(12 years, 5 months ago)
Commons ChamberRead Hansard Text Read Debate Ministerial Extracts
The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)
I beg to move, That the Bill be now read a Second time.
I am confident that everybody in this Chamber agrees that freedom of expression is the cornerstone of our democracy. In an open society, people should be at liberty to debate a subject without fear or favour, whether the matter be political, scientific, academic or anything else. That is how power is held to account, abuses of authority are uncovered and truth is advanced. But freedom of speech does not mean that people should be able to ride roughshod over the reputations of others without regard to the facts. Life and career can be destroyed by false allegations that go unanswered. The issue for our defamation laws is ultimately one of striking the right balance between protection of freedom of expression on the one hand and protection of reputation on the other.
I share the mounting concern of recent years that our defamation laws are becoming out of date, costly and over-complicated, and that they are at risk of damaging freedom of speech without affording proper protection. No one can be satisfied with a situation where the threat of lengthy and costly proceedings has sometimes been used to frustrate robust scientific and academic debate, to impede responsible investigative journalism and to undermine the good work undertaken by many non-governmental organisations. The practice of issuing gagging writs has been resorted to by many people over the years. I once had the privilege of receiving one myself from Mr Robert Maxwell, but we must make sure that the practice is not encouraged to spread further. Nor can it be a matter of pride when powerful interests overseas with tenuous connection to this country use the threat of British libel laws to suppress domestic criticism in cases of so-called libel tourism.
Turning to what is the most innovative and difficult part of the Bill, I am also very concerned that our current libel regime is not well suited to dealing with the internet and modern technology. Legitimate criticism sometimes goes unheard because the liability of website operators, as providers of the platform on which vast amounts of information is published by users, puts them in the impossible position of having to decide when to defend or censor information. Meanwhile, individuals can be the subject of scurrilous rumour and allegation on the web with little meaningful remedy against the person responsible. We need to refocus and modernise the system so that it offers effective protection, whether offline or online, both for freedom of speech and the reputation of those who have been defamed.
Those are the main reasons for the introduction of the Defamation Bill. It fulfils the commitment in the coalition agreement to review the law of libel while protecting legitimate free speech. It also, of course, draws heavily on the draft Bill published last year. I do not want to tempt fate, but I must say that I think that thus far producing a draft Bill and consulting has proved to be a very good way of proceeding on what could otherwise have been an extremely contentious issue.
The draft Bill benefited from detailed, and very helpful, scrutiny by a lot of interested people. We were particularly helped by the Joint Committee, and I am grateful to all who contributed to it, especially my old friend and colleague Lord Mawhinney and his fellow Lords for their extremely helpful contribution, which we have reflected in the Bill.
Sir Peter Bottomley (Worthing West) (Con)
On the subject of that Committee, may I say that it was my experience—which I think was shared by others who served on it—that the attitude of the Minister, Lord McNally, especially in answering questions and being very open about what was in his mind and in the mind of the Department, was very useful? Such openness brings results.
Mr Clarke
I am grateful to my hon. Friend for those comments, because it is one of the ironies of this Bill starting in the Commons that the member of my ministerial team who has devoted the most time to producing it is unable to introduce it. My ministerial colleague, my hon. Friend the Member for Huntingdon (Mr Djanogly), will wind up this debate, and both he and I would acknowledge that our noble and right hon. Friend Lord McNally played a leading part in the whole consultation and scrutiny process.
Before I discuss the detail of the Bill, let me say that parliamentary debate always elicits a broad spectrum of opinion, and defamation reform is no exception. At one end of the range of views are still some who would like this country to move towards the United States’ model, with free expression always trumping other considerations and with little or no legal redress for those who have been defamed. I find that idea unattractive and think that the current process of American electioneering shows the dangers. The well-financed production of untrue or dubious personal allegations can be taken to great length if there is no adequate protection. At the other end of the range are a few people who think, particularly in light of recent media excesses, that we should teach newspapers a valuable lesson by encouraging anyone whose feelings have been hurt to sue them. I am not sorry to say that the Bill will disappoint those with either extreme of opinion, which I hope will be echoed very little by hon. Members on any Benches in this House.
Ian Paisley (North Antrim) (DUP)
I agree that no one wants to see the Americanisation of our libel and slander laws. However, the right hon. and learned Gentleman referred to Lord Mawhinney’s report and chairmanship of the Joint Committee. Lord Mawhinney made it very clear that access to justice was critical for the ordinary citizen. Does the Secretary of State agree with me that raising the “substantial harm” test raises the bar so high that the ordinary citizen will never go into the libel courts to defend themselves?
Mr Clarke
No; I shall try to address that issue throughout my remarks. The package that we have produced is aimed at reducing costs and producing more effective remedies for a wide range of people, as well as at reducing the burdensome cost for those trying to defend themselves against actions. I shall keep making remarks that address the hon. Gentleman’s concerns, because I am anxious to ensure that we are not making things more expensive or difficult for any litigant.
Our intention is to correct the worst excesses of our current system in which, particularly for the powerful and wealthy, the law makes it rather too easy to menace responsible publishers with libel proceedings. However, we do not want sensible mainstream reform to come at the cost of giving further licence to parts of the media to publish whatever they like without regard for the truth. Equally, we want to ensure—this is relevant to the point made by the hon. Member for North Antrim (Ian Paisley)—that it is possible for ordinary people to get a remedy, but only where their reputation has been seriously harmed. We do not want to open the floodgates to endless litigation in our courtrooms by people whose feelings have been hurt but who have not suffered any particular damage. Of course, the Bill is only part of the story. No doubt the conclusions of Lord Justice Leveson’s inquiry will inform broader reforms to press regulation in due course.
Zac Goldsmith (Richmond Park) (Con)
It seems that a person would be able to take action only if a single statement caused serious harm to their reputation, but it is usually the case that people find themselves being mercilessly bullied, harassed and hounded by newspapers over a long period. There might not be a single statement that would definitively destroy their reputation, but they nevertheless find themselves being dragged through the mud without there being any individual act meriting the kind of action that the reforms would allow. In those circumstances, what kind of defence would an individual have against a £100-million organisation that is committed to shredding their reputation?
Mr Clarke
I think the law of libel offers equal protection in both situations. One single statement can be very defamatory, but so can a series of statements as my hon. Friend rightly says. That has always been the case and I do not think that anyone has ever drawn such a distinction in the law of defamation. The test will be applied to the total conduct of which the plaintiff is complaining and against which he is seeking a remedy. I have alongside me my hon. and learned Friend the Solicitor-General, who used to practise privately in this particular field. He seems to agree with my judgment on this matter, so I think we can put that fear to rest.
Let me deal with the point made by the hon. Member for North Antrim, because the next part of what I have to say is very relevant here. As I have said, alongside the Bill we are seeking to bring about a significant reduction in the sometimes punitive costs in libel cases by introducing a series of procedural changes. Those changes come on top of the Jackson reforms—this involves the Legal Aid, Sentencing and Punishment of Offenders Act 2012—to the no win, no fee conditional fee arrangements. The reforms will reduce the burden on both plaintiffs and defendants and help to reduce overall legal bills, without preventing claimants with strong cases from finding lawyers to represent them.
Our first priority has been to reform the law so that trivial and unfounded actions for defamation do not succeed. Clause 1 therefore raises the bar, by a modest extent, for a statement to be defamatory by proposing that it must have caused or be
“likely to cause serious harm to the reputation of the claimant.”
That was carefully considered in consultation by a lot of respondents. Whereas the draft Bill sought views on a test of substantial harm, which was intended to reflect current law, the new clause drew on the views of the Joint Committee on the draft Bill and the balance of opinions received in the consultation by nudging the threshold up by a modest extent. It will be for the courts to determine, in the light of the individual circumstances of a case, whether the test has been met. However, we hope it will give more confidence to defendants in, for example, the sorts of cases brought against non-governmental organisations and scientists in recent years.
Alongside a stronger test, we also want to simplify and clarify the defences available to those accused of libel. As they stand, the defences are sometimes unnecessarily complicated and too narrowly focused on cases relating to mainstream journalism, rather than the online world, NGOs, academics, scientists and so forth.
Mr Edward Leigh (Gainsborough) (Con)
Everyone wants a vigorous press commenting robustly on matters of public interest. Too much of our press, however, has sought to earn a living in recent years by destroying people’s reputations. Will the Secretary of State reassure the House that his new defences of “honest opinion” and “in the public interest” will not allow the likes of the Murdoch press to drive a coach and horses through any person’s private life?
Mr Clarke
I agree with some of what my hon. Friend says. No doubt we all get infuriated by much of what appears in the newspapers. I personally find that much of the popular press express views that I regard as ridiculous, right-wing and extremely annoying to my view of political debate, but it is important in a democracy that people such as me are subjected to that. Our test of whether we live in a society where free speech is allowed is whether we allow free speech to people with whom we disagree. That can involve matters of taste. Some of what my hon. Friend complains about concerns the ridiculous offshoots of the celebrity culture in which we now live. We can all freely express opinions about these things, but I would be hesitant indeed if any Government came to the House to legislate on such matters. In my judgment, if our press wish to be scurrilous and irresponsible, up to a point they are entitled to be so.
Kevin Brennan (Cardiff West) (Lab)
Is the Secretary of State’s position, then, that an ordinary citizen who has had an untruth published about them should have no remedy unless they can prove that it has caused substantial harm to their reputation?
Mr Clarke
It must be a serious matter causing serious harm to their reputation. Most Members have things printed about them twice a week that cause them annoyance and which they would vehemently start arguing about if they had the opportunity to do so in front of readers. It is serious matters that must be subject to the serious process of defamation law in the pursuit of a remedy—a financial remedy, an apology or whatever—in a court of law.
Mr David Lammy (Tottenham) (Lab)
Will the Secretary of State say a little more about this matter? He will understand that once the law is codified, judges will interpret what he has said. Does he recognise that for ordinary members of the public—for example, someone running a small business to whom harm can be caused if a local paper runs a particular story—what is serious is quite different from what is serious for celebrities and those in public life?
Mr Clarke
I agree. I stress that it will be for the courts to determine what amounts to serious harm in an individual case, but I agree that someone whose business is damaged—albeit by a local allegation in a local newspaper—could almost certainly demonstrate serious harm. Any citizen against whom a serious and unfounded allegation of personal misconduct is made will probably be able to demonstrate that it has done serious harm to his reputation. The hurdle is raised a little, but I trust that it will not bar any plaintiff who has had serious problems as a result of a publication.
I was moving on to deal with the defences. Clauses 2 and 3 replace the common law defences of justification and fair comment with new statutory defences of truth and honest opinion. These are areas where the law has become increasingly complicated and technical over the years. In our opinion, the revised approach should simplify the situation, ensuring that the defences are available without so many endless and costly disputes over detail and interpretation. Alongside the new defences of truth and honest opinion, we are introducing, for the first time, a statutory defence of responsible publication in the public interest. This is based on the common law defence that has been developed by the courts in recent years following the case of Reynolds v. Times Newspapers but expressed in clear and flexible terms. It provides a defence where the defendant can show that the allegedly defamatory statement is, or forms part of, a statement on a matter of public interest, and that he or she acted responsibly in publishing it.
The relevant clause identifies specific factors to which the court may have regard in deciding whether the defendant has acted responsibly, based on current case law. However, we do not want those to be interpreted as a checklist or a set of hurdles for defendants to overcome, and the list is intended to set out factors in an illustrative, non-exhaustive way so courts will retain flexibility. It is not our intention to change the Reynolds defence; we have sought to set it out in statutory form in a way that we hope will help.
Mr Robert Buckland (South Swindon) (Con)
I am listening carefully to what the Lord Chancellor is saying about the dangers of the non-exhaustive list setting a series of hurdles. Does he not think that a catch-all clause allowing the courts to look at all the circumstances of the case would cure that potential mischief?
Mr Clarke
As I said, we are not intending to fetter, as it were, the discretion of the court in the end to apply reasonable judgment to the particular circumstances of a particular case; this is meant to be illustrative. This is work that we have set out, and we will reflect on my hon. Friend’s point as we continue to scrutinise the legislation as it goes through this House.
Finally in this area of defences, we are extending the circumstances in which absolute and qualified privilege can be asserted. The defence of privilege is based on the principle that there are certain situations in which it is for the public benefit that a person should be able to speak or write freely, and that this should override or qualify the protection normally given by the law to reputation.
Clause 7 extends privilege to summaries of material as well as to reports and copies; broadens the international scope of the circumstances in which privilege applies; and clarifies that qualified privilege extends to reports of scientific and academic conferences and of press conferences. In a further important step forward for the protection of scientists and academics, clause 6 creates a defence of qualified privilege for peer-reviewed material in scientific and academic journals, as recommended by the Joint Committee on the draft Bill. The clause defines key elements of the peer-review process to ensure that publications with appropriate procedures will now be given the protection of this new defence.
All told then, I would argue to the House that the Bill is introducing sensible reform to protect freedom of expression by raising the bar for a claim and bolstering the defences available, with specific benefit for scientists and journalists. But we want to go further in some of the main areas of public concern, in particular by addressing libel tourism, which has sometimes caused damage to this country’s reputation around the world, as we are normally regarded as advocates of freedom of expression, in particular. Relatively few foreign libel cases ultimately end up in a British courtroom, but I am concerned by the use of threatened proceedings by wealthy foreigners and public figures to stifle investigation and reporting. Clause 9 addresses the issue in a measured and proportionate way, although it has had to be drafted to avoid any conflict with European law. It clarifies that a court will not hear a case against someone who is not domiciled in the UK or an EU member state unless satisfied that England and Wales is clearly the most appropriate place to bring an action. It should help ensure that powerful interests around the world will not so easily be able to use British justice to gag their critics —a move that I hope will be welcomed across the House.
Ian Paisley
I appreciate the Secretary of State’s generosity in giving way on this point. He said that our courts are becoming—or could become—a laughing stock as regards libel tourism. Does he not agree that if someone is libelled or slandered by a British person or a British publication, the victim of that libel or slander has the right to seek remedy in this jurisdiction given that they have been victimised by that publication? Indeed, the accusation of libel tourism amounts only to about a dozen cases over past years and it really is not as big a problem as some people are suggesting.
Mr Clarke
I did not say that I thought our courts would be a laughing stock; I think that our libel and defamation laws are rather good and that is no doubt one reason people try to access them. We are trying to improve them. I do not think that our standards of justice are being hurt, but different societies will form slightly different judgments of where the balance lies between freedom of expression and giving a remedy to people who are defamed. I have already said that the United States of America, which resembles this country in some ways, takes a very different view of what is actionable and defamatory if it is produced in that country.
The problem arises when people come to this country because our system is more generous to their point of view to bring cases that have little or nothing to do with the United Kingdom. I give the example of a Saudi business man, say, threatening an American publication with an action because of an article that has had tiny circulation in the United Kingdom. That is a hypothetical case, but the Saudi would be using the nature of British law to threaten a publication in an entirely different jurisdiction. That is the evil we are trying to address. We are not trying to stop British publications being sued by anybody who can come here and show that we are the right jurisdiction.
Ian Paisley
I again appreciate the Secretary of State’s generosity. The Saudi gentleman does not exist, as the Minister has said, so let us consider the cases that do exist. A governor of the state of California sued a British newspaper because it carried inaccuracies about him and sued the publisher of a British book that claimed he was a Nazi sympathiser. Other prominent individuals come to this country who have been seriously slandered by publications; surely they have the right to seek a remedy here.
Mr Clarke
If anybody is defamed by a publication in this country or wants to act against a defendant who is domiciled in this country, they will be able to bring an action. I do not regard that as libel tourism. The problem arises when two people in the same country start suing each other because half a dozen copies of some foreign language publication have in theory been available on some bookstall in London and this jurisdiction is chosen to try to get a remedy. I hope that what we have done will ensure that people with powerful interests around the world will not so easily be able to use our courts.
Mr John Whittingdale (Maldon) (Con)
Can the Secretary of State confirm that the Saudi business man almost certainly exists? The Rachel Ehrenfeld case was heard in this country when there was no connection other than the 23 copies of her book that were sold, yet it resulted in the passage of the Libel Terrorism Protection Act in New York. It is a mark of shame against this country that New York state thought it necessary to pass an Act specifically aimed against this country.
Mr Clarke
I made my remark about the case being hypothetical to avoid being drawn into arguments about that case, which is rather familiar to people who know this subject. There are arguments about how far the plaintiff had connections with this country and a reputation here, but as it happens I was producing the example of a Saudi and an American purely hypothetically and I do not think I should get drawn into the merits of a past case. My hon. Friend, who is an expert in this field, rapidly understood why those particular nationalities had leapt to my mind when I gave the example.
Alongside these adjustments in the law to help support freedom of expression, I want to ensure that effective remedies are available for those defamed. Often what most concerns claimants is not financial compensation, but meaningful public clarification that a story was wrong. We have therefore included provisions in clause 12 extending existing powers to enable the court to order publication of a summary of its judgment. Parties will be encouraged to reach agreement, where possible, on the contents of the summary and issues such as where, when and how it is to be published. However, in the absence of agreement, the court will be empowered to settle the wording of the summary and give directions on those other matters.
In addition to protecting freedom of expression and reputation, the Bill seeks to modernise the law. Our biggest difficulty has been in relation to the web, the internet and so on. Currently, website operators are in principle liable as publishers for everything that appears on their site, even though the content is often determined by their users, but most operators are not in a position to know whether the material posted by their users is defamatory or not, and very often, faced with a complaint, they will immediately remove material. The Government want a libel regime for the internet that makes it possible for people to protect their reputations effectively, but which ensures that information online cannot be easily censored by casual threats of litigation against website operators.
Steve Rotheram (Liverpool, Walton) (Lab)
Will the Secretary of State give way?
Steve Rotheram
I broadly support the Bill, especially clause 5, which the right hon. and learned Gentleman is explaining. Can he give any comfort to the parents of Georgia Varley, a Liverpool youngster who was tragically killed and whose family and friends set up an RIP website, which trolls then used to abuse and disparage her death in a sickening and vile way? Can he outline specifically the proposals to tackle such abuse by internet trolls who hide behind the anonymity of a computer to abuse those remembered on RIP websites?
Mr Clarke
I cannot possibly comment on an individual case and individual possible action. I anticipate that the difficulty may be that the defaming of a deceased person always gives rise to questions of whether any action is possible. Trolling is an extremely unpleasant, curious activity which some very nasty people appear to be going into. There have already been quite a lot of prosecutions for trolling, but we think the public are entitled to proper protection against it.
Our proposed approach, under clause 5, will provide website operators with a defence against libel, provided they follow a procedure to put complainants in touch with the author of allegedly defamatory material. This will strengthen freedom of expression by ensuring that material is not taken down without the author being given an opportunity to defend it. Conversely, it will strengthen protections by enabling people who have had their reputation seriously harmed online to take action against the real author and bring proceedings against them if the matter cannot be resolved by other means.
