Defamation Bill Second Reading in the House of Lords

The Defamation Bill was debated for the first time in the Lords

On 9 October the Defamation Bill had its second reading in the House of Lords, where, as noted at Report and Third Reading in the Commons, a lot of the detailed scrutiny and amendment of the Bill is expected to take place. It appears that the Bill is not expected to become law before mid-2013.

Justice Minister Lord McNally, after introducing the Bill stated:

  • The Government will seek views on the content of Regulations under Clause 5 (website operators) by the end of the year
  • The Civil Justice Council, chaired by the Master of the Rolls, has been asked to consider procedural changes to deal with costs and to report by March – allowing time for rule changes to be implemented before Bill comes into force.
  • The Government is taking an open minded approach to Clause 4 (responsible journalism in the public interest) and will be reflecting in the light of views expressed in both Houses.
  • Lord Justice Leveson may express views on related matters, but the Government do not want to hold up these substantive reforms on this basis.

Lord Browne for the Opposition, although welcoming the Bill, picked up areas of concern, declaring the Opposition’s hope to amend the Bill substantially and re-visit points made by the Joint Committee and MPs:

  • The Bill is largely a codification and has little by way of reform.
  • Peers are concerned that without drafts of Regulations and procedural changes – the “infrastructure” on which the Bill will sit – it will be difficult to adequately scrutinise large aspects of the Bill.
  • Lord Browne described Clause 5 as “ill-thought out and incomplete”, and will seek to have the affirmative resolution procedure used for Regulations.
  • Greater clarity is needed as to the “serious harm” test and as to Clause 4 – does Clause 4 in fact make the law clearer or should it be re-cast?
  • Lord McNally was reminded of the promise he made on funding and costs during the passage of the LASPO Act. Costs need to be addressed, the opposition intend to explore this in Committee, amongst other things they may seek to include a strike-out provision in Clause 1.
  • The Opposition also wish to consider raising the threshold for corporate claimants.

Others Lords reflected concerns about costs, the as yet unknown details of the Bill and implementation, that Clause 4 not resemble a “tick box list” of factors which could stifle investigative journalism, and the ever difficult balance between Articles 8 and 10 ECHR. Speakers included:

  • Lord Lester who also suggested the Government ask Leveson LJ to produce an interim report outlining his regulation recommendations so can be taken into account in debating the Bill;
  • Lord Mawhinney and Lord Morris both preferred the formulation “serious and substantial harm” in Clause 1 to the present “serious harm”, reminding Lords that the suggested wording was that of former Lord Chancellor Lord Mackay. Lord Mawhinney emphasised that it is crucial that preliminary issues are decided early by a judge, and urged the Government to address this procedural issue urgently;
  • Lord Black expressed concern that Clause 12 is potentially tantamount to judges dictating the front page of newspapers/running order of the news, which is inimical to a free press. The publication of corrections and apologies is already covered by the relevant regulators, thus the clause is “otiose and odious”.
  • Baroness O’Niell discussed a potential general public interest defence, calling for communications covered by such a defence to contain sufficient information that they are open to check and challenge by the reader.