylor of Holbeach: The information requested (a) each English region, (b) Wales, (c) Scotland, and falls within the responsibility of the UK Statistics (d) Northern Ireland, in (1) each quarter of 2009, Authority. I have asked the authority to reply. and (2) the first two quarters of 2010. [HL863] Letter from Stephen Penneck, Director-General for The Parliamentary Under-Secretary of State, ONS, to Lord Roberts of Llandudno, dated July 2010. Department for Work and Pensions (Lord Freud): The As Director General for the Office for National available information is in the table below. Information Statistics, I have been asked to reply to your Parliamentary is not available in respect of Northern Ireland as this is Questions asking what percentage of people aged a devolved matter, which is the responsibility of the (a) under 18, and (h) 18 to 25, were registered as Northern Ireland Department for Employment and unemployed in May in (1) each of the English regions, Learning. (2) Scotland, (3) Wales, and (4) Northern Ireland. Number of Notified Job Vacancies(6) in each Region of England, Wales and (HL864) Scotland by available quarters 2009-10 The Office for National Statistics (ONS) provides 2009 2009 2009 2010 2010 Quarter/ Jan- Apr- 2009 Oct- Jan- Apr- figures for the number of people registered as unemployed Region Mar Jun Jul-Sep Dec Mar May(6) based on claimants of Jobseeker’s Allowance (JSA) from the Jobcentre Plus administrative system. East 57,238 66,959 83,742 85,759 70,905 61,958 East 47,494 60,704 74,263 85,941 63,844 54,097 Table 1 attached shows the number and percentage Midlands of 16 to 17 and 18 to 24 year olds claiming JSA in each London 67,709 76,363 88,182 102,850 81,087 65,077 country and government office region in May 2010 in North 39,868 42,573 44,052 44,321 39,427 32,329 line with the standard age bands available for JSA East statistics. North 94,361 103,580 122,904 140,593 117,915 97,444 West National and local area estimates for many labour Scotland 60,860 69,265 74,155 74,118 60,260 49,931 market statistics, including employment and South 79,841 90,083 107,247 117,386 101,422 86,613 unemployment, are available from the NOMIS website East at: http://www.nomisweb.co.uk. South 57,974 69,277 80,191 85,384 72,189 61,128 West Table 1: Number of persons aged 18-24 and 16-17 claiming Jobseeker’s Allowance resident in each of the English regions, Wales 31,097 40,031 49,773 56,364 42,925 35,116 Scotland, Wales and Northern Ireland in May 2010 West 63,314 77,812 92,796 107,857 81,281 76,124 Midlands 18-24 16-17 Yorkshire 63,022 68,751 83,098 84,289 73,479 60,935 People % People % and The Humber North 23,375 8.9 210 0.3 East Source: Jobcentre Plus Labour Market System North 54,555 8.0 635 0.3 Notes: West 1. These are not whole economy figures. Coverage relates just to Yorkshire 44,655 8.1 565 0.4 vacancies notified to Jobcentre Plus and as such represent a and The market share of vacancies throughout the whole economy. This Humber proportion varies over time, according to the occupation of the East 30,600 7.1 345 0.3 vacancy and industry of the employer, and by local area. Midlands Comprehensive estimates of all job vacancies (not just those notified to Jobcentre Plus) are available from the monthly ONS West 47,360 9.2 385 0.3 Vacancy Survey since April 2001, based on a sample of some Midlands 6,000 enterprises. However, the ONS survey is currently designed East 29,930 6.0 450 0.3 to provide national estimates only. London 48,840 6.7 425 0.2 2. To provide a geographic breakdown, in most cases the South 36,645 4.9 610 0.3 postcode of the actual location of the job is used to allocate East the vacancy to a local area. Where this is missing or invalid, the South 22,515 4.8 475 0.4 employers’ postcode or the postcode of the local Jobcentre Plus West office is used. Wales 23,850 8.2 220 0.3 3. These figures are published at www.nomisweb.co.uk. Scotland 37,680 7.8 1,680 1.3 4. Interpretation of this data needs to take account of changes in Northern 16,840 9.2 85 0.2 recent years to Jobcentre Plus procedures for taking and Ireland handling vacancies. These figures are not fully comparable over time and may not indicate developments in the labour market. A Source: Jobcentre Plus administrative system. more detailed explanation is available on the nomis website. Data rounded to nearest 5. Friday 9 July 2010

ALPHABETICAL INDEX TO WRITTEN ANSWERS

Col. No. Col. No. Banking...... 79 Museums and Galleries ...... 83

BBC...... 80 Northern Ireland Office: Taxis...... 83 Olympic Games 2010...... 84 Democratic Republic of Congo ...... 80 Police: Northern Ireland ...... 84 Fuel Prices ...... 82 Rats ...... 84

IRA ...... 83 Unemployment...... 85 NUMERICAL INDEX TO WRITTEN ANSWERS

Col. No. Col. No. [HL690] ...... 79 [HL902] ...... 84

[HL769] ...... 83 [HL914] ...... 84

[HL786] ...... 82 [HL943] ...... 80

[HL788] ...... 82 [HL944] ...... 80

[HL811] ...... 79 [HL945] ...... 81

[HL863] ...... 85 [HL946] ...... 82

[HL864] ...... 86 [HL954] ...... 84

[HL892] ...... 80 [HL958] ...... 83

[HL893] ...... 80 [HL994] ...... 83 Volume 720 Friday No. 28 9 July 2010

CONTENTS

Friday 9 July 2010 Defemation Bill [HL] Second Reading...... 423 Dog Control Bill [HL] Second Reading...... 484 Written Answers...... WA 7 9