Dr Julian Huppert (Cambridge) (LD)
This is indeed a complex issue. Can the Justice Secretary confirm that this is an optional defence and that web operators would be entitled not to follow those regulations and not to use the defence, and that they would still be covered by the defences available under the e-commerce directive if they so chose?
Mr Clarke
That is entirely correct, but of course those web operators would also be vulnerable to possible action because they had not availed themselves of the process, which would give them one way of proceeding if they chose to do so. We are not replacing other remedies which might well be available against a publisher who took no steps to inform the defamed person of where the defamatory matter was coming from.
It will be very important to ensure that these measures—clause 5 and those associated with it—do not inadvertently expose genuine whistleblowers, and we are committed to getting the detail right to minimise that risk. We will continue to consider that and eventually some of it will have to be covered by regulation.
Concern has also been expressed about the impact of the current law on secondary publishers more generally, including booksellers and newsagents. In accordance with our aim of ensuring that secondary publishers are not unfairly targeted and action is taken against the primary publisher wherever possible, clause 10 removes the possibility of an action for defamation being brought against a secondary publisher except where it is not reasonably practicable for the claimant to bring the action against the author, editor or commercial publisher of the material.
A further related proposal to modernise the libel regime is the introduction of a so-called single publication rule. Information online can be copied instantly, stored indefinitely and accessed long after physical forms of publication, yet the current regime allows additional claims for such cases of “republishing”. The proposed rule seeks to reconcile the need to protect individuals from repeatedly having to face the same defamatory comments with the need to avoid open-ended liability for publishers when old material is accessed years later, which has the potential severely to inhibit freedom of expression. Therefore, the Bill includes a provision that will prevent an action being brought in relation to publication by the same publisher of the same, or substantially the same, material after a one-year limitation period has passed.
Agreeing a libel regime fit for the realities of the 21st century is not straightforward, but these steps constitute sensible reform to ensure that freedom of expression and protection of reputation are possible both online and offline. Modernisation, however, must also extend to the cost and length of libel cases, which are increased in current law by the presumption of jury trial. I am normally a strong defender of the principle of jury trial in criminal cases and always have been—I assure my right hon. and hon. Friends and everyone else that my political arteries have not suddenly hardened and affected my views on that.
In practice, jury trials have been infrequently used in libel cases in recent years and the majority of cases are now heard by judges alone. I believe that it makes sense to recognise that reality in law by discontinuing the presumption of jury trial, which in this case has become a kind of noble fiction that creates real practical problems for one or other of the parties. It greatly increases the cost and time taken in defamation proceedings, which can be done deliberately to advantage one or other of the parties in negotiations and bargaining. Many basic legal issues that could otherwise quickly be sorted out by a judge sitting alone, such as deciding the meaning that allegedly defamatory material can have, cannot be resolved until full trial, whether or not a jury is ultimately used. That causes unnecessary delay and expense, to everyone’s detriment.
Recognising that judges should normally rule on libel cases is also part of the wider package of procedural proposals, to which I referred a few minutes ago, that we are taking forward alongside the Bill to help reduce costs and encourage settlements. It goes hand in hand with a new preliminary procedure that we are developing to resolve key issues, such as meaning, at as early a stage as possible. Of course, there might remain occasions when jury trial is appropriate, so the Bill retains the court’s discretion to order that when it considers it appropriate to do so.
Mr Clarke
A great deal of the argument in defamation action often turns on preliminary points, such as whether a particular statement is capable of having the meaning that one of the parties attributes to it. It is much easier if a judge can deal with those preliminary matters so that the whole thing does not have to go to a full trial. Also, there is absolutely no doubt that a great deal has to be done to explain to a jury what this particularly difficult area of law is all about. The whole thing takes longer—it has to when 12 lay men and women are hearing it—which adds to the expense. Not only does that add to the costs and delays when somebody is involved in an action, as I have said, but because they sometimes threaten bringing claims before they go to court, once we start getting into the costs that might be involved in a jury trial the threat is made much more substantial by holding all this—
Mr Speaker
Yes. I have been listening to the right hon. and learned Gentleman with great interest and respect for the best part of a quarter of a century, as he knows, but the Secretary of State is a compulsive “swiveller”. Whenever he is intervened on by one of his right hon. or hon. Friends, he invariably swivels round. But the rest of the House does not want to lose him; we are hanging on his every word.
Mr David Davis (Haltemprice and Howden) (Con)
I, like my right hon. and learned Friend, am hoist with two petards: one is my belief in the principle of jury trial; the other is the practicalities that he quite rightly outlines. What I want to understand in his description of the Bill is under what circumstances a jury trial will be triggered. What are the criteria that will trigger a jury trial instead of a judge-only trial?
Mr Clarke
The decision is deliberately left to discretion, so in the end an experienced judge will have to decide whether a case is suitable, but one can conceive of a few exceptional cases whereby the whole thing depends on a question of the veracity of two teams of hard-swearing witnesses, and whereby the judge is persuaded that, because of the particular nature of the case, he would be helped by the judgment of a range of men and women, from a variety of backgrounds, who would bring their collective wisdom to deciding which side to believe.
That is simply one off-the-cuff example which comes to my mind, but if the whole thing turned on an elaborate argument about the application of the defamation laws to the particular circumstances of the publication of a scientific journal, for example, that would be a wholly unsuitable case to leave to a jury, and the whole thing would take longer and cost a lot more, even if the jury got it right in the end. That is the problem we are trying to address.
Mrs Helen Grant (Maidstone and The Weald) (Con)
Does my right hon. and learned Friend agree that the proposal could assist with earlier settlement, not just with reducing the length or cost of a hearing?
Mr Clarke
I agree strongly with that extremely good point. The more these things can be dealt with by way of a preliminary judgment by a judge, the more settlements we will get, because sometimes the whole thing really turns on one point, which can be dealt with much more quickly if a jury is not involved.
Mr Clarke
I think I had better conclude, because I have taken—as I usually do—quite long enough.
This Bill is, in our opinion, a sound piece of modernising reform that we have approached in a balanced way. We have sought in particular to defend the interests of free debate. Accordingly, the Bill contains a range of measures which will greatly strengthen the environment for open and robust scientific and academic debate, including measures to apply across the piece, such as the introduction of the serious harm test, the simplification and clarification of defences and a single publication rule, together with specific ones, such as the extension of qualified privilege to peer-reviewed material and to reports of scientific and academic conferences.
I believe that this package of measures rebalances the law in a fair and effective way so that free speech is not unjustifiably impeded and debate about issues of public importance is able to thrive, while still providing appropriate remedies for those who have been defamed. It also updates the law for the first time to address properly the most pressing challenges raised by the internet and social media in relation to defamation. I commend it as a sound, reforming Bill.
I tempted fate earlier, and the Solicitor-General, my hon. and learned Friend the Member for Harborough (Mr Garnier) and I will tempt fate again, because we believe that the process of producing a draft Bill and getting this far has produced a quite extraordinary degree of consensus that I, for one, would not have thought possible to achieve when we first embarked on modernising the law on defamation. So little interest has been attracted abroad that even the media, which one would have thought would be obsessed with the issue, are paying little attention to the debate.
There is still a debate to be had, and this House will demonstrate its usefulness in scrutinising the legislation, just as the Joint Committee on the draft Bill has shown what can be achieved in consultation so far, but I hope that in the end we will continue to command cross-party support in our efforts to address long-standing weaknesses in our defamation regime, and I commend the Bill to the House.
Sadiq Khan (Tooting) (Lab)
We welcome a Bill that seeks to modernise our outdated libel laws. The Bill is very much built on the groundwork done under the previous Government. Indeed, all three main political parties included in their manifestos a commitment to reform our defamation laws. I commend the Justice Secretary for his speech and for taking so many interventions, which means that my contribution will be a lot shorter than it otherwise would have been. The House is in a position of near unanimity in supporting the principle behind the Bill, and we will support the motion to give it a Second Reading.
I will deal specifically with the clauses in the Bill shortly. First, I would like to put on record the thanks owed to a number of key people and organisations who helped to get us where we are today, and whose further help we will need over the coming period to improve the Bill further. I am sure that the whole House will join me in expressing our appreciation to Dr Simon Singh, whose experiences of struggling with unbalanced and outdated defamation law stimulated a coming together of many scientists, academics, science campaigns, and national academies and institutes. We need to ensure that the threat of libel proceedings is not used to frustrate robust scientific or academic debate or to impede responsible investigative journalism.
The Libel Reform Campaign, in which Simon played a key role, has also driven forward the work on defamation reform. Having met people involved in the campaign on a number of occasions, I know just how determined they are to achieve the task they have set themselves. All the constituent members of the campaign—Sense About Science, English PEN and Index on Censorship—deserve praise for their hard work and determination in keeping the pressure on us here in Parliament to sort out our antiquated libel laws. Their petition of 2010 gathered more than 50,000 signatures of support—testament to the success of their campaigning and the level of support for what otherwise might be seen as a minority issue.
I pay tribute to my right hon. Friend the Member for Blackburn (Mr Straw) for the work that he did as Justice Secretary in the previous Labour Government. It was he who established the working party that started on the task of updating our libel laws. Indeed, that group led the groundwork for this Bill. His approach of working in a collegiate and non-partisan manner was instrumental in all three main parties committing themselves to completing the task started under his watch. Without him, the Bill would not be here today.
Sir Peter Bottomley
The right hon. Gentleman is right to direct the House’s attention to Simon Singh and others. If he will allow me, I would like to commend the evidence given to the Joint Committee by the editors of Nature and the British Medical Journal. Will he also allow me to add the name of Dr Peter Wilmshurst, who faced an unending campaign from a foreign manufacturer of bogus products? We should also remember that the Trafigura case was not just about libel. A lot of others in the media ought to learn to pile in behind people. If they think that their claims are right, they should help to expose the people who are taking these kinds of actions, who would then be laughed out of them.
Sadiq Khan
I associate myself completely with the hon. Gentleman’s comments. I will come to Dr Wilmshurst, the cardio surgeon he mentioned, shortly.
I pay tribute to the work done by the Joint Committee that considered the draft Bill under the chairmanship of Lord Mawhinney. I will come later to some of the excellent conclusions reached by the Committee, some of which have not been adequately addressed in the Bill. I also recognise the hard work of Lord Lester in his original private Member’s Bill.
Finally, I pay tribute to this Government for running with libel reform despite a change of Administration. New Administrations do not often stick with plans that are not wholly their own; this one has. This is not a partisan issue but a problem that needs rectifying. I commend the way in which the Government have gone about doing so and the pre-legislative scrutiny that has been carried out. I commend the Justice Secretary for taking on the baton of reform and ensuring that time was made available in this Session for a Bill to be brought before us.
Time in this House is precious, and using that time for legislation should be done only when there is a clear and demonstrable problem that needs new laws or a change in existing laws, especially when the subject is uncontroversial. Our libel laws deserve this attention, and it is right that we seek to update them. Libel laws were first established in statute through the Libel Act 1843. Since then, only limited changes have been made through the Defamation Act 1952 and the Defamation Act 1996. The law on defamation has primarily been developed by judges via case law.
As with many elements of our legal system, legislating on defamation is about calibration. We must calibrate correctly the balance between freedom of expression and the protection of reputation. Freedom of expression is one of the essential foundations of a free and open democratic society: citizens must be free to express their opinions and views on issues, people and organisations. However, there are limits to the freedom to express opinions. Freedom of expression does not trump everything else. Indeed, in the Human Rights Act 1998, it is a qualified right. It must be balanced against the impact that the expression may have on the reputation of those affected. That is obvious.
The besmirching of reputations without supporting evidence, perhaps for vindictive reasons, is something that society should rightly guard against. That is why we have defamation laws. They are a deterrent against the unwarranted or vindictive expression of opinion, and provide recourse for those who have suffered damage to their reputation. Exactly where the line is drawn between what causes injury to reputation and what is simply the expression of free opinion is not clearly defined, nor could it be. There will always be the need for discretion at the interface of those two opposing tenets.
That said, there has been growing concern in recent years that our libel laws have not kept pace with the changing nature of society. Some have expressed concern that the balance has become too tilted towards protecting reputations, at the expense of free speech, leading to a chilling effect whereby the legitimate right to speak freely and openly is inhibited or discouraged by the threat of legal sanction. Others are worried that England and Wales have become a destination for libel tourists because our perceived claimant-friendly environment attracts litigants who are unwilling or unable to pursue cases in Europe or the USA. Technology, through the expansion of the internet, has transformed the way in which comment and opinion are disseminated in a way that the world has never before witnessed.
Our overriding objective must be to ensure that people from all backgrounds have access to the legal system, should they be genuinely defamed. The chilling effect is underpinned by the system appearing to be out of reach for many people. We therefore risk a dangerous skewing of the balance away from freedom of expression and towards those seeking to protect reputations. The Defamation Bill should leave us with laws that are clearer and more proportionate.
I will now discuss specific provisions of this relatively short Bill, which contains only 16 clauses. Clause 1 will introduce the hurdle of “serious harm” and states that a statement does not defame
“unless its publication has caused or is likely to cause”
serious reputational harm. That is sensible. That hurdle is intended to prevent mundane actions that can cost considerable amounts of time and money to head off. We want to discourage trivial claims.
However, how does “serious harm” differ qualitatively from harm? On that, the Bill is not clear. My right hon. Friend the Member for Tottenham (Mr Lammy) has illustrated some of the problems. Case law refers to a “threshold of seriousness” in determining what is defamatory. To provide genuine protection against trivial cases, we need greater clarity. Otherwise, vexatious claims will not be tackled. The Law Society, of which I am still a member, is concerned that this higher hurdle is likely to inhibit many people in making valid attempts to protect their reputation. That is one issue that I hope the Committee will clarify when the Bill moves upstairs.
Mr David Davis
This matter was raised with my right hon. and learned Friend, the Secretary of State by the hon. Member for North Antrim (Ian Paisley). Does the right hon. Gentleman agree that the measure of serious harm for a corporation or large profit-making body should be very different from that for a small company or less well-off individual, and that as a result the provision should act as a deterrent against big companies using libel laws as a bullying mechanism?
Sadiq Khan
As the right hon. Gentleman will know, the Joint Committee looked into that issue and wanted a first hurdle before a corporation could sue. The Government decided not to accept that recommendation. He raised the example of corporations. The use of defamation laws by corporations has a chilling effect, especially given the inequality of arms. I am sure that that issue will be teased out and clarified in Committee, given the expertise that it will have.
As has been said, clauses 2 to 7 set out the defences that will be available to a claim for defamation. Some simply replace and codify common-law defences, while others provide new defences. I wish to touch on some of those defences.
Clause 4 is intended to address responsible publication of matters of public interest, the so-called Reynolds defence. That is a defence of responsible journalism in the public interest. The clause will abolish Reynolds and codify the factors that a court may consider when judging whether a defendant has acted responsibly.
I am aware that some groups, including the Libel Reform Campaign, are unhappy with the clause, believing that the Government have not gone far enough, that the defence is too time-consuming and expensive, and that it is unreliable because defendants are often required to clear a series of complex hurdles to gain legal protection. They also believe that it will simply freeze the Reynolds defence at the current point in time. There is genuine concern that subsequent case law may develop based on what is in the Bill. Would a “son of Reynolds”, as it were, be in the best interests of our defamation laws? We will need further debate and discussion on that important issue, and I look forward to that in Committee.
As has been said, clause 5 is intended to address defamation involving websites. It creates a new defence for operators of a website when a defamation action is brought against them in respect of a statement posted on that website by a third party.
Steve Rotheram
Despite what the Secretary of State said earlier, only a handful of people have been convicted of trolling. It is difficult to prosecute, because of the gaps in the relevant legislation, the Telecommunications Act 1984 and the Communications Act 2003. Does my right hon. Friend believe that clause 5 will do what it is intended to do and discourage and deter people who post sickening messages on RIP websites?
Sadiq Khan
I thank my hon. Friend for giving the important and outrageous example of people being trolled. It is worth saying for clarity that the clause deals only with defamation cases. I would not want the public to think that it was a panacea for all sorts of outrageous behaviour that takes place on the internet. He is right to remind us that other legislation, including criminal law, needs to be updated to allow authorities to take action against those who troll against innocent victims. We are all aware of the case of our colleague, the hon. Member who had outrageous words said against her, leading to a successful prosecution. If there is a lacuna, it needs to be filled, but we should be clear that clause 5 deals simply with cases in which a defamation claim is made.
Helen Goodman (Bishop Auckland) (Lab)
The situation that my hon. Friend the Member for Liverpool, Walton (Steve Rotheram) mentioned has two aspects to it. One is the aspect of comments appearing on a website, with which my right hon. Friend has dealt, but there is also the question whether defamation can be against a deceased person. The Bill does not address that. Does my right hon. Friend believe that it should be considered in Committee?
Sadiq Khan
As my hon. Friend will know, it has always been the case that a dead person’s estate cannot sue for defamation. It is worth the Public Bill Committee considering the issue of deceased people’s reputations and the injury that defamation causes to their family. I am not sure whether the Joint Committee did so. However, there are very good reasons why a deceased person’s estate has never been able to sue for defamation.
Ian Paisley
I want to take the point that the hon. Member for Liverpool, Walton (Steve Rotheram) made slightly further. The right hon. Gentleman must be aware of the amount of intimidation of ordinary people on the internet, particularly schoolchildren. There are tweets that lead young people to feel so devalued that they attempt to take their own lives. I do not want to exaggerate the situation, but that is becoming a more regular occurrence. Something has to be seen to be done so that “trolls”, as Members have described them, are stopped in their tracks from hurting people to such a degree that they attempt to take their own lives.
Sadiq Khan
I thank the hon. Gentleman for raising that concern. I am afraid that many colleagues will be familiar with the type of bullying, harassment and intimidation that he talks about, which ultimately leads to people considering taking their own lives. When the Government drafted the Bill, they were keen to address a void that has not previously been filled. Clause 5 will allow websites to have action taken against them, but websites will be given greater protection from being sued if they help to identify those posting defamatory messages. It is hoped that that will lead to greater responsibility among both those who operate websites and those who post messages. People will know that they when they put a post on a website, it is possible that their details will be passed on to a potential claimant bringing an action.
Mr Kenneth Clarke
Does the right hon. Gentleman agree that it would be helpful in that context to look at what else can be done about bullying, as opposed to defamation? The House should bear in mind section 127 of the Communications Act 2003, which creates an offence of sending or causing to be sent
“by means of a public electronic communications network a message or other matter that is”
genuinely
“offensive or of an indecent, obscene or menacing character”.
That gives rise to many prosecutions, but the right hon. Gentleman is probably right that it does not give rise to many defamation actions. It must be looked at in the round. We agree that people abusing the internet to abuse people to whom they happen to have taken a dislike is an increasing problem.
