Clause 63 - Publishing reports
Pensions Bill
9:45 am
Mr Nigel Waterson (Eastbourne, Conservative)
The Under-Secretary eggs me on, but we have a lot to get through this morning—and given the muffled nature of his egging on, I will move rapidly to my next point before he falls off his chair.
For the benefit of hon. Members who are not lawyers, and have not sued or been sued for defamation, I should explain that in one of the leading textbooks on the subject, Peter Carter-Ruck states that
''absolute privilege is a complete bar to an action for defamation no matter how false or malicious the words complained of may be''
and that
''it is in the public interest that people should be able to speak and write with complete freedom unhampered by any underlying fear, real or imaginary, that subsequently they may have to answer for what they have said.''
He also says that the point about absolute privilege is that, as the term suggests, it is absolute, and
''it is not destroyed by malice.''
I will address the relevance of the term ''malice'' shortly.
Carter-Ruck also makes the point that areas of activity in which absolute privilege applies are, rightly,
''strictly defined and will not be readily extended.''
It applies to parliamentary and judicial proceedings, to reports of both such proceedings and to certain other defined categories. As I have said, there is a leading recent case concerning parliamentary proceedings, which need not concern us.
Certain other instances are clearly set out in statute. For example, the Parliamentary Commissioner Act 1967 sets out that the holder of that post should enjoy absolute privilege when making reports to the Houses of Parliament; the same goes for the local administration and health service commissioners and the Monopolies Commission—as the Competition Commission was called when Carter-Ruck wrote the book. There is a fairly significant list of bodies that are in a position to issue reports that enjoy absolute privilege.
However, Carter-Ruck also states:
''Even those modern creatures of statute such as the ombudsmen and the Monopolies Commission . . . are included as a matter of public policy because their functions are in some degree akin to judicial functions.''
Is the kind of report referred to in clause 63 likely to be comparable to a judicial function? No, because they will simply be reports of the sorts of cases that the regulator has been dealing with. Will the Under-Secretary be a little more forthcoming than the clause about what kind of useful things will usually appear in those reports? There is no basis for arguing for absolute privilege on the strength of the function being quasi-judicial, as described by Carter-Ruck.
Why not apply qualified privilege? There is an onus on the people who are arguing for absolute privilege to show that qualified privilege will not be sufficient. Qualified privilege is quite a hefty defence against a claim for defamation. As Carter-Ruck says, where there is qualified privilege,
''an action will not succeed unless the plaintiff can prove that in publishing the words complained of the defendant was actuated by express malice, that is to say by spite or ill-will or some other dominant improper motive . . . Malice defeats a defence of qualified privilege; it is wholly irrelevant to absolute privilege.''
Carter-Ruck sets out some of the statutory and other circumstances in which statements, reports, proceedings and reports of proceedings are subject not to absolute privilege but to qualified privilege. The big distinguishing factor between the two forms of privilege is malice. He sets out some examples of statements made in certain classes of report that attract only qualified privilege. I shall not weary the Committee with them, but it is clear that the situation has been examined on a case-by-case basis.
The Defamation Acts of 1952 and 1996 set out clear rules about broadcasts, newspapers and so on. Following the Neill committee in 1991, the law was changed and expanded. As long as a body gives a fair and accurate report of proceedings—providing, for example, a fair and accurate copy of a register or an extract of a register—it happily comes under the rules relating to qualified privilege.
That brings me to the issue of malice. Carter-Ruck says:
''Express malice may be defined as a desire to injure the person defamed, or any other wrong or improper motive, which is the dominant motive for the publication.''
As he says, malice must be the dominant motive for publication. Why on earth should we underwrite a situation in which the new regulator can put into the public domain a report that is, prima facie, defamatory
to an individual, and for which the dominant motive is malice? Why did we underwrite such a situation in relation to OPRA in 1995?