Developments in Defamation – Peers Vote in favour of a New Arbitration Service
At the report stage for the new Defamation Bill on the 5 February 2013, the peers of the House of Lords voted in favour of a government-opposed amendment creating a fair, quick and inexpensive arbitration service for defamation and related civil claims to deal with legal disputes involving newspapers.
Utilising the "ready-made and carefully considered solution" proposed by Lord Justice Leveson in his report last year, the new clause tabled by Lord Puttnam (and backed by 272 peers) caters for the creation of an arbitration service underpinned by statute and to be certified by an independent body. Whilst envisaged as a voluntary system under the current drafting, those choosing not to use the recognised arbitration service could be punished by the courts through costs and damages in later litigation proceedings. From the view point of Lord Puttnam, the amendment counters the "fatal flaw" in the Bill as it had previously stood, being its notable failure to deal with the manner in which ordinary citizens would be able to utilise the protection offered by the Bill.
Whilst many peers were quick to show their support for the arbitration system, others voiced concerns about the proposals. Such concerns included, amongst others, the danger of creating a system with statutory underpinning, the incompatibility of the proposals with Human Rights legislation and the high risk that the amendments would de-rail the arbitration system being developed as part of the creation of a new independent regulator. As Lord Black highlighted, some peers were additionally troubled with deeper concerns about the innate contradiction to be created in the Bill as a result of the tabled amendment:
"This is an excellent Bill but it is a liberalising measure designed to secure freedom of expression as well as protect the rights of the public. It therefore seems deeply ironic that what is being proposed is the introduction of a system of statutory supervision-press regulation with the massive constitutional implications that that would bring."
The government's defeat in the vote appears to reflect what Lord Stevenson described as a "lack of confidence in, and the frustration with, the current process of implementing the Leveson proposals." In response to concerns that the amendment would in effect introduce Leveson "by the back door" into a bill dealing with other matters, Lord Skidelsky argued that the amendment offered the opportunity to do precisely what many feared the Government would not do. In his view, the importance of the amendment was that it was unlikely that Leveson would be introduced "through the front door".
It seems most unlikely that the amendment will survive when the Bill returns to the Commons. It does, however, reflect a growing anxiety over the ultimate fate of Leveson's recommendations.