Sadiq Khan
A chilling effect can sometimes be a good thing. A prosecution brought against someone involved in such behaviour can lead to others not doing the same thing for fear of prosecution. The Justice Secretary is right to remind the authorities, who might be watching the debate or might read of it, that they have tools at their disposal to bring criminal prosecutions.
Subsections of clause 5 set out the circumstances in which the defence could be defeated. This is a key area in which technological developments have outstripped our laws. As has been said, a duty will be placed on internet service providers to identify internet trolls without victims needing to resort to costly legal action. The Opposition welcome that development, but the detail will be provided in regulations that we have not seen. It is important that this well intentioned clause does not inadvertently lead to a website being required to disclose the identity of a whistleblower when they are the source of a post on a website, or to websites being easily censored by casual threats of litigation against their operators.
Dr Huppert
All hon. Members accept that getting this right is complex. Does the right hon. Gentleman accept that he was not quite accurate in saying that there will be duty on websites to reveal who trolls are? If operators choose to use the defence in clause 5, they will be required to follow the regulations. If they choose not to use that defence, there would be no such duty, and therefore some protection.
Sadiq Khan
The hon. Gentleman is probably right, but as we have not seen the regulations—they have probably not been drafted—I am not sure. I commend him for his work on this. He has been involved in this issue since he was first elected, as have many colleagues on both sides of the House.
As has been said, many proposals in the Bill, including clause 5, will be introduced by regulations, probably via a negative resolution of the House, meaning, as I have just said, that we are in the dark on exactly how the measure will operate in practice; how a website operator is expected to respond, which was the point raised by the hon. Gentleman; and what protections are given to whistleblowers. For the sake of proper parliamentary scrutiny, it is imperative that the Government publish their regulations before Committee and subject resolutions to the positive procedure. That will allow Parliament properly to consider detailed plans that will have huge impacts on the operation of the Bill and defamation procedures.
Clause 6 creates a new defence of qualified privilege on peer-reviewed material in scientific or academic journals. We welcome the adoption of that recommendation from the Joint Committee.
Clause 8 introduces a single publication rule so that the one-year limitation period in which libel action can be brought will run from the date of the first publication of material, even if the same article is subsequently published on a website on a later date. The reform intends to end the current situation in which material in online archives is regarded as being re-published every time it is downloaded, which, in effect, leaves the archive operator with a limitless risk of being sued.
The Opposition also welcome clause 9, which seeks to deter those eyeing London as a location to pursue libel actions that they would not dream of pursuing in other jurisdictions. In recent years, our courts have clamped down on libel tourism, and I hope the measure, which gives courts more power to decide whether a case can be heard, will help. We need to reduce the potential for trivial claims and address the perception that English courts are an attractive forum for libel claimants with little connection to this country. We welcome steps to tighten the test to be applied by the courts in relation to actions brought against people who are not domiciled in the UK. I am, however, concerned about cases brought by EU citizens or in a state that is, for the time being, a contracting party to the Lugano convention.
Ian Paisley
This is a minor point about libel tourism, but if the law does not apply to the jurisdiction of Northern Ireland, those who would be precluded from taking an action and seeking a remedy in England could do so in Northern Ireland. Therefore, there needs to be consultation across the jurisdictions of the UK to get this right and tie it up completely.
Sadiq Khan
I am sure that the Justice Secretary has heard the hon. Gentleman’s intervention and will take on board the point he has made.
It is not clear either whether high-profile cases, such as that of Dr Peter Wilmshurst, to which the Chair of the Select Committee on Culture, Media and Sport referred, or that of Rachel Ehrenfeld, would have been prevented if clause 9 had been in place at the time. If the Justice Secretary or the Minister winding up the debate cannot address this issue, it will need to be looked at further in Committee.
Clause 11 removes the presumption in favour of jury trials in defamation cases. Although this reversal will, we hope, help to reduce costs and improve clarity, there is a danger in restricting jury trials, particularly where the key issue is who is telling the truth. However, the Bill still gives the court the discretion to order a jury trial where it considers that to be appropriate, which is an important safeguard. I note the comments made by the right hon. Member for Haltemprice and Howden (Mr Davis), and we expect that the Committee might want to explore the criteria for the judge to consider when deciding whether a jury trial should be ordered.
Mr Lammy
Although much has been said about the cost of jury trial, does my right hon. Friend agree that we would not want to give an indication in the House that this is a slippery slope or that we ought to start thinking about cutting jury trials in criminal cases? The matter was debated at length in the Joint Committee, and there are circumstances where jury trials should remain in defamation cases.
Sadiq Khan
I thank my right hon. Friend for his intervention and for his contribution to the Joint Committee. Of course, he is right, and the Justice Secretary will have reassured the House with his comments about criminal cases. My right hon. Friend will be aware that there are still jury trials in civil cases involving what are known as constitutional torts—malicious prosecution and false imprisonment. The provisions in clause 11 still allow a trial by one’s peers in appropriate cases. What the Committee should look into is the comments of the right hon. Member for Haltemprice and Howden about the criteria that one would expect a judge to apply. The key thing is that the presumption of a jury trial has now been removed, which will lead to a reduction in costs and, one hopes, less of a chilling effect than where the “threat” of a jury trial is hanging over a defendant, with all the additional cost that could lead to.
Sir Peter Bottomley
On clause 11, if the judge is making the decision alone, and if the case is determined by meaning and there is a range of meaning, does the right hon. Gentleman agree that it is far better that the judge should say to the parties at an early stage, even before the case gets to court, that where the person who has published has used a word with a hard meaning and a soft meaning—for example, in the case of the Hutton report, “sexed up”—they have an opportunity to say, “I actually meant the soft meaning, not the hard meaning,” and thereby have the whole case disposed of, rather than having it fought out, even in front of a judge alone?
Sadiq Khan
For the second time the hon. Gentleman has made an intervention about a point that I am coming to. I shall come to the procedural pre-action work that I think is missing from the Bill and which the Committee should look into.
Let me move on to concerns about access to justice. The Justice Secretary will not be surprised to hear me say that under this Government we have seen access to justice seriously curtailed. The recently passed Legal Aid, Sentencing and Punishment of Offenders Act 2012 will have an impact on defamation cases. Claimants in defamation actions will no longer be able to insure themselves against costs, and even if they are successful, they may have to pay some or all of their damages in lawyers’ fees. Although some other claimants—for example, in personal injury cases—will be protected against costs, no such protection is in place in libel cases. It is not clear whether high profile cases brought by individual members of the public—such as that brought by the McCann family against tabloid newspapers—would now happen. We would like to see similar protection for such cases as that given to personal injury cases, rather than simply limiting defamation cases to the most wealthy.
The Justice Secretary will be aware of the campaign co-ordinated by Hacked Off and the Libel Reform Campaign, which included a letter that the McCanns recently sent to the Prime Minister expressing their concern about access to justice. I want to quote part of that letter, which is very powerful, and which I hope will be considered by the Committee during the passage of the Bill.
“A successful libel defendant obviously does not get any damages so these reforms will prevent all but the rich from being able to defend their right to free speech against wealthy libel clients…In future, ordinary defendants, like Peter Wilmshurst, Hardeep Singh and Heather Brooke would also be unable to get support for legal action against them often by large institutions with deep pockets trying to silence them. That will be bad news for science and medicine, for free religious debate and for transparency in the public interest...And victims of the tabloid press like Christopher Jeffries, Bob and Sally Dowler, Kate and Gerry McCann, and Robert Murat will not be able to take legal action against the tabloids for hacking into their phones, for false accusations and for gross misrepresentation”.
On that subject, my colleague Lord Prescott made it clear during the progress of the Legal Aid, Sentencing and Punishment of Offenders Bill in the other place that his successful defamation claims against newspapers would not have been possible if the Government’s proposals on civil litigation had come into force. In response to Lord Prescott’s remarks, the Minister, Lord McNally, assured the other place:
“I cannot imagine that the kind of issues that the noble Lord, Lord Prescott, has raised tonight will not be dealt with fully in that Defamation Bill.”—[Official Report, House of Lords, 27 March 2012; Vol. 736, c. 1332.]
Yet I do not see those issues being dealt with anywhere in the Bill. If the Government do not bring forward proposals to address this deficiency in Committee, we will have to do so.
Guy Opperman (Hexham) (Con)
Does the shadow Minister agree that, as a result of Lord Leveson’s review into press intrusion and the ability of the man in the street to get access to justice in libel, the issues that he is now raising could be readdressed?
Sadiq Khan
I thank the hon. Gentleman for his intervention; I know that he practises in this area of the law. In answer to his question: there is no guarantee that that will happen. This Defamation Bill gives us an opportunity to ensure that access to justice remains a possibility for all our citizens, and we ought to take that opportunity in the hope that another judge in another inquiry might come up with a solution. Let us bear in mind that there were two defamation Acts in the last century, and just one in the century before that. It is possible that there will not be another during our parliamentary careers, so it is appropriate for us to take this opportunity to ensure that this Bill is as perfect as possible.
Paul Farrelly (Newcastle-under-Lyme) (Lab)
I support the thrust of the Bill, but does my right hon. Friend agree that there is a danger in carrying out piecemeal reform, and in saying that certain tasks will be dealt with by Leveson and others by the Civil Procedure Rule Committee, because, as he rightly says, there is no guarantee that they will be dealt with?
Sadiq Khan
Absolutely. Before we reached this stage, a huge amount of pre-legislative work was carried out, by the Joint Committee and in relation to the draft Bill. It would be a wasted opportunity if that work were not taken up during the Bill’s Committee stage or, failing that, when it reaches the other place.
I have referred to the huge work done by the Joint Committee. We welcome some of the reforms suggested by the Government, but the Committee argued that the reduction in the extremely high cost of defamation proceedings was essential to limiting the chilling effect and making access to legal redress a possibility for the ordinary citizen. It proposed an approach based on strict enforcement of the pre-action protocol governing defamation proceedings, which has three elements. The first involves a presumption that mediation or neutral evaluation will be the norm. The second involves voluntary arbitration, and, if the claim has not been settled, the third element would involve court determination of key issues using improved procedures. Once again, the Bill is silent on this matter. I remind the Government that Desmond Brown QC, a leading libel barrister, said recently that
“it is no good amending the substantive law unless serious attention is paid to costs and judicial case management”.
I reiterate that we welcome moves to drag our defamation laws into the modern age, but that we, on this side of the House, believe that more can and should be done to make the Bill fit for the challenges ahead. We will be looking for greater clarification in a number of key areas, and for new clauses to address other omissions, some of which I have touched on. The Committee stage provides us with the opportunity to improve on and refine the Bill.
Given that there have been only three libel Acts since 1852, we need to grasp the nettle on this occasion as there may not be another chance to update our defamation laws for generations to come. Labour Members look forward to doing our bit to improve this Bill, and hope that the cross-party and collegiate manner in which libel reform has been pursued over the last four years will continue and move forward with the passage of the Bill.
Nadine Dorries (Mid Bedfordshire) (Con)
I have to attend an all-party parliamentary group annual general meeting, so I apologise if I have to leave before the next speech has finished.
I particularly welcome clause 5 and I shall speak mainly to it, addressing the issues of social media, trolls and the damage that can be caused to individuals, particularly to young people.
Some in public life accept the consequences of engaging with social media. For many of us in this House, our job and our way of life necessitate engagement with such media, but we are, I suppose, big, bad and ugly enough to be able to deal with the consequences.
It was interesting that the hon. Member for Liverpool, Walton (Steve Rotheram) highlighted issues concerning children and deceased individuals, and the fact that an estate cannot have any redress in internet trials of children and young people. I have experienced a couple of cases myself. As the hon. Gentleman also said, there are already laws, but there are two types of internet trolls. There are those who know very well indeed how to negate those laws and how to dodge them so that they do not get prosecuted. They troll and post on the internet in a way that ensures they are protected from prosecution. I know this from people who have contacted me and from two police investigations that I instigated. There are some very clever people out there. There are also people—otherwise sensible, learned and normal people—who, when they sit in front of a computer and veil themselves in a cloak of anonymity, can turn into a troll or almost some kind of monster. These are the people who occasionally get caught and are occasionally prosecuted, but it does not happen very often.
Opening my front door one morning, I was surprised to find three Bedfordshire police officers lying on their backs with their faces under my car. This was because a student from Oxford had posted on the internet that he was going to bomb it. The Bedfordshire police were assiduous, but at the point of prosecution I decided not to go ahead. I considered the fact that a 20-year-old sitting in front of a computer who suddenly made a spontaneous comment possibly did not deserve a lifetime criminal record for a foolish act. I thought that his having been contacted by the police was probably enough of a deterrent to stop him doing such a thing again. Given that this was a student from Oxford, one imagines that he was an intelligent individual.
In another case, a man who I believe worked in the civil service whose wife was pregnant posted on the internet that he would like to lock me in a car, set it on fire and watch my flesh melt from my bones. I thought that was pretty graphic, but again I chose not to prosecute, as this was a family man with a good career whose wife was about to have a baby and I thought that the police’s intervention might be enough to prevent him from doing something similar again. As a Member of Parliament, I accept that when I speak about various campaigns and issues, it may elicit this kind of response from people who do not agree with my point of view.
Other people are not in the public eye and do not expect to receive the condemnation that we receive for the positions we take. Some people spend their life building a reputation—it might not be a major one, just one in their field, perhaps that of a teacher, a health worker or someone working commercially—based on their integrity, expertise and ability. In building that reputation, they also build their own persona and status, and identify themselves through whom they have become.
When a newspaper prints a story about an individual, or there is an altercation between two individuals, all that those people identify themselves with—all that they believe themselves to be—can be destroyed by one posting by an internet troll. For some people that is incredibly serious, and carries psychological consequences. Their identities may be challenged to the extent that they doubt that they are who they thought they were. There is a famous example of, I believe, a European Prime Minister who suffered and committed suicide, because the person he had built his life up to be had been suddenly taken away from him by what people had written on the internet. There are many consequences about which we never hear, so we sometimes do not know what people have to deal with on a daily basis.
Let me give another example, from my own experience. I was on a live television show this morning. The first question that the presenter asked me was, “Is it true that your ex-husband gave you an ultimatum—that if you did not give up politics, he would leave you?” My ex-husband is quite poorly. Anyway, he would not have dared to give me such an ultimatum, and the fact is that he did not. I was asked the question because of the lie that someone had posted on the internet seven years ago. My ex-husband is actually quite ill, but I could not filter the question on live television. That is one of the consequences of indiscriminate postings, comments left on websites that can be regurgitated years later.
Steve Rotheram
The hon. Lady has raised a very important point. There are people I, being a scouser, describe as idiots, who get involved in this sort of activity thinking that it is a bit of banter, which it is not. However, there are also people who are professional trollers. There is something called The Trolling Academy, which gives advice, specifically “Target MPs”. I have been targeted, and I think that others have as well. Someone said on Twitter that they wished I had AIDS, for instance. As the hon. Lady says, it is fine for those of us with thick skins, but there are ordinary, innocent people out there whose lives are detrimentally affected by trolls. That is why I suggested that clause 5 might need some additional work.
Nadine Dorries
As always, the hon. Gentleman has made an excellent point. I have discovered that Twitter has a block button. All that you need to do is block someone, and I do it all the time. A parody account called Blocked By Nadine has been set up on Twitter because I have blocked so many people. However, I think that most social media networking sites are very responsible. They respond to complaints and work with the police. Although clause 5 is welcome, I think that there is a degree of responsibility among the more well-known and well-used sites, where people are very much aware of the professional trolling that the hon. Gentleman has mentioned, and of the fact that MPs are being targeted. Besides, there is always the block button: we do not have to see what anyone has said if we do not want to.
One of the big issues is how clause 5 will protect young people from the cyber-bullying which I am sure we have all heard about from parents in our constituencies. Young people are bullied on the internet—on Facebook, and on other social networking sites. That was always going to be a consequence of the establishment of social media. As was pointed out by the right hon. Member for Tooting (Sadiq Khan), technology of that kind has moved way ahead of UK law. It has left the law wanting, because it is unable to protect some of the most vulnerable people, particularly the young. The right hon. Gentleman also said that we might not have a chance to debate the matter again for another generation. I hope that that is not true, because technology will continue to move apace. In fact, I almost feel that this legislation should be returned to the House annually, because technology will continue to develop and new problems and challenges will regularly arise.
As I know from constituency cases, young people without the ability to deal with insults, defamation and the rubbishing of their young and precious reputations on the internet are far more vulnerable than any adult. When someone posts a message on the internet saying that a certain young girl is fat and ugly and so forth, it can take the victim a lifetime to get over those words. They are often not words that somebody would say to another person without hiding behind the cloak of anonymity, which is why they use an anonymous persona on the internet. In some cases they might be known, however, but what is said on the internet is like sending an e-mail, which is different from saying the words directly to the other person; it is much easier to type something and press “send”, and then it is gone, but what has been written can have huge consequences.
As we know, in some areas of the country there have been suicide pacts and groups of suicides among teenagers, and social networking and social media have played a part in all those cases. It is probably best not to go into the details, however. We must put in place a mechanism by which social networking sites and websites can be contacted so that they respond to such cases quickly.
I rose to speak in order to highlight some of the problems that exist, based on my own experience and the experiences of some of my constituents, and to explain why I believe clause 5 is important. This Bill is now before the House, but we must not wait another 10 years or another generation before we look at this matter again. I ask the Secretary of State to make a commitment that it will be looked at more regularly, as the internet is constantly evolving and developing and young people and the vulnerable must be given protection.
Helen Goodman (Bishop Auckland) (Lab)
It is a pleasure to follow the hon. Member for Mid Bedfordshire (Nadine Dorries), who has spoken a lot of common sense this afternoon. I recognise her descriptions of constituency cases. A constituent of mine who was a victim of domestic violence has been defamed in a newspaper, the family of a murder victim was trolled by the offender’s family, and there is also the case of the family of a soldier who died in Afghanistan, about whom remarks were made which, had he lived, would have been defamatory. All these cases are very alarming and serious.
The police are not up to speed on such internet crimes. When we go to the police with such issues, their mentality is such that they in effect say, “Well, it’s on the internet, so it can’t be too serious. Don’t worry about it.” As the hon. Lady pointed out, however, such cases are very serious.
The previous Labour Government initiated post-legislative scrutiny. I do not know whether the coalition Government are continuing with it, but it provides an opportunity for checking and reviewing the effectiveness of legislation.
While at the other end of town Lord Leveson is examining the practices and ethics of the press and is mainly focused on its misbehaviour, it is a pleasure to have before us a Bill which will perhaps offer a more positive agenda and support good quality journalism.
