Clause 63 - Publishing reports
Pensions Bill
10:00 am
Mr Nigel Waterson (Eastbourne, Conservative)
I am grateful for that reassurance from a QC. I would hope that the regulator would not be intimidated by the kind of tactics in which, as the hon. and learned Lady rightly points out, the late Robert Maxwell was a specialist. That consideration should therefore not apply. As for misfeasance, I am sure that there ought to be other penalties for someone in a public office of that kind who issues such a report. However, to come back to the main thread of my argument, we cannot possibly be talking about a serious, focused new regulator even remotely considering putting something into the public domain for which the dominant motive is malice.
Once qualified privilege is established—we can bring that about in an instant by amending the clause—the onus will lie on the plaintiff to prove express malice. That is quite a serious burden of proof. To put hon. Members' minds at rest, I can tell them that mere negligence or carelessness as to the truth of a statement are irrelevant. As Carter-Ruck said:
''what the law requires is not that the privilege should be used carefully but that it should be used honestly'',
and he referred to the case of Horrocks v. Lowe.
I am arguing that we should not simply put a chunk of the 1995 legislation into the Bill unprobed. It is possible to envisage circumstances in which serious damage is done by a report from the regulator. I see no particular reason why the kind of person who might suffer significantly if such a report were wrong should be barred from taking any action simply because we attach absolute privilege to the report.
I do not think that there is any argument that says that there is a quasi-judicial function involved. There is simply a totally reasonable requirement, not that the regulator should make sure that the report is right and accurate—that does not cause a problem with qualified privilege—but that there should be no malice involved. Malice should not be the predominant motive in putting such a report into the public domain.