I wrote the other day that I was confused about a new clause inserted into the Crime and Courts Bill, as a result of cross-party agreement on press regulation. As originally drafted it protected regulated publishers from costs awards in libel cases, for instance, if
the issues raised by the claim could have been resolved by using an arbitration scheme of the approved regulator
I wrote:
I have to admit that subsection (2) makes my head hurt, and may be beyond my comprehension. Why should it count against a publisher that a libel claim (say) could instead have been arbitrated under a self-regulator’s system?
Later, Dr Evan Harris commented to explain the reason for my confusion:
Don’t worry, This is because there is NOT missing between “could” and “have” in (2) (a). It now makes sense.
This is typical of the bad drafting by the DCMS and the MoJ of these clauses.
In passing, let me say that this suggests strongly the this legislation has indeed been drafted and tabled in an unsatisfactory rush, as many in the press have been saying. But in my experience, what strikes most people as bad drafting is rarely the fault of the drafter. It’s hard to imagine this mistake actually making its way into a bill (as it did) if government lawyers and Parliamentary Counsel had been given clear instructions on what was required – this is the most vital stage in the process – and enough time to make sure the draft worked.
To be fair to Parliamentary Counsel and the government lawyers involved, the politicians probably didn’t allow them anything like enough time, or give them the tools to do the job as they’d have wanted. They almost certainly pressed hard for both. The government’s legislative drafting “machine” does its job outstandingly well – if ministers let it.
If what the party leaders did was haggle over the text of the legislation itself (and this is always extremely tempting to the unwary), then they made a mistake. They’d have done better to focus on agreeing the clearest possible policy statement, in clear words that everyone, including the press, campaigners and Parliamentary Counsel, could understand – and giving as much detail as they could agree. It would then have been easier for the drafters to work over Easter (with public debate on the agreement continuing in the meantime, perhaps on a better informed basis) and to translate the policy into clear legislation that was right first time.
But the point of this post is to tell you that my headache’s now cleared up. Last night the Lords amended the bill to insert the missing “not”. As Lord McNally explained (column 849):
Government Amendments 17D and 17H make two technical amendments to the new clause on costs. The first refers to subsection (2)(a) of the costs clause. The intention of this provision is to allow for costs to be awarded against a regulated publisher only if the claim is not capable of being resolved through the regulator’s arbitration scheme. However, to achieve this, the word “not” must be inserted into the condition of subsection (2)(a), to avoid the opposite being the case. Amendment 17D simply corrects this drafting error.
Carl Gardner2013-03-26T17:55:33+00:00
It’s not at all clear to me that the revised wording is much of an improvement.
Given that the objective here is to create an incentive for both parties to make use of the arbitral arm of the new regulator wherever possible one would have thought that any cost protection should be at the discretion of the court and determined on the basis that a case could and should have been resolved by arbitration had one of the parties not unreasonably refused to play ball with the arbitration process.
As such, if a case could have been arbitrated but ends up before a court because the publisher refused arbitration in the belief that the plaintiff would not be able to take the matter further due to the cost of litigation then it would be perfectly reasonable to award costs against the publisher, provided that the plaintiff’s case is successful – and vice versa, of course, should a plaintiff refuse arbitration on the basis that they think they can screw the publisher out of higher out of court settlement with the threat of expensive litigation when their realistic expectations, in terms of a likely compensatory award, are relatively modest.