Change is undoubtedly needed, which is why the manifestos of all three main parties contained commitments on libel reform. There are four glaring problems. The first is access to justice, which is clearly lacking for most people. I do not know why, but libel in the UK is much more expensive than it is in other countries. Secondly, there is the problem of libel tourism, when cases that have nothing to do with British citizens are brought through the English courts. Thirdly, there is the chilling impact on scientific debate when legitimate criticism, especially of large companies and their products, is sometimes suppressed. Other Members have referred to the cases of Simon Singh and Peter Wilmshurst. Finally, the law needs to be brought up to date to address the new technologies and the internet.
I welcome the Government’s intentions in bringing forward the Bill, but I have some doubts about whether it goes far enough. I hope that the Bill Committee will consider making changes so that we do not miss the opportunities that the Bill presents. Ministers need to make it clear what they mean by “serious harm”: it must relate to reputation and not just to material harm. I agree that the threat of bringing libel proceedings as part of reputation management must end, but we need greater clarity from Ministers than we have had so far.
The Bill introduces a defence of “Responsible publication on matter of public interest”, in clause 4. That is an improvement and should strengthen journalists’ freedom to undertake serious investigations. Of course, everyone in the House favours a free press and wants it to fulfil one of its key roles in an open society of uncovering corruption and wrongdoing. Quite rightly, this defence should facilitate that. I am sympathetic to Ministers’ unwillingness to define “public interest” but I hope that they will be able to give some examples. For example, do they share the definitions in the current Press Complaints Commission code and Crown Prosecution Service guidance? It would be helpful to acknowledge that public interest covers both substance—the importance of the issue being debated—and process: how thoroughly journalists have checked the story they are publishing. What is not quite clear is why and in what respects the Bill has departed from the Reynolds defence. It does not match the Reynolds defence exactly and it would be helpful if Ministers explained why they have chosen to change the Reynolds defence in a number of respects.
Clause 5, “Operators of websites”, looks too weak in the sense that by abandoning the publishing role that exists for parallel situations in other media—for example with the letters column of a newspaper or the broadcasting of a TV chat show—clause 5(2) makes things very hard for a person who is defamed on the web because they would have to track down the originator even if they had been given the address by the website’s operator. That seems rather unfair. Surely it should be a basic principle, which we should establish across the board, that the net is not outside the law and cannot be, like the forest in the 14th century and the time of Robin Hood, a place of pure anarchy. The rights and responsibilities that we have developed in the real world should be reproduced in the virtual world. In some respects the net is different in that it is large, vast and global, so we cannot simply have the same rules to secure the same outcomes, but unless we tackle websites rather more effectively than the Bill appears to, I fear that a massive loophole will remain. One problem is that the measures produce unfair competition for newspapers, which are bound by more restrictive and tighter definitions.
Zac Goldsmith
Does the hon. Lady agree that there has to be a sense of realism in relation to the web? If every defamatory comment posted on Twitter, Facebook and so on was followed up with some kind of state action we would need a new Government just to police the web. That would be structurally and practically impossible. There has to be a sense that if a lonely Twitter tweeter with 15 followers were to make an insulting comment, that could not be anything like as serious as its being made by someone with 1 million followers. There has to be recognition of the fan base or platform at which insults are hurled.
Let me make one further point about the internet.
Zac Goldsmith
Apologies. Very quickly—this goes back to the point made in the previous speech. When a law is broken and someone is threatening someone’s life, for example, it is incumbent on those who receive such threats to pursue the matter to the maximum possible penalty regardless of whether they are 16, 20 or 25. If they do not, people will continue to be able to inflict that threat and pose real dangers to other people. Even—
Madam Deputy Speaker
Order. That was a very long intervention, much as it might have been appreciated by hon. Members. If the hon. Gentleman wants to make a longer intervention—it is called a speech—he can try to catch my eye.
Helen Goodman
The hon. Gentleman’s intervention was so long that I cannot remember what he said, but I know that when I was listening I agreed with both his major points.
The solution of notice and takedown proposed by the Joint Committee on the draft Bill is a good, pragmatic one, recognising that although we cannot legislate for the net in exactly the same way as we do for other areas, we can reproduce the rights and responsibilities in the real world. I must say to Ministers, however, that given that the Joint Committee report was produced last October, they ought by now to have got parliamentary counsel to have drafted the regulations, so that we could see them and be confident that they were right.
Clause 10 is extremely welcome. We should probably call it the Private Eye clause. For years, high street newsagents refused to stock the Eye because they thought they might be sued over its potentially litigious content. The clause is welcome, therefore, given that we are all deeply dependent on the Eye for keeping up to speed with what is going on.
As is often the case with this Government, however, the problem is not so much with what is in the Bill as with what is not in it. There is nothing to tackle the lack of access to justice for ordinary people, whether as claimants or defendants. That inequity was demonstrated in the case of Trafigura, which damaged the environment in Ivory Coast, and in the case of Barclays and Freshfields concerning tax avoidance. Those large corporations were able to hide and threaten The Guardian, which was trying to publish stories about them. I hope that my hon. Friend the Member for Newcastle-under-Lyme (Paul Farrelly) will say more about those cases. When I am told, not by the editor of The Guardian but by the editor of another quality national newspaper, that his major, No. 1 problem is oligarchs threatening to sue his newspaper when he tries to report on them, I know we have a problem that needs addressing. The Libel Reform campaign, which campaigned for the Bill, has called for it to include a clause requiring non-natural persons to show actual or likely financial harm. The campaign is right. Such a clause should be inserted and would be a helpful strengthening of the Bill.
As my right hon. Friend the Member for Tooting (Sadiq Khan) said, the Government have done nothing to right the wrong of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 through their failure properly to implement the Jackson proposals on no win, no fee cases. The McCann and Dowler families would not have been able to take the newspapers to court under the laws that the Government have implemented. That is a complete disgrace. We want a justice system available to all and a free and responsible press, but we will not achieve the latter without the former.
Sadiq Khan
My hon. Friend is talking about access to justice. Does she accept that if the Government took on board the Joint Committee’s recommendation to have alternative dispute resolution much earlier, it would reduce costs and improve access to justice, notwithstanding her concerns about the changes in the Legal Aid, Sentencing and Punishment of Offenders Act?
Helen Goodman
My right hon. Friend is absolutely right about that. A further thing that we need to tease out is whether as much as possible has been done in the Bill to bring down the costs of libel cases. I very much hope that the Minister will be able to respond positively—if not this afternoon, in Committee.
David Morris (Morecambe and Lunesdale) (Con)
Thank you, Madam Deputy Speaker, for allowing me to contribute to this important debate. It is a convention of this House that right hon. and hon. Members declare an interest at the beginning of their speech, but today I will do the opposite and state, for the record, that I was not the David Morris who was co-defendant in the “McLibel” case. It remains the longest running English civil law case.
It has been said that the law of defamation has a chilling effect on freedom of speech. Trials can be complicated, expensive and, particularly in the “McLibel” case, lengthy. Perhaps the exclusion of jury trials will assist, as facts can often be technical and generally complicated. Legal costs often run into tens of thousands of pounds, and it is not uncommon for those defending their reputation to declare bankruptcy as a result of the costs. In my view, that is not fair.
As this House is aware, defamation actions originate before the High Court. Some right hon. and hon. Members have argued that, certainly in the case of privacy actions, more accessible and cheaper actions should be available in the lower courts, and I can see no reason why the same should not apply to defamation. Perhaps there could be a fast track within the county court that allows for apologies to be issued and low value damages to be awarded.
When I read the Bill, I was pleased to find that my right hon. and learned Friend the Lord Chancellor had incorporated a provision in respect of serious harm. Our libel laws have been described as “claimant friendly”; the burden of proof currently lies with the defendant, which, of course, is the exact opposite of the situation applying to any other legal action. I hope this change will redress the balance, eradicating unnecessary litigation.
In recent years, so-called “libel tourism” has been a burden on our civil legal system. According to media lawyer Ursula Smartt,
“in September 2010 the Daily Telegraph reported that libel challenges by actors and celebrities in the London courts had trebled over the past year.”
London is often described as the “libel capital” of the world. Libel tourism, at its simplest level, is when foreign citizens conduct actions against foreign citizens in British courts. One notable exception in this regard is what happened in the United States of America in August 2010, when President Obama signed an agreement that protects US citizens from British libel decisions. Libel tourism perhaps occurs as a result of the extraordinarily high damages that are often awarded, and I would like assurances from the Minister that he will take all possible steps to eradicate libel tourism.
Many of us have watched with great interest the development of the case law in relation to the internet. Right hon. and hon. Members will be aware that the social network website Facebook is within the scope of this jurisdiction as a result of the Applause Store case, yet Twitter is not. Indeed, according to the Twitter statement on the website of the Leveson inquiry, Twitter
“does not respond to complaints regarding the content of the Twitter service”.
That appears to directly contradict the case law established in both the Demon Internet and the Applause Store cases, although, as previously stated, there is no case law that brings Twitter within the jurisdiction of our courts. Some would argue that this is a victory for freedom of speech, whereas others would say that one cannot fit defamatory statements within Twitter’s 147 characters. We must balance the protection of reputation with the ability to have free speech, while keeping in mind that we do not wish to encourage so called “libel tourism”.
It is not just libel tourism that is increasing. In 2009-10, 30 celebrities brought libel claims, including Peter Andre, Sir Elton John and David Beckham, compared with a figure of 11 in 2008-09. I was pleased to read in clause 4 that what has become known as the “Reynolds defence” has been incorporated into the Bill; this is a very useful defence that encourages investigative-style journalism. It is an important part of our democratic process that politicians and those who hold public office are held to account—a point that Greg Lambert at my local newspaper, Morecambe’s The Visitor, appears to have taken to heart.
There has been much debate about the Duke of Brunswick rule. The rule suggests that re-publication of a defamatory statement is also defamatory. I accept that that rule, decided more than 150 years ago, is out of date, but journalists should be encouraged to check their sources for accuracy rather than allowing the reproduction of inaccurate statements or photographs that can often have an effect on their victims’ personal lives that outweighs the price to the public of a cheap tabloid paper. Perhaps that is why we do not see the serial sackings of editors when they are found out for their disreputable practices.
I thank my right hon. and learned Friend the Secretary of State for bringing this Bill to the House.
Ian Paisley (North Antrim) (DUP)
I must say at the outset that I agree with the Secretary of State’s point that introducing law fit for the 21st century in this subject area is not straightforward. I think we would all say a hearty “Hear, hear” to that. It is not straightforward and it is right that this House should start to tackle it. I also believe that we should ensure that our defamation laws are not subject to abuse by those who bring forward trivial matters to block proper freedom of speech and freedom of expression on very important issues.
Like some Members, however, I am concerned by clause 1, which introduces the serious harm test. We should recognise that no matter how we cut this, a serious harm test will raise the bar for bringing a claim so that any case involving serious harm to the reputation of an individual can be brought only once serious harm is clearly established. That raises the bar for many people.
I asked an eminent lawyer in Belfast about that particular issue. Paul Tweed is the author of a seminal book called “Privacy and Libel Law” and practises in three jurisdictions. I asked him about that specific point and his answer was quite chilling. He said that
“anything short of being called an axe-murderer probably falls short of the requirement”.
We should therefore seriously consider the serious harm test, because it will have significant consequences not for people of reputation but for ordinary people who will have to consider very carefully whether to invoke the law to protect themselves.
Mark Twain wryly observed:
“There are laws to protect the freedom of the press’s speech, but none that are worth anything to protect the people from the press.”
We should enact laws that actually protect people, but the press has become so powerful across the United Kingdom that ordinary people feel that they have no protection when they are smeared or slimed by the media, which has all too often been the case. We regularly see the withdrawal of a statement or a front-page story resulting not in a front-page apology but in a postage stamp of an apology beside the advertisements. Many ordinary folk feel that that is grossly unfair.
This law could have the effect of creating even greater freedom for the press. The general public find it more difficult to secure access to justice at present and I am concerned that we should ensure that access to justice is liberated and that people feel that they can use the courts to protect them when they are under attack.
Let me quote again from the letter I received from Paul Tweed, the solicitor in Belfast. He said:
“As a media lawyer of more than thirty years standing, and practising in three jurisdictions from offices in London, Belfast and Dublin, I can testify that it is now becoming almost impossible for a Claimant without substantial financial means to contemplate a libel action. Even before the introduction of any new legislation, the financial odds are stacked heavily against the ordinary man”
and they will not go to court.
Before changing our defamation laws, the Government should consider other matters. They should, for example, consider our privacy laws and try to clarify, consolidate and codify them. The press has the modus operandi that they can publish and be damned, knowing that many individuals are too intimidated to take, or financially deterred from taking, legal action, leaving their reputation sullied and scarred by the further accusation, “Sure, if it’s not true, sue them.” If people cannot afford to take legal action or are too intimidated by the prospect of going to court, the scar is all the deeper.
Not only should we codify our privacy laws, but we should have statutory regulation of the press. That should be considered in tandem with these changes to defamation law. This should be done completely, not piecemeal, as was suggested. The Press Complaints Commission has been a complete failure for individuals, whether people have an inflated reputation or otherwise. Ofcom has demonstrated that it can regulate slightly better than the PCC. The broadcast media generally are more responsible, as a result of the robust stance of Ofcom, not of the media.
Internet service providers operate in jurisdictions where they are immune from prosecution, so many ISPs are moving their activities to the United States of America, where they can publish whatever the heck they want and get away with it in the full knowledge that they will not be sued and that they cannot be touched. That breaches our law and undermines the rule of law in this country. We need some sort of cross-jurisdictional approach that allows us to approach our American neighbours and create a pact that prevents such abuse of our laws.
Dr William McCrea (South Antrim) (DUP)
When my hon. Friend speaks about the scar that people can endure through defamation, does he realise that that scar can be so deep for some people that they are driven to suicide?
Ian Paisley
That point is worth dwelling on. Another speaker today mentioned that they had been trolled by certain individuals and had decided not to pursue them. Another Member of Parliament made clear their view that trolls should be pursued to the nth degree. I agree with the latter view and with my hon. Friend.
My hon. Friend the Member for East Londonderry (Mr Campbell) was trolled on an internet site. It was said that he should be shot. In Northern Ireland such things carry a certain weight. I am glad that that person was prosecuted by the courts and fined. I do not believe that they received a custodial sentence, but I believe they were seriously fined. There needs to be deterrent activity, because people abuse the internet. When my father was in hospital recently, someone thought it was good fun to take a picture of him while he was on a life support machine and to try to publish that on the internet. That person has lost their job and I hope that they go to jail. I believe that that is a gross infringement of people’s privacy and people’s rights.
Such things have an impact on young people in particular. Young people are driven to suicide because of accusations such as that a girl is too fat, or about how they look in school, the job they do or the way they have combed their hair. That can have a debilitating effect on a person’s life, especially in the light of the all-prevailing and all-invasive presence of the social media. We need to take steps to protect people from that.
Lord Mawhinney offered some commendable suggestions in the other place in relation to the requirement for significant penalties for defamation. The law must provide protection against unwarranted or serious damage—in other words, gossip. Gossip has a very damaging impact on the lives of ordinary people and we have to find a way of protecting individuals from that. We must make access to justice a priority and a possibility, but the costs involved currently prevent that from happening. Apologies must be printed in a way that is a deterrent. As I said, a front-page slander, when it is proved to be so, often results in a postage stamp-size apology. That is wrong. Apologies must be printed in a meaningful size, style and weight. I also believe that there should be prior notification before publication, because damages are largely inadequate as a remedy when a person’s reputation has been damaged.
Neil Carmichael (Stroud) (Con)
The hon. Gentleman is right about gossip, defamation and the connection to harm, but does he agree that the Bill quite properly expects there to be a definition of serious harm behind a successful prosecution?
Ian Paisley
I would like to see the definition of serious harm and think that we might do so in advance of the details in Committee or on Third Reading.
It was Oscar Wilde who said that the truth is rarely pure and never simple, and I think that is why we need a good, sensible and practical law in this field. It is not just a simple matter of something being a lie and someone therefore being able to sue and get a claim; it is the innuendo that the press often uses, the “nudge nudge, wink wink” interpretation that can ruin a person’s reputation and often does more damage than a blatant lie can do. Blatant lies, because they are normally so blatant, are not always believable, but the “nudge nudge, wink wink” innuendo, which is almost a lie but not quite, does more damage and is more reckless. We need to ensure that these laws properly address that type of abuse. As children we often sang the little chorus, “Be careful little tongue what you say,” but the fact of the matter is that the press are not careful in this regard.
Michael Ellis (Northampton North) (Con)
The hon. Gentleman is making powerful points, many of which I agree with, but does he also bear it in mind that there are limited forms of redress against “trolls”, as they are now colloquially described, who perhaps have 15 followers? The action taken against them for some scurrilous remarks they might have made could itself bring more attention to those remarks.
Ian Paisley
As with all these matters, it is a question of balance. Those 15 followers could be influential individuals who are hiding under their anonymity—perhaps they are journalists—and could use their standing and anonymity in different ways, so that has to be addressed. We must consider the balance of who the 15 individuals in the hon. Gentleman’s example are, because there could be abuse of other individuals through the internet system. Indeed, in the example I cited earlier only nine people saw the photograph, but it was so damaging for the person concerned that, in my view, the person responsible deserves to be severely punished. It is not necessarily the quantity that we need to look at, but the quality.
I want to look at the issue of anonymity in relation to clause 5. Currently, websites operate with impunity. I do not know whether the proposed change will prevent that abuse of the internet. If someone is able to hide away and become anonymous so that the internet operator is unable to find them, I do not believe that the operator should have an excuse. We need to be very careful about making sure that website operators take control of what is said on blogs and the other things that appear on websites. I should declare that I once sued the BBC for a comment that appeared on a blog—successfully, I might add. We need to ensure that someone operating a website recognises that the buck stops with them if they are going to mediate these comments. I am yet to be convinced that clause 5 will have a significant effect on the abuse that can follow.
Dr Huppert
The hon. Gentleman suggests that websites can currently act with impunity, but does he recognise that a huge number of sites, whether Mumsnet or almost any other, face a constant deluge of unfounded claims, which they simply do not have the resources to defend, so they are forced to take down things that may not be defamatory in any way, shape or form? Does he think that that is appropriate?
Ian Paisley
Again, it is a question of balance, but I would far rather such sites were more defensive of their own reputation and standing than they allowed something to slip through which damaged, lied about or hurt someone in an unfounded or unfair way. I understand that there are huge difficulties, but, if someone is going to set themselves up as a website operator in the 21st century, in the new media, they have to take responsibility for their actions. That is the responsibility that should fall to people and make them consider what they do. Members of my party will support the general thrust of this change to the defamation laws, but we are yet to be convinced on some points, which we look forward to being thrashed out in more detail in another place.
Mr Robert Buckland (South Swindon) (Con)
It is a pleasure to take part in this Second Reading debate about a Bill that has been long and careful in the making, and I pay particular tribute to the pre-legislative scrutiny process that has been used. There is an increasing tendency in this Parliament to use that mechanism, which I welcome, because it gives not just parliamentarians but interested members of the public and experts outside the House ample opportunity to have the fullest input into the development of important legislation.
In Public Bill Committees there are already sessions that allow for the giving and taking of evidence, but, admirable though they are, one is always left feeling that more time was needed, far too many things were left unsaid, far too many questions were left unasked and unanswered, and, however good the sessions were, more were needed.
The pre-legislative process allows for valuable time to be allocated, for more evidence to be submitted, for freer debate and discussion and for the Government to listen maturely, to reflect and to respond. It avoids the striking of false positions, the entrenchment of unsustainable positions and the to-ing and fro-ing that is sadly all too often associated with the passage of Bills through this House.
In this Session a number of other pieces of legislation will be subject to the procedure, and that is good and welcome, particularly in areas where consensus and a striking degree of cross-party co-operation, understanding and support are needed. In this area, where we are talking about the reputation of the individual versus the right to freedom of expression, it is essential that this House speaks as much as possible with one voice.
Amber Rudd (Hastings and Rye) (Con)
Does my hon. Friend agree that it is testament to the need for this Bill, and to the way in which it has been handled and prepared, that there is so much unity among Members and among parties on the need to do something and to address the issue urgently?
Mr Buckland
Very much so. As I said, the Bill has been long in the making—some would say, generations. The right hon. Member for Tooting (Sadiq Khan) reminded us that in the 160 years since the Common Law Procedure Act 1852 there have been only two subsequent pieces of legislation—pieces of legislation that have dealt with the law in a piecemeal way.
The Defamation Act 1996, as some who were Members when the measure was passed will recall, dealt with a particular context and a particular case. A former Member, Neil Hamilton, found that his case was stayed by the court because it was felt that the defendant newspaper could not prepare its defence adequately without infringing parliamentary privilege. That resulted in section 13 of the 1996 Act, allowing a Member of either this House or the other place to waive for the purposes of the defamation proceedings
“the protection of any enactment or rule of law which prevents proceedings in Parliament being impeached or questioned in any court or place”—
parliamentary privilege.
At the time, I was a little uncertain about the passage of that provision, which seemed to represent yet another piecemeal approach to a fundamental right that has been exercised ever since article 9 of the Bill of Rights of 1689—parliamentary privilege. Another Committee of this House has considered parliamentary privilege carefully, and there may well be legislation to deal with it. In doing so, I would urge the utmost caution. Reform and refinement of such a basic and well-understood principle could lead to further confusion and potential court interference. It is essential that all of us in this place and in the House of Lords understand that changes to parliamentary privilege, whether in the context of the 1996 Act or subsequent proposals, could lead to the erosion of that privilege, which would be a regrettable and undesirable outcome.
In my view, section 13 of the Act should be repealed, and we should consider instead a more general right of waiver that not only would apply to defamation but to a range of court actions in which Members of Parliament or Members of the House of Lords may become involved. This Bill could have taken that step, but I quite understand Ministers’ desire to get on with the job in hand and to avoid being potentially sidetracked by questions of privilege that may have to be returned to.
Michael Ellis
Does my hon. Friend recognise that Her Majesty’s Government intend to work on a Green Paper that will deal in a lot more detail with parliamentary privilege, and that by separating the issue and giving it the advanced status of its own Green Paper and potentially a separate Bill, they are showing that they are giving it a high priority?
Mr Buckland
My hon. Friend is right to outline, in a better way than I could, the intended progress of any reform to the law of privilege. However, I reiterate that we tamper with article 9 at our peril and should listen carefully to those who urge caution.
I raise this issue to illustrate the piecemeal way in which defamation law has been dealt with. We have let the courts, in their wisdom, develop common law, and that has happened in what many of us would regard as an acceptable way that reflects evolving views about reputational damage but is fundamentally not as directly accountable to the people we serve as it should be. That is why introducing primary legislation of this nature is the right and just thing to do. It shows the people of this country that Parliament is prepared to take a lead on an important issue such as defamation.
Neil Carmichael
My hon. Friend is making a good point in connection with the whole basis of the Bill. One of the dangers that we can enter into is to talk too much about technologies and systems, which will move on, change and develop as we go along. I hope he agrees that we need not necessarily just common law but primary legislation that will give us a sound legal footing to deal with defamation.
Mr Buckland
My hon. Friend is right. However, we must always bear in mind the ineluctable fact that primary legislation, however useful it is, can often be seen as setting in stone, or setting in a particular moment in time, the law as it then stood. Because of the inevitable pressures in this place of the other priorities that we have to deal with, there is a danger that legislation does not keep pace with change and is not as flexible as judge-led law.
Helen Goodman
Surely the point made by the hon. Member for Stroud (Neil Carmichael) was that if we have the right architecture in the legislation, we can change the secondary legislation in a more flexible way as technology changes. I think that we can deal with technological development and that we should not be so nervous about it.
Mr Buckland
There is always tension in the minds of parliamentarians between wanting, quite naturally, to see as much detail as possible in primary legislation, because not only is that an accountable and democratic way of dealing with things, but it allows for full and fair debate, and the need to allow for flexibility through the use of secondary legislation. The hon. Lady’s point is an important one. Often in this place, in our enthusiasm to make primary legislation as prescriptive as possible, we fall foul of the danger that I highlighted just before her intervention.
The evolution of the law of reputational damage is interesting to note. In the 19th century, damage to reputation was seen as a very significant factor indeed. Reputation was seen as part of the property of an individual and something to be highly valued. It is interesting to note that at that time, when the privacy of the rich and powerful was easily protected—much more easily than it is now—the only windows into the private lives of the rich and influential were trials for libel. The evidence would be heard, sometimes by a shocked jury. Notable members of society would be brought to court to give evidence. The Prince of Wales gave evidence in a trial in the 1890s during the famous baccarat scandal. That arose from a libel action.
We have a somewhat romanticised view of libel, which stems to a large degree from the Oscar Wilde trials. It is important to remember that the first trial involving Oscar Wilde was the prosecution for criminal libel of the Marquess of Queensberry. It was not a civil case, but a criminal one. Through what would be regarded, on any objective analysis, as the clever advocacy of Sir Edward Carson, that criminal prosecution failed and, famously, the tables were turned on Oscar Wilde. We all have views about the injustice that was meted out upon that gifted poet and author. His words echo down the years and are a reproach to a generation that sought to criminalise the acts that were the subject of those trials. Those trials have contributed to the romance that surrounds libel trials and the involvement of juries.
That is why, although the interventions on my right hon. and learned Friend the Lord Chancellor about the right to trial by jury were interesting, I believe that clause 11 is an overdue measure that reflects the reality of the modern situation when it comes to civil libel trials in England and Wales.
Amber Rudd
What can my hon. Friend say to reassure us that the noble and proud tradition of trial by jury, which is held so much to heart by British people, will not be lost through this proposal?
Mr Buckland
I am grateful for that question. I think that we can reassure ourselves and the people whom we serve by saying the following: when the liberty of the individual and the criminal law are involved, the right to trial by jury should be preserved and enhanced. That is why I was pleased by the provision in the recently enacted Protection of Freedoms Act 2012 that rolled back restrictions on the right to trial by jury in criminal fraud trials. However, we are dealing here with the civil context. If damage to reputation is so important as to merit trial by jury, why is not physical personal injury equally worthy of it? There is a utilitarian argument that demands a system using scant resources and taking scant time, which means that we should be very cautious about extending jury trials to a whole range of civil cases.
I believe that the removal of libel cases from the right to trial by jury leaves us with only malicious prosecution, false imprisonment and a limited number of other civil cases in which one can argue that there is a legitimate public interest in still involving juries in making decisions about the acts or omissions of public authorities. Malicious prosecution cases could involve an act of a prosecuting authority, and we should bear in mind the power that such an authority has vis-à-vis the individual. False imprisonment cases may involve the acts of police officers or a police force in unjustly imprisoning an individual.
Neil Carmichael
The question of trials with juries is interesting, because it is about whether a judge is the right person to define and decide what constitutes defamation. He is likely to reach a swifter decision than in a jury process. Surely the quicker that cases about people’s reputation are resolved, the better.
Mr Buckland
My hon. Friend is right, and one has to draw a distinction between matters of law, which are always the province of a judge irrespective of whether a jury is involved, and matters of fact. The Lord Chancellor made the point that there may well be cases in which there are classic conflicts of account between individual witnesses. Such cases may require the shrewd judgment of a randomly selected jury of members of the public, who use their experience of the world and their good sense to judge whether, on the balance of probabilities, the claimant’s case is made.
Michael Ellis
My hon. Friend is conscious of the fact that the Bill envisages not removing the right of jury trial in defamation actions but simply lessening the presumption that jury trials will take place. It will be for the judge to decide. Does he believe that judges are likely to decide on jury trials very frequently? What criteria does he think a judge might use, or what common law does he think might evolve, for deciding on the use of jury trials?
Mr Buckland
The Bill is silent on that. Clause 11 merely amends the relevant parts of the Senior Courts Act 1981 and the County Courts Act 1984, which allow a trial by jury unless the trial requires prolonged examination of documents and so on. The practice could develop in secondary legislation, but I doubt whether that would be seen as an appropriate mechanism to guide judges. I rather think that it will evolve as a matter of judicial discretion. I would be cautious about supporting secondary legislation that sought to prescribe the circumstances in which a jury trial ought to be ordered.
The point that my hon. Friend the Member for Stroud (Neil Carmichael) made about streamlining procedures is important. As the Joint Committee on the draft Bill pointed out, whether or not there are jury trials, there has to be proper reference to alternative dispute resolution methods such as mediation and neutral evaluation by a third party—all the mechanisms that serve to deliver justice and the redress of grievance not just to the millionaire in his Belgravia townhouse but to Mrs Trellis of 22 Acacia grove, who does not have the means to spend a lot of money on expensive litigation but who has been the victim of a wrong that needs to be corrected.
Paul Farrelly
Does the hon. Gentleman agree that because we need speed, which reduces costs, and because we need streamlined procedures and better case management, it would be useful to adopt the draft changes to the civil procedure rules that the Joint Committee recommended? They would give effect to the changes proposed in the Bill and could be amended further as the Bill progresses.
Mr Buckland
Such changes to the civil procedure rules could, and I think should, take place. They would not affect the passage of this primary legislation, so they would not require amendments to the Bill, but I agree with the hon. Gentleman’s point about the need for minds to be concentrated so that the Joint Committee’s noble aspirations can be translated into reality. That point is well made and entirely relevant in the context of the Leveson process. If Leveson achieves nothing else, I want it to provide a mechanism by which the ordinary person in the street can obtain redress of grievance with the minimum cost and at the maximum speed.
Before I was slightly diverted by interventions, I was making a point about the changing context of libel. In the 19th century, the only window into the private lives of the rich and famous was often through the device of the libel trial. How the world has changed. We live in a world in which we have an open door into celebrities’ private lives for the instant gratification of millions of readers, in many cases by the choice of the celebrity concerned. For many celebrities, that is a means by which they make a living. I do not seek to make any pejorative comment about that, but it is a simple fact of modern life.
Not only does the risk to reputation continue to be important, but joined with it is intrusion into people’s private lives. The two issues are different, and I accept that privacy cases are not about correcting falsehoods, as defamation proceedings are. However, they become inextricably linked in many ways when we examine the issues that characterise the debate in both scenarios.
I was part of the Joint Committee on Privacy and Injunctions, along with the hon. Member for Newcastle-under-Lyme (Paul Farrelly) and others. We were grateful to have among our number the noble Lord Mawhinney, who chaired the Joint Committee on the draft Bill, and his input was invaluable in informing us speedily of the progress and deliberations of the latter. The outcome of the investigation by the Joint Committee on Privacy and Injunctions was somewhat less co-ordinated than that of the Joint Committee on the draft Bill. There were a number of views and a multiplicity of divisions, but at the end of the process I believe that our contribution to the debate about privacy was important. We characterised some of the issues that have been raised today.
The hon. Member for North Antrim (Ian Paisley), who is not in his place now, made remarks about changing and codifying the law. I would not go so far as to support his assertion that we need statutory regulation of the press, but I thoroughly agree with his observation that now is the time for Parliament to take a lead on codifying the law of privacy. Indeed, I put that proposal to the Joint Committee on Privacy and Injunctions at the end of its deliberations. I was not successful in persuading the majority of members of its merits, but I make no apology for returning to the subject today. I believe not only that the law of defamation should be codified, as it is in this welcome Bill, but that Parliament should take a lead and do likewise to the law of privacy. We should bring together data protection legislation and all the other areas of legislation that deal with intrusion into individuals’ private lives.
Neil Carmichael
I am grateful to my hon. Friend for giving way for the third or fourth time. I want to talk about an important aspect of the Bill—
Madam Deputy Speaker (Dawn Primarolo)
Order. The hon. Gentleman may have read the conventions of the House, which have been re-circulated. An intervention is on a point relevant to the one that the speaker who holds the floor has just made, not a list of abstract points that the hon. Gentleman might want to make. His intervention should be relevant to the point that Mr Buckland has just made.
Neil Carmichael
Thank you, Madam Deputy Speaker. I apologise. The point I was going to make—it is relevant—is that the Bill is not just about defamation and privacy, but about protecting freedom of speech. Does my hon. Friend agree that that must be considered in the debate?
Mr Buckland
I shall not disagree, because my hon. Friend supports my point that, in many ways, privacy and defamation are inextricably linked.
I made the point about support for codification of the law on privacy because I believe in Parliament. I come from a legal background and have spent many years dealing with cases in the courts of this land, but I believe it is incumbent on legislators to take a lead and to represent the people of this country by saying, “The law needs updating. It needs to be brought into the 21st century and it needs to reflect the reality of life.” On a daily basis, individuals—famous, infamous or obscure—find that their fundamental rights to privacy are being interfered with, intruded upon and trampled over, not just by an over-mighty press, but by individuals who use social networking tools and the internet, as we have heard.
Amber Rudd
Does my hon. Friend agree that the Bill will help to protect the privacy of Mrs Trellis of Acacia road, to whom he rightly referred? Does not the Bill partly cover such issues?
Mr Buckland
There is an element of crossover, but the Bill does not go far enough in addressing fundamental issues of privacy. Some provisions of the Human Rights Act 1998 give a nod to the law on privacy, but the Act comes to a rather inelegant conclusion by allowing freedom of expression to have a greater priority over the right to privacy. I defend to the death the freedom of expression—that is why I came to Parliament, thanks to the good grace of the people of my constituency, who have given me this opportunity—but we must get the balance right. The Act does not faithfully reflect the reality of human rights: there is no hierarchy of rights, and each right must be balanced against others. Certain rights are unqualified, but most rights have qualifications. There is no hierarchy of public rights—
Madam Deputy Speaker (Dawn Primarolo)
Order. This is a very long nod to human rights. Perhaps the hon. Gentleman can come back to the Bill.
Mr Buckland
I was trying to illustrate the point by saying that there is a fine balance to be struck between freedom of expression and the rights of individuals to protect not only their privacy, but their reputation.
It has been said that reputation is a question of taste, but it is also a question of approach. Some take a very relaxed approach to attacks on their reputation. For example, when in his old age the Duke of Wellington heard about a book that was to be published about his private life, he famously said: “Publish and be damned.” That might well have been because he realised that most of the allegations in the book were true—I can say that only because the noble duke is long gone. Some take Groucho Marxs’s attitude. To Confidential, the infamous magazine published in the US from the ’50s onwards, he wrote:
“If you don’t stop printing scandalous articles about me, I’ll be forced to cancel my subscription.”
Sometimes, however, when there is no alternative, the only reasonable response to defamatory or libellous representations is for the individual to seek legal advice and to take action. That very much depends on the individual, the circumstances and the context. The Bill addresses, as well as primary legislation can, the nuances and the infinite range of contexts within which libel and defamation actions can be brought.
On alternative dispute resolution, to which many hon. Members have referred, no matter what we do to reform the law, the question of the cost of the legal procedure will remain. Like the Ritz, the law remains open to all, to adapt a well-worn phrase. The Jackson reforms were much criticised in the context of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, but they will not serve to change significantly access to justice in libel cases. Legal firms seeking to build their reputation will always be interested in taking the cases of well known individuals who have had their reputations besmirched, such is the way of practice.
Guy Opperman
Does my hon. Friend agree that the practice of libel is such that a potential claimant will be massively dissuaded from seeking to bring an action without some degree of cover for the costs they could incur? Does he also agree that the way out of that situation is to institute protective costs orders for actions brought in the public interest?
Mr Buckland
I am grateful to my hon. Friend for his constructive suggestion on what—I concede—is a problem. Jackson has recommended an uplift in damages to help to deal with the non-recoverability of after-the-event insurance and success fees. I accept that that will not be enough in some cases to deal with the loss to the individual that the recouping of costs and the plaintiff’s damages will mean. That is why alternatives such as the one he suggests have great merit. I would like to think that we will see a more sophisticated development, such as a before-the-event insurance market. Perhaps a person who becomes a celebrity or goes into public life could gain an advantage by taking out before-the-event insurance, but I accept that we are in the early days of such a market, if one can exist.
On the public interest defence in clause 4, I support the understandable reluctance of the Joint Committee on the draft Bill and the Government to seek to define the term in law. The Joint Committee on Privacy and Injunctions found that what “public interest” means evolves from year to year and from case to case. It is far better to leave the term to be defined according to the case in which it is invoked.
The question of determining whether the defendant has acted responsibly in the public interest is dealt with in the Bill; the Bill suggests that the court may have regard to a non-exhaustive list of factors. My right hon. and learned Friend the Lord Chancellor dealt with that in his speech, but in my intervention on him, I highlighted the danger of such a list becoming a set of hurdles over which defendants would have to jump before establishing their defence. My view is that if the Bill contained a catch-all consideration—namely, a provision that allowed the court to consider all the circumstances of the case—the danger of that non-exhaustive list becoming a set of hoops through which defendants had to jump would be adequately addressed. With that caveat, therefore, I support clause 4.
Much has been said about the internet. I do not need to rehearse those arguments, so I will turn instead to clause 12, an interesting clause that gives the courts the power to order publication of the summary of a judgment made in a defamation case. That is a welcome change, which is a reflection of the public interest not only in allowing damages to be claimed by people whose reputations have been unjustifiably besmirched, but in obtaining proper restitution for that individual—in other words, in restoring, as much as possible, the reputation of the person aggrieved to its previous state. However—coming back to dear old Mrs Trellis—let us face it: that is what the object of the law should be all about. It is not just a question of damages; sometimes—I would say in most cases—damages should be a secondary consideration. It is all about trying to restore the wronged reputation of the individual concerned, although in privacy cases, once the secret has been brought out into the public domain, it is impossible to put the cat back into the bag, so to speak. Nevertheless, the question of intrusion remains and, in that context, there can be proper redress of grievance for the individual concerned. Once again, the two issues come together in an inevitable way.
This Bill is the product of much careful consideration. It is the better for it, which is why I am happy to support it on Second Reading. I commend the Bill to the House.
Mr David Lammy (Tottenham) (Lab)
I am grateful for the opportunity to speak in this debate, following the small role that I played on the Joint Committee of both Houses that looked into this issue. I begin by paying tribute to the noble Lord Lester, who made a considerable contribution to this debate, and the noble Lord Mawhinney, who chaired the Committee successfully and kept our views together. We were able to produce a good report.
I want to return to some of the issues that have been left out of the Bill that is before the House, but I should begin by saying that we had a lot of debate on whether there was a need to codify the common law as it has existed on defamation. That was right and appropriate, because we should not pretend that somehow, just because we have a Bill—a Bill that looks like it has the broad support of the House, and most likely the other place too—the job will be done once it has passed through both places and the process is complete. Of course, the job will not be done. Putting the common law on a statutory footing will make it subject to much interpretation by the courts. Certain areas—in particular, serious harm and justification—will need a lot of teasing out over the months and years ahead. Therefore, the degree of certainty that we might think is contained in the legislation will probably not be in place for some time.
Nevertheless, it is right to codify this area of law at this time, if only so that ordinary citizens who are not in public life—those who are not celebrities and are not famous—who find their reputations tarnished or damaged can, as a result of what we are doing today, at least go to a piece of paper and determine for themselves what the law looks like in Britain, without having to rely on costly lawyers to interpret several different cases in order to determine whether they have any kind of claim. That must be a good thing for the general public as a whole.
This is a careful balance, and it is important absolutely to underline the freedom of expression that must cut to the heart of a democratic and civilised country. However, it is also right to say that we are living in an age in which our liberalisms need to be fully scrutinised—an age in which it is possible to be very conscious of our rights to say what we want, but not terribly conscious of our responsibility in exercising those rights. It is into that juncture that this Bill falls. We are also, I might add, living in age in which we see the results of excessive economic liberalism. We have therefore also seen companies, corporations and oligarchs use this area of law to exercise a lot of control, it seems to me, in the other direction. I want to come to that later.
We should scrutinise very carefully—and put that scrutiny on the record in Hansard—the serious harm test. It is probably more straightforward for someone in public life or a celebrity to demonstrate and explain what serious harm is to their reputation, which will have been built up and is in the public domain. However, I am concerned that the hurdle should not be so high for the average, ordinary member of the public that they have to establish the same calibre of serious harm. We ought to remember that most cases concern ordinary folk who feel defamed by, for instance, their local newspaper or a website whose focus is confined to a local area. We are talking about someone who runs a small business whose products are tarnished in public. We are talking about two partners—about an older woman, for instance, who falls in love with a younger man and lives in a village, and where things are said about the extent of that relationship. Such cases may feel parochial, but to the individuals involved they can feel major. In that sense, we need to ensure that the serious harm test is not set so high that the ordinary person trying to overcome the damage that has been done to them cannot get access to the justice they feel they deserve. I therefore hope that we see some debate in Committee, as well as on Report and in the other place, about what constitutes serious harm.
There has been a rush to push jury trial out of the door to save us money, but it is important to put on the record the fact that the public who serve on juries, and who rely on this important area of our law, are not responsible, on the whole, for those costs. They have largely been driven up by law firms, lawyers and barristers. We are now embarking on a process of no longer having a presumption of jury trial in this area of law, which is a major departure. Broadly, the decision was debated a lot in the Joint Committee, and I will go along with it. However, in an age of austerity, when we are all concerned about finances, I do not want the departure of jury trials to start creeping into the criminal law or for the argument to be extended to what must be the bedrock of our democracy. We must bear in mind that it is not the public who have driven up the costs. We should have heard more on this matter from the Secretary of State, and I hope that we will hear more at the end of the debate or in Committee about the circumstances in which jury trials will be retained. For example, if a High court judge were defamed, would we expect a jury to be retained in that case, given the presumption that it might be inappropriate to ask another judge to adjudicate in those circumstances? The Government need to set out the circumstances in which they think it appropriate to retain juries in these cases, given that reputation is a matter of public interest.
The gaping hole in the Bill, which Lord Lester examined thoroughly and which the Joint Committee debated, is the way in which it relates to corporations and companies. I am convinced that the Bill should act to limit some of the excessive powers of companies and corporations that often use these means to terrorise publications into not getting underneath the truth of what is going on in those companies. I am not convinced that a corporation or big business company is the same as an individual, or that the reputation of such institutions is the same as that of an individual. I certainly believe that, if we are to allow companies and corporations to use defamation law in this way, we ought at least to ask them to establish that they have suffered substantial financial loss, as was set out in the original Bill proposed by Lord Lester.
Paul Farrelly
I agree with my right hon. Friend on that point. Does he agree that equality of arms is one of the main issues in regard to the law of libel, and that there are remedies available to judges in the Defamation Act 1996 that have not been used effectively to achieve the early resolution of libel cases in order to avoid the inequality of arms being fully brought to bear in such cases, particularly those against investigative newspapers?
Mr Lammy
My hon. Friend is absolutely right to mention alternative dispute resolution in this regard. He will be aware that the Bill as it stands would not alter the situation that Dr Simon Singh found himself in, in the case involving the British Chiropractic Association. That should be a matter of concern to the House, and it demands debate and discussion in Committee. He will also be aware of the case of Ben Goldacre, a doctor and health writer, that of the cardiologist, Peter Wilmshurst, and that of Hardeep Singh, a journalist writing on Sikh issues. It is not entirely clear from those cases—although we have codified this area of the law, tidied up the justifications and raised the bar quite appropriately—that the position of the oligarch or corporation to challenge the idea of a balance of equity has been dealt with. The matter has been sidelined in the Bill; it has been forgotten about and we will probably not get the opportunity to return to it for some time. That is the biggest area of concern.
Paul Farrelly
The case of Simon Singh is a poignant one. Does my right hon. Friend agree that, in relation to that case, it was a quirk of the British legal system that allowed the British Chiropractic Association to sue in the first place? It could do so because it was an incorporated body, yet unincorporated bodies could not sue in their own name and would have had to leave it to individual members to bring a defamation case if they felt that they had been defamed individually.
Mr Lammy
That is a good point. It makes me think that, if we are unable to deal with the issue in this Bill, we might be able to return to it in the form of amendments to another Bill that is passing through the House. This is an important area, and it requires further scrutiny.
It is unfortunate that the Bill does not make a greater attempt to enable more alternative dispute resolution. Such practices are essential in relation to costs. What do most people want, when it has been established that they have been defamed? Most of them are not after lots of money; they simply want an apology that is visible and can be well seen. They want to establish negotiations, early on, and to come to an agreement through co-operation. It is a missed opportunity not to do more in the Bill to force people down that road, so that they can come together far earlier and avoid the costs that build up later. That is why I am concerned that everything is blamed on the jury; actually, there are other mechanisms available to reduce costs.
In the Joint Committee, we talked extensively about the level of exposure, in a civilised country, that we should expect the defamer—often a newspaper—to give to the apology that it makes, once it has been established that someone has been defamed. I am concerned that, when such apologies are published, particularly to members of the public, they occupy only the tiniest column space, lost in a wealth of other words. They are given nothing like the prominence of the original story that caused the harm.
Zac Goldsmith
Clause 12 goes some way to addressing that issue, in that it provides the court with the power to order a summary of its judgment to be published. Does the right hon. Gentleman agree that that clause could be strengthened if the issue of due prominence were to be included?
Mr Lammy
The hon. Gentleman makes that point well. This is about the prominence given to the decision, and the fact that it is often nothing like as prominent as the original story. I do not think that the Bill has cracked that problem, but I hope that, as it passes through the Committee and goes to the other place, the matter will receive further scrutiny.
Much has been said about the internet, and I shall not add to it except to say that I am truly concerned about the position of young people, and young adults, in this regard. Many of us will be aware of Facebook bullying, for example, and I remain concerned that much of what is said about young people and young adults in such forums remains out there. The ability to fail, to make mistakes and to grow up in a private arena seems to have disappeared from our society. All of that now seems to be done in public. A lot of what used to be said by young people in the pub at the age of 17 or 18 would just disappear. Now, nothing disappears. It is visible for all to see. Many of us might have exercised this when employing a researcher. It is all there, and that is a matter of huge concern. Kicking this matter into secondary legislation is a concern, because it merits hard discussion. This relates to some of the issues being raised in Leveson, and those being raised in relation to privacy. The Joint Committee conducted its deliberations against the backdrop of super-injunctions and the issues that had arisen on the Twitter network just a few months ago.
The Bill is obviously needed, and it is good, but there are elements missing. Those elements were highlighted in the work of the Joint Committee and of Lord Lester, and I hope that they will garner greater scrutiny in the weeks and months ahead.
Stephen Phillips (Sleaford and North Hykeham) (Con)
Thank you, Mr Deputy Speaker and hon. Members on both sides of the House for that very warm welcome.
I rise to speak, having had the enormous privilege of sitting among significantly more distinguished colleagues from this House, including the right hon. Member for Tottenham (Mr Lammy), and indeed from the other place, on the Joint Committee that considered this Bill when it was subjected to pre-legislative scrutiny during the last Session. Let me indicate from the outset in a non-controversial way that the Bill enjoys my support as it enjoys the support of the official Opposition and of all parties.
Like other hon. Members, I have little doubt that the Bill is capable of being improved in Committee, where it will no doubt be debated appropriately, properly and, I hope, at length, particularly in respect of certain Joint Committee recommendations that the Government have not adopted. As it stands, the Bill supplies some, if not all, the certainty required regarding the deficiencies in our libel and slander law previously identified by the noble Lord Lester and others. For that reason, if for no other, I welcome the Bill’s support across the House, as I welcome the Opposition’s decision not to divide the House on the Second Reading of a Bill that evidently does and certainly should enjoy cross-party support.
This Bill is perhaps not the most eye-catching piece of legislation in this Session and perhaps not even the most eye-catching piece of reform in the arena of the ongoing debate on the balance that needs to be struck between free speech on the one hand and other fundamental rights on the other. For reasons that I will attempt to explain in the course of my remarks, it is none the less important.
Let me begin with the problems—not merely those inherent in the existing law, but those of a more fundamental nature concerning any law that seeks to address defamation, whether in this jurisdiction or elsewhere. The first of those problems is naturally the fact that the mere existence of a law of defamation is an intrusion into the area of free speech. Not one Member of this House can possibly begin to doubt the importance of free speech both as a principle of general application in any mature society and, more important, for the health of our democracy and our democratic institutions.
The powerful need to be held to account. They need to be answerable to those in whose name they seek to exercise power. They need to be exposed to hypocrisy or inconsistency, where necessary. Most certainly, as we all know they need to have the balloon of pomposity associated with their position punctured from time to time, perhaps even frequently, and without remorse. That is the nature of free speech. As I say, surely no one can doubt its importance.
But there are other important rights that need to be addressed in a civilised society—even if, on this point at least, I disagree with my hon. Friend the Member for South Swindon (Mr Buckland) that there is no hierarchy of rights and that there ought not to be. The right to a true reputation is particularly important to well-being, given the importance attributed to character in human affairs. The right of those who have not opened up their private lives to scrutiny to keep their affairs private is equally important. That is a right that used more ordinarily to be respected without the need for intervention of the law, but recent events and recent experiences point to those in the media no longer being able to respect that without appropriate restraints. Finally, there is a right not much talked about thus far in our debate—the right to redress, speedily and efficiently, when either of the rights I have already mentioned is dealt a blow from which in an age of immediate global communication neither may recover unless effective solutions to set the record straight are also available.
What the Bill is designed to achieve, as the preamble tells us, is to amend the law of defamation. In so doing, I understand it to be the Government’s aim—it was certainly the aim of the Joint Committee on which I sat—not only to balance the competing rights to which I have drawn attention, but to bring the law more into line with the world in which we now live. In that regard, the potent mechanism of the common law, able as it is to develop and deal with new situations, is not always enough. Occasionally, as in this area, development can run behind the times because of the lengthy processes associated with litigation and as a result of the disincentive afforded by cost to litigants who find themselves in novel situations. When that happens, it is for Parliament to act, triggered where appropriate by a Government’s legislative programme. That is necessary because it is not always the case that we can outsource the change that the common law might deliver, which would require litigants to dip into their own pockets to seek the intervention of the courts to adapt the law to their needs.
That, as I perceive it, is the position in which we find ourselves in relation to the law of defamation. The genuine and general support that Lord Lester’s Bill enjoyed both within and without Parliament demonstrated precisely that. Lord Lester and those who assisted him are to be commended for their initial efforts in this area in the last Parliament, even if they did not bear fruit. This Government, I have to say, are to be commended for having taken forward that work, having established a distinguished Committee—personal exceptions apart—to consider the matter, and having now brought forward appropriate legislation to address the issues in an area that is, as I have already indicated, unlikely perhaps to attract either headlines or even much credit.
Amber Rudd
We have heard much about this Committee and its various members, including my hon. and learned Friend. Is it correct that the Committee was unified on most of these points? It appears that the House is unified on the Bill, but did the Committee find itself unified on its key points?
Stephen Phillips
I am extremely grateful to my hon. Friend for her intervention. My recollection—it is only that—is that the Committee was unanimous on almost all points. I think there was one division—and one only—on the final report; I see my hon. Friend the Member for Cambridge (Dr Huppert) nodding. Unlike with the Joint Committee on Privacy and Injunctions, on which my hon. Friend the Member for South Swindon sat, there is considerably more cross-party agreement in this area.
The Bill of course comes at an interesting and even opportune time, as, indeed, we are all aware. A mile or so down the road—a little less far than the hon. Member for Bishop Auckland (Helen Goodman) suggested—Lord Justice Leveson is sitting in a far more high-profile environment, examining the culture, practices and ethics of the media. The legitimacy and desirability of what an untrammelled free press has recently been up to, for which we as politicians bear some measure of the blame, has rightly been called into question by recent events, which few can have viewed with anything other than horror and disgust.
As we have heard in this debate, another Joint Select Committee of this Parliament in the previous Session, on which my hon. Friend the Member for South Swindon sat, has now reported to both Houses on the subject of privacy and the use of injunctions. New technologies have thrown up new challenges in a number of areas. That they are being addressed piecemeal, although not entirely desirable, as hon. Members have indicated in their contributions, is understandable. That they are being addressed at all is a matter for congratulation, I venture to suggest, for all concerned. Where precisely we will find ourselves at the end of the process is no doubt a matter of debate, but the overall aim is clear: to preserve free speech while respecting other competing rights and the responsibilities that each of those rights entails. For my part, I merely add that this is unlikely to be the end of the process. As the report of the Joint Select Committee on which I sat indicated, there is still work to be done on the issue of parliamentary privilege, just as there remain loose ends to be tied up in relation to those parts of the common law of blasphemy and sedition which remain part of our law.
Thus far, I have dealt in generalities, but the greater raft of problems—at least in terms of number, if not seriousness—relates to the specific difficulties encountered with the mechanistic aspects of the law of defamation. The second issue with which it is necessary to grapple in any reform in this area is, therefore, the cost that is associated with defamation litigation and, when necessary, court proceedings. The evidence taken by the Committee demonstrated that those costs were prohibitive to the defence of reputation by the majority; but, even more important, they are inimical to free speech itself.
Few individuals, save perhaps the very brave such as Dr Ben Goldacre, have been prepared to put their lives and fortunes at stake and raise their right to express the truth above their own financial security and that of their families. As anyone who does not enjoy the luxury of parliamentary privilege is all too well aware, the powerful have deep pockets and frightening lawyers with heavy notepaper and even heavier language. The costs associated with defamation not only prevent ordinary people from defending reputations that are so easily damaged in an age in which anonymous posting online can wrongly create a rapist or a paedophile at the click of a mouse, but prevent public figures who lie, cheat and steal from being revealed for what they are.
How, one is driven to ask perhaps all too often—even if rhetorically—have the individuals who have been involved in many of the scandals that we have seen in the past got away with it for so long? The truth, frequently, is that they had, and continue to have, good lawyers who are adroit at putting those who might otherwise hold them to account through the preventive mills of cost and stress. Any reform of the law of defamation needs not only to take account of that, but to address cost at each and every turn. Yes, legitimate reputation is important in a civilised society, as is the prevention of false accusations which damage it; but such protections ought not to be purchased through prevention of the exposure of that which ought to be in the public domain, something which is perhaps all too often a result of the chilling effects associated with any defamation litigation. Indeed, as the Committee concluded in its report,
“the reduction in the extremely high costs of defamation proceedings is essential to limiting the chilling effect and making access to legal redress a possibility for the ordinary citizen.”
This is, none the less, an appropriate moment at which to pause and recognise a fact that—given the evidence taken by the Committee and the views of many commentators—may be obvious, at least to practitioners: the fact that the true problem with the costs associated with defamation proceedings is driven not by substantive rules but by procedure. Any significant reform to reduce cost is therefore not something that can be exclusively, or even primarily, driven by Parliament. As has been pointed out by Members on both sides of the House today, what we need are reforms of procedure to provide new and effective procedural mechanisms that will level the playing field as between those with deep pockets and those without them.
Much, in general terms, was achieved in that respect by the reforms of civil procedure for which we are eternally in the debt of Lord Woolf, but I should like the Minister to state categorically that the Government, in the person of the Lord Chancellor, will instruct the Civil Procedure Rule Committee—if, indeed, they have not already done so—to review the civil procedure rules relating to defamation proceedings, as well as the pre-action protocol, in an attempt specifically to strengthen the parts of the overriding objective that are directed to addressing the cost associated with litigation and the necessity of ensuring equality of arms between litigants.
The third difficulty, which both the Committee and the Government have sought to address, is one that I have already mentioned: the difficulty posed by technological and other advances. The last statutory intervention in that regard was made in 1996, under the Administration of Sir John Major, mention of whom is, perhaps, opportune today. Even I can remember vaguely what the world was like then, and it was different. For a start, there was no Human Rights Act—legislation on which, as many know, I have my own strong views, but which, in terms of general principle, has had a significant effect on the law of defamation by recognising privacy rights that have been used as a back door to circumvent free speech protections developed in the arena of defamation over centuries. That affords yet another reason why the 1996 Act is, at the very least—I put it neutrally in deference to my hon. Friends—problematic. We had human rights in this country before the Act was passed, but we did not recognise them in the way that we have now, which has enabled judge-made law in one area to trespass on the will of successive Parliaments and higher courts in others.
What is even more important in the present context, however, is the fact that when Parliament last considered this issue in 1996, the internet was in its infancy. Nothing was known of how matters would develop.
Heather Wheeler (South Derbyshire) (Con)
Given that technology is moving so fast, as others have pointed out, does my hon. and learned Friend think that, like anti-terrorism legislation, this legislation should be reviewed and renewed more often than annually?
Stephen Phillips
I should like to say that I am grateful to my hon. Friend, who has put me on the spot with a point that I do not think that the Government would like. I suspect that whatever legislation is in place, we will need to look at it from time to time to ensure that it correctly balances the right to free speech with the right to reputation in the light of the technological developments that will take place over time. How the Minister and his colleagues will want to do that, and whether it will be dealt with in the winding-up speech, is a matter for them. However, I see the force of the point that has been made by my hon. Friend and, indeed, other Members.
Mr Buckland
Might not a possible solution be for the Justice Committee to conduct some post-legislative scrutiny of the Act a couple of years down the line, as is currently happening with the Freedom of Information Act?
Stephen Phillips
What a fine idea. I am sure that my hon. Friend the Minister will be able to tell us whether that is the Government’s preferred solution—as, given the quality of my hon. Friend’s intervention, it may well be.
In 1996, Larry Page and Sergey Brin were still at Stanford university. They had met only the previous year, and Google was still two years away from being incorporated. For what it is worth, Mark Zuckerberg was 12 years old at the time. If any Members foresaw what the internet would do for the instantaneous communications that we now have, they were entirely silent in the debates that led to what became the Defamation Act 1996. I know that, because I have read the reports of those debates. We, however, are in a different position. We have the benefit of subsequent events, and—with the possible exception of my right hon. Friend the Member for Louth and Horncastle (Sir Peter Tapsell)—not one of us can now contemplate life without the technologies on which we rely for our daily existence. Perhaps it was ever thus with technological change, but, by the same token, change brings specific issues that must be addressed.
Chief among those issues here has been the ability not only to create defamatory material that is instantly accessible to millions of people with internet access, but to disseminate that material anonymously. Even this week, the common law has demonstrated the flexibility of existing mechanisms to assist those who are determined to protect themselves, but, as always, that has come at a cost. I believe that when Parliament intervenes in an area such as that addressed by the Bill, we must do what we can to help, and the Bill does that—although, like my hon. Friend the Member for Mid Bedfordshire (Nadine Dorries), I have not the slightest doubt that it is another area that we will have little option but to address again, certainly within the next decade, as user-driven change in internet and other technological architectures develops further.
The scale of the problems—the need to balance free speech against other competing rights, the need to address the costs associated with striking that balance correctly, and the need to deal with technological and other changes—is vast. In those circumstances it might well be thought that ambitious reform was called for, but, again, that sort of understandable reaction must be balanced with the caution that good legislators enjoy, and which has been the hallmark of the House from time immemorial. Too frequently, ambitious legislative change reveals itself not only to have unintended consequences, but to stultify the development of appropriate solutions by the courts to problems of which no one has yet dreamt. That point was made earlier by my hon. Friend the Member for South Swindon. Incremental change has been the hallmark of good legislation in this and other areas, and the Bill is rightly no exception. The Government are to be commended on that.
I want to deal with three specific aspects of the Bill: the provisions that seek to codify existing substantive law in a manner that is readily accessible and understandable to the layman, the provisions that deal with the defences for which free speech calls in a modern society, and the provisions that seek to bring reputational protection within the reach of those who have not the funds with which to instruct expensive lawyers.
As for the first—the attempted codification of parts of the existing common law as it has now developed, particularly in recent years—my colleagues who sat on the Joint Committee with me are aware that I and others, notably Lord Morris, had our reservations. The difficulty Parliament faces in this area is that our attempts to reduce the nuances of the common law to writing are on occasion ineffectual. The Marine Insurance Act 1906 was a codifying Act prepared by Sir Mackenzie Dalzell Chalmers when he was permanent under secretary at the Home Office. He was subsequently chief justice of Gibraltar. As the draftsman of both the Bills of Exchange Act 1882 and the Sale of Goods Act 1893, if anyone could achieve the codification of four centuries of common law, he was the man. Yet subsequent events tell us that he got things wrong, such as the test in relation to loss, which now differs between marine and non-marine insurance. Can he be criticised? No, but the experience teaches a valuable lesson: that codification is not always successful in reflecting either the existing law or its nuances or flexibility.
Attempted codification can, through drafting error, lead to uncertainty, change and stultification, all of which can lead to increased costs for litigants. However, I am persuaded that it is desirable in clauses 1 and 2—as well as in part of clause 3—only for two reasons: first, because the codification is modest in scope; and, secondly, because, as Lord Mawhinney, who chaired our proceedings, persuaded those of us who were sceptical about either the necessity or desirability of pursuing this path, if the protection of the law of defamation is to be made more accessible, it must be written down as simply as possible in a manner that most can understand. That point was made well by the right hon. Member for Tottenham. While I had reservations, therefore, I am now persuaded that these clauses have their rightful place in the Bill. Better and more erudite minds than mine will have addressed the question of whether or not they do what they are supposed to do. If they do not, it will not be for want of trying.
The second area I wish to discuss is the defences with which the Bill deals. One clause at least—clause 3—involves a slight amendment to the existing defence of fair or, as the Supreme Court seems to have taken upon itself to rename it, honest comment. We are now renaming “honest opinion”. It is my understanding that the change is minor—I would be grateful for confirmation of that from the Minister—and merely removes the necessity for it to be shown that the matter on which the opinion is expressed is in the public interest. If so, there seems to have been little justification for any such limitation in the first place. Any such limitation between public interest and private interest is unjustifiable and unprincipled.
That step is therefore to be welcomed, as is the new defence—in so far as it is a new defence—based upon, or clarifying, Reynolds v. Times Newspapers: responsible publication on a matter of public interest. That does much to clarify what would no doubt have been clarified by the common law in due course, but at vast expense and inconvenience to litigants and those defamed.
The third area on which I want to touch is those parts of the Bill that I perceive to be addressing substantive matters that affect cost and accessibility. Among those is the removal of the presumption of jury trial. In no other significant area of civil litigation has jury trial been retained, at least in practical terms, and the evidence that the Committee received appears to demonstrate that, even in the field of defamation, trials have increasingly been conducted before judges alone. However, the threat of jury trial—with the processes it involves and the reluctance of judges to intervene early to remove matters from a jury, with the consequent prolongation of litigation and considerable increase in cost—has long exacerbated the chilling effects of the existing law, and many of us are only just persuaded that it should even be possible to retain a discretion to permit a jury in a libel or slander case.
Paul Farrelly
I agree with what is being said. I have inquired into these matters for several years. The publishing industry and the newspapers have long pleaded for an early resolution of meaning, and the retention of juries is inimical to that. It plays into the hands of those litigants who have no interest in a resolution because their intention is to use force of money and arms to prolong the agony as long as possible.
Stephen Phillips
The hon. Gentleman makes a valid and compelling point, and I agree with him. I do not sit on civil cases, but I do still sit as a recorder for a few weeks each year. When judges know there is going to be a jury, they are reluctant to take anything away from the jury because it is supposed to be determining the factual issues. In order to reduce the costs associated with litigation, in most defamation cases there should be no jury, just as there is no longer a jury in other cases heard in the Queen’s bench division, whereas a century or so ago there was the discretion to order one, and, indeed, one was frequently ordered, with all the consequent increase in cost and delay.
The third area on which I want to touch is the one I consider to be the most important aspect of the Bill, clarifying or codifying as it may be: the requirement that in order to be actionable a statement must cause, or be likely to cause, serious harm to the reputation of the claimant. There is, of course, once again every indication that this is the direction in which the common law was moving in any event, but here, in an age when trivial statements are capable of being published immediately, we, as a Parliament, can give our sanction to this worthwhile development and enshrine it once and for all as part of our law. It will lead to fewer cases—certainly fewer trivial cases—being brought forward and therefore to a reduction in costs. It is consistent with the balance that I believe must be struck between free speech and the protection of reputation; it is consistent with the need to render the law accessible in a written form to ordinary individuals not versed in the intricacies of precedent; and it is consistent with enabling courts to act at an early stage in order actively to manage cases and to drive settlement and compromise in those which are serious and require early redress. Like the rest of this Bill, in my judgment—which I think the House shares—these provisions are to be welcomed. They deserve, and should command, our entire and full support.
Paul Farrelly (Newcastle-under-Lyme) (Lab)
First, I should declare my interests: I am chair of the all-party group on libel reform and a member of the Culture, Media and Sport Committee.
I hope there will be cross-party support for an improvement to our libel laws, and in keeping with that spirit I join other Members in congratulating the Secretary of State on making sure the Government have found time for this Bill, and in acknowledging the efforts of his ministerial colleagues, the hon. Member for Huntingdon (Mr Djanogly) and especially Lord McNally in the other place, greatly and expertly assisted by Lord Lester, who is a veteran of this campaign. Like the shadow Secretary of State, my right hon. Friend the Member for Tooting (Sadiq Khan), I am grateful that they so willingly took up the reins passed to them by my right hon. Friend the Member for Blackburn (Mr Straw), who is another true veteran of this place and who did so much in the last Parliament to pave the way for reform.
Clearly, no thanks would be complete without praising the efforts of the Libel Reform Campaign, which includes Index on Censorship, English PEN and Sense about Science. They came together in 2009 to lobby for a change, and they have lobbied very effectively both in terms of party manifestos and, importantly, through their organisation, which has served to amplify the voices of many of the victims of the excesses of our libel laws who were crying out for both help and change—people such as Simon Singh, Hardeep Singh Kohli and Dr Peter Wilmshurst. I shall refer briefly to some of those cases later, because one of the litmus tests of this Bill will be whether there will be any similar cases following its reforms. At each stage of the Bill’s passage we should ask ourselves, “What would this Bill change? What difference would it make to some of the worst excesses we have seen in recent years?”
As a former investigative journalist who was once sued myself—only once, I stress—I have been interested in libel reform since I entered the House in 2001, and I have certainly pushed the issue since joining the Select Committee in 2005. The Committee’s investigation into this subject started in earnest in 2008 and our 2010 report, “Press standards, privacy and libel”, contained several recommendations that have been pursued by both of the Governments since then and have, thankfully, found their way into this Bill.
Other people have been pressing for root-and-branch reform for much longer. Last autumn, I was privileged to sit down with one of the greats of British journalism, Sir Harry Evans. His investigation while he was the editor of The Sunday Times into the thalidomide scandal in the 1970s was a defining moment in the history of the quality end of the British press. It lasted six or more years in all and, in 1979, went all the way to a landmark European Court of Human Rights decision regarding free speech. As is recounted in Harry’s book, “Good Times, Bad Times”, Lord Lester was an advocate in that case. That affair showed this House in a great, independent light, because the then all-party group on disability, which was chaired by the much missed Lord Jack Ashley, the former Member for Stoke-on-Trent, South—a predecessor of my hon. Friend on the Front Bench, the Member for Stoke-on-Trent South (Robert Flello)—was right in the thick of the fight for justice regarding thalidomide.
As a spring chicken, I asked Harry, when I met him last autumn, whether he thought that serious investigation, given recent developments in libel laws and the state of our newspaper industry, would be harder nowadays. “Oh, easier, easier,” he replied, without a moment’s hesitation. “Nowadays,” spring chicken, he almost said, “you don’t have civil contempt.” Then, if there was civil action in the courts, as there was against the thalidomide drug company, investigation was off limits. After the European decision, the law was changed in 1982. Civil contempt, therefore, was out as a bar to investigation in the public interest, but our antiquated libel laws remain. In one sense, therefore, I had to disagree with Harry given my experience as a journalist. I stopped practising as a journalist in 2001, by which time, as previous speakers have said, Google had been founded in a Californian garage for fewer than three years. The change since then has been frantic and it now seems almost to have been around for a lifetime.
I remember that at the end of the 1990s, amid the upheaval of Yeltsin’s Russia, I was writing several investigative pieces about money laundering and the connections between Russian politicians, business and the Russian mafia, no less. In recent years, such investigations would have been harder to get past a news desk—certainly with every oligarch claiming a global reputation in this internet era, with aggressive libel firms touting their expertise in so-called “reputation management”, with London having been cemented as the libel tourist’s destination of choice and, frankly, with the sheer cost of defending an action. There might be a lull in the courts at the moment, given the effectiveness of the Libel Reform Campaign, but old habits and hostilities will surely return, given the chance, aided and abetted by how the court system has tended to operate in spinning out cases, spiralling up costs and spawning expensive uncertainty.
If the codification of existing law in this Bill adds to certainty, that will be worth while in itself, but if that is all it does it will be a real missed opportunity for deeper reform. Similarly, it will be a missed opportunity if changes to the law are not accompanied by resolute change to court practice and procedures and vigorously followed up and followed through.
Let me turn to what sensible reformers want from this Bill and this process. First, in the public interest, we would like the “chilling effect” to be properly addressed. A writ for libel requires no more than a rubber stamp, whereas to defend one, however trivial or vexatious it might be, takes precious time, effort and lawyers. As we have heard, lawyers and courts cost money—an awful lot of money in libel. Too often the system is weighted in favour of deep-pocketed claimants whose threats are an all-too-effective deterrent to investigation and publication in the public interest.
Secondly, and this is a corollary, we want to jettison London’s reputation as “A city named sue”. It tarnishes our country and our democracy. The situation is not overblown, as certain judges have suggested. One cannot measure the attraction and impact of our libel laws by the number of cases alone, but one can listen to the voices of publishers, non-governmental organisations, scientists, medics and academics in relation to what they will and will not publish, around the world, for fear of being sued in London.
Thirdly, as we have heard, there needs to be a proper balance between freedom of speech, especially in the public interest, and reputation. As the phone hacking scandal has once again shown, there is a world of difference between the quality press and the gutter press. There are responsible bloggers and evil people whom I understand are called trolls. Often, getting a simple correction or apology from the highest-minded newspaper is like pulling teeth. In the macho culture that has grown up, if one does not sue, newspapers often do not treat one seriously, but the costs of being taken seriously are ordinarily beyond most people. In the absence of real and proper reform, this will raise issues of access to justice.
Let me address the three issues I have raised in reverse order. On joining the Select Committee in 2005, I had a cast around Fleet street to gauge the appetite for a serious push on libel reform, but I found that the traditional concerns about libel had overwhelmingly been overtaken by consternation at the effects of conditional fee arrangements. CFAs had been introduced to improve access to the law, but had escalated the costs of defending claims enormously. Following the passage of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, the press has certainly had its way on CFAs, as neither success fees nor insurance premiums are recoverable from the loser, whether claimant or defendant.
Given the extremes of the press we have, I think—and I am a late convert to this view—that things have gone too far. The Government and the Bill must seriously address this issue. Our Select Committee’s 2010 report was prompted by a number of events, including Max Mosley’s privacy case, the libel pursued by Tesco against an old colleague of mine, Ian Griffiths at The Guardian—I shall refer to that case later—and, importantly, by the press’s disgraceful treatment of the family of Madeleine McCann. Following the settlement of the libel actions brought by the McCann family, a seminal article in the New Statesman by a former colleague of mine, Professor Brian Cathcart, entitled, “Scandal: How the Press Tried to Destroy the McCanns”, resonated with me as our Select Committee agreed to start our inquiry. As has been pointed out already, the McCanns would have been hard pressed to start their action or gain any settlement without CFAs. Similarly, without CFAs, people from the scientific and medical community would not have been able to defend themselves in some of the more recent, high-profile libel cases. Dr Peter Wilmshurst’s case is an example of that.
The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly)
May I make a short intervention in what is an excellent speech to point out that there are no proposals, certainly not within the Legal Aid, Sentencing and Punishment of Offenders Act, to get rid of CFAs?
Paul Farrelly
I thank the Minister for his intervention, but it is the cumulative effect of the changes in the Act on people’s access to justice that we really need to look at as this Bill proceeds through Parliament.
The reality is that press self-regulation in this country is broken, and the reforms in the Bill are as yet unproven. A sensible balance that addresses the issue of access to justice needs to be struck. I hope that that can be done in our proceedings on the Bill. If it is not, I think we will lurch back to the bad old days—I am a former journalist—with newspapers simply asking, “How much are they worth? Can they afford to sue?” They might also use the system, the costs and the delays to their advantage, having trashed reputations on the way.
Let me address briefly issues of libel tourism, forum shopping and this city called sue. I welcome clause 9 and, importantly, the guidance notes, which address this area specifically. The terminology regarding consideration of where is
“the most appropriate place in which to bring an action”
leaves great scope for judicial interpretation. The Government promise to ask the Civil Procedure Rule Committee to consider “relevant factors” in more detail in respect of amendments to the civil procedure rules, but as with all these issues court practice is key and the Government have not published, as the Joint Committee on the draft Defamation Bill recommended, the detail and nature of those rule changes. It is incumbent on them to do so in order for us to have greater clarity. I hope that during the Bill’s progression the Government will provide more detail and comfort on this crucial aspect of reform.
In May 2010, in the High Court, Mr Justice Eady threw out a libel suit brought by an Indian so-called holy man against the journalist Hardeep Singh Kohli over an article he had written in The Sikh Times. His holiness—to give him his title—had never set foot in Britain, but this was not the end of the matter; lawyers were given leave to appeal, and it took until February 2011 for the Court of Appeal finally to strike out the case—after his holiness had failed to produce a £250,000 surety for costs. By then, the case had been going on for nearly three years, at a potentially ruinous financial cost to Mr Singh, and had had a terrible impact on his health and family life. Thankfully, Mr Singh has just got married, and I am sure that we all wish him well after what he has been through. As a wedding present, surely we can give him a commitment to early resolution and the strike-out of inappropriate, trivial and vexatious claims. Members will want the Government to give them comfort on this matter during the passage of the Bill.
Ian Paisley
I appreciate the hon. Member’s point, but he must also accept that it does not take Johnny Foreigner to abuse the system. There are many cases brought by UK citizens against other UK citizens in which the process of law is used and contorted under extenuating and tortuous circumstances to the point reached in the case he cites.
Paul Farrelly
The hon. Gentleman is absolutely correct. The point about early strike-out and early resolution is a general one, and not simply applicable to libel tourism cases.
I turn now to the public interest, responsible journalism and the chilling effect of our libel laws and their cost. I welcome clause 1 on the test of serious harm and the hurdle that claimants have to clear, although I hear clearly the voices calling for it to be further stiffened and clarified, not least with respect to corporations. Clause 7, which extends qualified privilege, especially to fair and accurate reports of scientific conferences, is especially welcome, as is clause 6, where the Government have listened to the Joint Committee and extended protection to peer-reviewed articles in scientific and academic journals. There is concern about the chilling effects of our libel laws on the medical and scientific community, and Sense About Science should be congratulated on bringing these arguments to the fore after several particularly disturbing cases.
Dr Peter Wilmshurst has been mentioned in passing. He is a respected cardiologist at the Royal Shrewsbury hospital and my own hospital, the university hospital of North Staffordshire. In 2007, he was sued for libel by NMT Medical, a company based in Boston, Massachusetts, over a report carried by a specialist Canadian website about critical remarks he made of one of its medical devices at a US cardiology conference. He was sued here for defamation not once but four times over four years. Dr Wilmshurst, quite responsibly, had been involved in proper trials of the effectiveness of the device. In April 2011, the emperor finally ran out of clothes and NMT went out of business months after failing to post its own surety for costs. The case caused untold stress and worry to Dr Wilmshurst and his family and should never have been allowed to go on for so long. The Bill’s reforms ought to prevent such abuse of process, be it from overseas companies or anybody domiciled in this country.
Robert Flello (Stoke-on-Trent South) (Lab)
I am most grateful to my hon. Friend for his extremely thoughtful speech. It is worth putting on the record the fact that Dr Wilmshurst was determined to continue and not to retract because he was concerned that, if he did, people might suffer and even die, if a medical device was used that he felt was inappropriate.
Paul Farrelly
I agree with my hon. Friend. This case concerned comments made at an academic conference, and the Bill will avert such litigation, but that does not abstract from the general case of people acting in the public interest and being deliberately put through the mill to take them out of the game, to sully their reputation and to bog them down over a long time. Our court system really must address that as part and parcel of these reforms.
Clause 4 addresses responsible publication on matters of public interest. I welcome the clause, but again, as the Bill proceeds, the test will be whether it is a generally progressive reform that overcomes the deficiencies of the so-called Reynolds, or Jameel, defence, which it seeks to codify. That defence was only reasserted this March, in a rare case to reach the Supreme Court—the so-called Gary Flood ruling. As the Bill progresses, I hope that we will see whether the codification in the Bill matches the latest circumstances and developments in common law. The Reynolds defence was a defence of last resort for journalists. It was to be used when a newspaper made an honest mistake in reporting on a matter of interest.
The difficulties in mounting the Reynolds defence have been well rehearsed. The list of 10 principles, first enunciated by Lord Nicholls in 1999, were not supposed to be exhaustive, but in practice they have been used by judges in lower courts as 10 hurdles over which journalists and newspapers must jump to use the defence. It turns out to be a very expensive defence, and it affects how non-governmental organisations compile their reports and decide what they are prepared to write. I hope that during the Bill’s progress the Government can give us comfort that their factors (a) to (i)—not one to 10—will not have the same effect. The House might wish to explore alternatives to bolster the public interest defence.
As I, to much relief, move to conclude my remarks, I want to cite one case concerning the deficiencies of Reynolds and some of the changes introduced in the Defamation Act 1996. On the face of it, The Guardian’s investigation in 2008 into the tax affairs of Tesco should have benefited from Reynolds and other remedies, such as the offer of amends procedure. The Guardian alleged that Tesco, through the use of overseas subsidiaries, was avoiding tax. The company was indeed avoiding tax, but The Guardian, not helped by a lack of co-operation from Tesco, identified the wrong tax—corporation tax, rather than stamp duty land tax. It was an honest mistake. The thrust of the article was absolutely correct: Tesco was involved in elaborate legal tax avoidance schemes, and further investigation by Private Eye showed that it was also elaborately avoiding corporation tax.
In practice, however, The Guardian found that it could not use Reynolds because of how it was being interpreted. Tesco pressed on regardless, despite a lengthy apology in the newspaper and offers of amends. For good measure, it sued the editor personally for malicious falsehood, and by the time it was settled out of court, the case cost a small fortune. Had it gone to the bitter end, some estimates would have put the total at £5 million. For a giant corporation such as Tesco, money was no object. It was perhaps the worst case of inequality of arms that I have come across and that our Select Committee investigation came across, and the worst case of the intimidatory use of the libel laws by a corporation against a publication that we could remember. The test for the Bill is whether such a case could occur again. I encourage the Government to consider the circumstances of that case and learn lessons from it.
That leads me to my conclusion, which concerns one aspect of the Bill where the Government have not accepted a recommendation advanced by both the Select Committee and the Joint Committee on the draft Bill—reforming the ability of corporations themselves to sue for libel. I hope that during the course of the Bill amendments will be tested in that respect.
This has not been an exhaustive comment on the Bill. I welcome it but hope that during its passage the Government, having spent so much time on it, will be receptive to improvements.
Tom Brake (Carshalton and Wallington) (LD)
It is a pleasure to make a short contribution in what, so far, has been a consensual debate. It has been consensual partly because of the experience of many of the people who have participated and the knowledge they have brought to bear. Like other Members, I pay tribute to the organisations, individuals and Committees that have pushed this issue over many years. It looks as though we are close to a resolution.
The Lib Dem manifesto in 2010 stated that we
“believe it is an individual’s right to live their lives as they see fit, without discrimination, with personal privacy, and with equal rights before the law.”
We went on to say that we will:
“Protect free speech, investigative journalism and academic peer-reviewed publishing through reform of…libel laws—including by requiring corporations to show damage and prove malice or recklessness, and by providing a robust responsible journalism defence.”
Clearly, as we have heard tonight, other parties also committed to reform of the libel laws, and it is with great pleasure that the coalition Government have picked up this issue and clearly stated that we will review the libel laws to protect freedom of speech.
Many hon. Members have set out the reasons for reviewing the libel laws, drawing attention to the fact that although our libel laws have developed over many centuries, they are now outdated and are struggling to keep up to date with technology. It is embarrassing that foreigners can be sued in our courts on weak pretexts and that that has led the United Nations Human Rights Committee to take the view that our laws
“discourage critical media reporting on matters of serious public interest, adversely affecting the ability of scholars and journalists to publish their work”
and that libel tourism could
“affect freedom of expression worldwide on matters of valid public interest”.
The Justice Secretary said earlier that he did not think it was fair to describe our laws as an international “laughing stock”, and perhaps that is a little too strong, but I think that all hon. Members here this evening could agree that we should be seeking to make our laws an international blueprint.
We have all-party consensus on this issue, and we know from very recent history that that is not always the case on justice issues. It would be regrettable if we wasted that consensus. As has been said, by the shadow Justice Secretary I believe, only three Bills have touched on the subject of defamation since 1852, so it would be a pity if we did not use this opportunity to get this right. It would be particularly regrettable given that, as far as I am aware, no vocal and organised lobby is campaigning against these proposals. Individuals, particularly those with a legal background, have perhaps been lobbied personally, but I am not aware of a groundswell of opinion opposing what the Government are proposing, and that surely presents an opportunity to push a little harder than the Bill proposes.
A number of hon. Members have said that it is difficult to future-proof the legislation, but we need to ensure that as far as is possible it is future-proofed, because, as I and others have stated, these Bills come around only every 50, 60 or 70 years. When dealing with an issue such as libel, what we are really talking about is context, content, level of harm, author and intent, and those issues should, to a great extent, be technology-independent. If we have to come back to this issue every time the next Facebook or Twitter is developed, we will be chasing our tails year after year.
I said that there is scope for improvement to the Bill, and the Libel Reform Campaign, which has been prominent in pushing this issue, has identified areas where it believes a good start has been made, and I would agree with a single publication rule preventing perpetual liability owing to internet publication. We all know that once something is out there on the internet it is almost impossible to get rid of it, and it will continue to circulate without anyone being able to exercise any real controls over it. The LRC welcomes, as we do, the fact that we are introducing measures to ensure that libel tourism is stopped, even if it is not happening on the scale that people believe.
Other developments include withdrawing or restricting the right to trial by jury in such cases. Almost every hon. Member would normally be clamouring to maintain that, but it seems that there is almost unanimity on its inappropriateness to most libel cases.
Many hon. Members have referred to the areas where improvement can be made, so I will not dwell at too great a length on them, but they are: the public interest defence; the serious harm test; corporations; and, finally, protection for internet hosts and intermediaries, on which I know my hon. Friend the Member for Cambridge (Dr Huppert) wants to spend some time later, if he is lucky enough to catch the Deputy Speaker’s eye. The exchange between him and the hon. Member for North Antrim (Ian Paisley) highlighted that there are some differences on the sort of protection that can or should be provided to internet hosts and intermediaries, and to individuals who are being attacked by trolls using that sort of technology.
I am sure that the Minister has received the Libel Reform Campaign briefing—I have it here and I am sure he recognises it—which sets out some challenges to which I hope the Minister will be able to respond in detail, even if he is not able to do so today. I hope he will confirm whether, in his view, its concerns are being addressed by the Bill, and if that is not the case, whether the Government will endeavour to address them. If they believe the concerns are unjustified, I hope he will explain why. It would be in keeping with the way in which these exchanges have taken place so far—I believe that the hon. Member for Worthing West (Sir Peter Bottomley) referred to the consensual and open attitude that Lord McNally had adopted in relation to discussions on this matter—for there to be ongoing dialogue and improvements to the Bill.
On clause 4, the LRC recommends
“an additional defence…which protects genuine public interest statements made in good faith.”
It highlights the fact that that might limit the occasions on which the expense of a full trial was required. In other areas of justice, the Government have rightly been saying that we want earlier settlement, mediation and conciliation, so there must be a good case for ensuring that matters do not reach a full trial.
The LRC wants to see changes that
“shift the burden of proof to the claimant to show that the publication (on a matter of public interest) was irresponsibly published.”
It also believes that
“the nature of the publication should always be taken into account so that small or solo publishers (such as bloggers) are not held to the same standard in running a defence as a newspaper.”
Those are perfectly valid queries or challenges to the Government, to which I hope the Minister will be able to respond. The LRC also identifies some concerns about clause 1 and the serious harm test, and the extent to which it goes any further than simply restating the existing common law position. I hope that the Minister will be able to pick up on those concerns, too.
Corporations have been mentioned by a number of hon. Members, including the right hon. Member for Tottenham (Mr Lammy) and the hon. Member for Newcastle-under-Lyme (Paul Farrelly). I have already quoted from the Lib Dem manifesto; we specifically identified the area as one that we wanted addressed. It is absent from the Bill but I hope that some amendment or amelioration will be possible. Corporations are not individuals and should not have the same rights. Clearly, if individual directors were libelled they should have the same rights, but considering the extent to which corporations can use libel laws to manage their brand, as the Libel Reform Campaign has put it, we should be very careful to ensure that that cannot happen. It should not be simply about protecting an image as opposed to any real or substantial harm that might have been incurred as a result of comments that people might have made.
I promised to keep my remarks short and I always keep my word. We have made good progress on the Bill and I hope that the open approach that has been adopted so far by Lord McNally and the Under-Secretary of State for Justice, the hon. Member for Huntingdon (Mr Djanogly), will continue. The Bill can be improved. We have a once-in-a-lifetime opportunity, so let us not pass it by.
Amber Rudd (Hastings and Rye) (Con)
This is a timely debate. The Bill might be uncontested, as we have heard from many Members, but it is not uncontroversial. Free speech and freedom of expression have been brought to the forefront by the Leveson inquiry, which is happening a mile down the road. In this House, we know that there is a fine balance to be struck in weighing the right to freedom of speech and expression against the right to privacy. As my right hon. and learned Friend the Secretary of State said in his opening remarks, when it comes to the law on defamation it is vital that we get the balance right. Every Member who has spoken has mentioned the difficulty of getting it right. The solution is not a simple one and great care and caution must be taken.
I, like many other Members, believe that our libel laws are outdated and have made it far too easy for the rich and powerful to suppress and stifle criticism. Even many small-time bloggers, journalists and academic professors are afraid to tackle important issues for fear of being sued—a sad reflection of the current law’s unintended consequences. The Government’s reforms seek to redress the balance, maintaining the importance of free speech while giving people the opportunity to defend themselves against unfair and malicious allegations.
We have heard a lot today about libel tourism. I appreciate that there are mixed views on the matter and on how much of a problem it is in the UK. Some Members have felt that it is overstated, others that it is not, but I think we all agree that it is a problem that London has been labelled in such a way. It is crucial to emphasise that not only the number of cases reflect the problem caused by the libel tourism tag. The threat of proceedings can be used to stifle much-needed investigative journalism, regardless of whether a case is ultimately brought.
I agree with the comments made by my hon. Friend the Member for South Swindon (Mr Buckland), who spoke so eloquently about libel, that it is important that everybody from every walk of life should have access to protection from libel. Libel tourism is hardly an attractive label to be attached to the UK. Here we are, in the mother of Parliaments, standing up for our country, and we do not want to hear that label used. We have so many wonderful attractions in this country—and, dare I say it, in Hastings—so let us try to lose the tag as a destination for libel tourism as we tackle the issue of defamation. I therefore strongly welcome the provision in clause 9 to tighten the test applied by the courts in cases brought against people who are not domiciled in the UK or the EU.
I support the provisions in clause 11 on the presumption against a jury trial in defamation cases. Of course, I understand the importance of trial by jury in most cases, where it provides a fair hearing for all concerned. Many Members have spoken about the importance of maintaining the true and honest right of British citizens to be tried by their peers, but the existence of the right for either party to opt for trial with a jury has its problems. As we heard earlier, it can often impede settlements, create additional costs and increase the length of cases which, on average, take about 12 months from the issue of court proceedings to trial.
The outdated law surrounding privacy and defamation is highlighted by the online traffic that many Members have discussed. Our internet hosting sites are a particular example. Twitter and Facebook especially have driven a significant rise in online libel claims. For example, last year a county councillor was ordered to pay £3,000 in damages and costs to a political rival over false claims made on Twitter. Operators of websites, both large and small, are also at risk of action against them in respect of comments posted by a third party. It is almost impossible for many websites, such as social networking sites, to police that. The owner of a book store would not be prosecuted for a sentence contained within a book sold at the shop, so why should online sites be fearful of such action being taken against them?
Dr Huppert
The hon. Lady is making an excellent point about how a bookshop should be treated, but unfortunately that is not what happens at the moment. Bookshops are subject to libel cases about books they are trying to sell, which they have no ability to defend.
Amber Rudd
I thank the hon. Gentleman for that intervention. That is a broader point about some books, but there are quite a lot of books that are not subject to such analysis. I am sure that the Minister will address that point later.
At the moment, internet hosting sites are obliged to remove allegedly defamatory material from their website when they receive a complaint, often without knowing whether the comments are defamatory. That is an attack on free speech and the Bill addresses that issue. The provision in clause 5, which offers website owners a new process governing the responsibility for publication on the internet, will undoubtedly give websites greater protection against a threat of legal action. I am sure that is welcomed by Members on both sides of the House.
Above all, I welcome, as I know my constituents in Hastings and Rye will, the clarity that the Bill will provide in an area that remains unsettled and unclear to many.
Let me mention clause 13, which repeals the Slander of Women Act 1891.
Michael Ellis
My hon. Friend is making some very powerful points. The Slander of Women Act 1891 will be repealed by clause 13, as she says, and that tallies well with the Government’s proposals to repeal a number of pieces of outdated and outmoded legislation. Does she feel that that rarely used piece of legislation should be repealed in such a way?
Amber Rudd
I am grateful to my hon. Friend for that intelligent question. The Act provided that slander imputing unchastity or adultery to a female is actionable per se. Although I naturally support adequate protection of women across the country, I think that goes a little too far. The Act does not apply to Scotland, so it is about time the rest of the UK followed suit.
I am confident that the Bill will redress the balance in the defamation rules towards freedom of speech in a way that is just and fair. The reforms are well overdue and, as we have heard this afternoon, widely supported by the public and the rest of the Members of this House. I therefore commend the Bill to the House.
Dr Julian Huppert (Cambridge) (LD)
It is a great pleasure to speak in this debate. We face a tough challenge in trying to write defamation laws. On the one hand, we want freedom of expression and, on the other, we want protection of reputation. We want to get the balance right while ensuring that the system is affordable, because the law should support whoever is right rather than whoever is wealthiest. We should also ensure that the law is accessible to all, not just to lawyers, and we simply do not have that balance. The costs are not right—they are far too high—and there is what has been described today as the chilling effect of people being silenced for fear of large costs, even in thoroughly unmerited cases. That happens. We have heard about a number of cases, including those that involved Simon Singh and Peter Wilmshurst. We have heard of publications such as Nature, Which? and the British Medical Journal, which do not feel that they can publish articles out of fear. It applies online as well—Mumsnet, WhatDoTheyKnow and many others.
While I was writing this, a case came up in my constituency, Cambridge. Richard Taylor, a local blogger and an extremely assiduous attender of council meetings who writes them up in immense detail, described a council meeting which was looking at enforcement action against a property in Cambridge being used as a bed and breakfast without the benefit of planning permission. This has led to a rather bizarre libel threat from an organisation known as WWFS Ltd or UK Law Consultants Company, who say they are consultant solicitors. Though I am not an expert in the field, the claim appears to me to be baseless, especially since the people making the claim refuse to say which part of his description they find defamatory. They have gone on to threaten other commentators.
Mr Taylor writes on his blog—all this is there, if anybody would like to look at www.rtaylor.co.uk—and this should worry all of us:
“My view is that this kind of thing is one of the reasons people shy away from entering discussion of how we run our society, be it at the local level in Cambridge or more broadly.
Having received the threat of legal action I have had to consider if I am prepared to risk everything I have in order to do what I consider to be the right thing and continue to publish the material. This is to an extent the question which has to be asked before publishing any material, every blog post and every tweet could potentially be personally ruinous.
Should the case reach court, the cost of defending it, even if the judgment was in my favour, could exceed my resources.”
A number of people with legal training and others are assisting Mr Taylor in the case and I think he will be all right. He is also determined enough to get through.
The current position is not acceptable. The Libel Reform Campaign was established in 2009 to try to make a difference. Lord Lester proposed his Bill in 2010. There was a Government draft Bill in 2011, and I had the great privilege of serving, with other Members who have spoken, on the Committee which considered that. The full Bill was tabled in 2012, led by the Minister, Lord McNally. It has been nice to see how this has captured the imagination. As John Kampfner, the chief executive of Index on Censorship, said,
“When we launched the Libel Reform Campaign in 2009, only the Liberal Democrats backed change. Now the cause has cross party support.”
That is absolutely correct. I pay great tribute to him and to everybody in the Libel Reform Campaign—Index on Censorship, English PEN, Sense about Science and all the other supporters that they have.
I would like particularly to mention one extremely dogged individual who has been involved with that, as well as with the Hacked Off campaign, Dr Evan Harris. I suspect that Members in all parts of the House will have heard his comments on the issue. I am delighted by the cross-party support that we have.
This is a good Bill, but with some tweaks it could be a great Bill. I am delighted by clause 1. The serious harm test is right, but it should be coupled with a strike-out power so that cases could be quickly ended where there is no serious harm to consider. I support clauses 2, 3 and 4 as they codify the common law, which means that non-lawyers such as myself can find out what the rules are, without having to plough through case law after case law.
With regard to clause 4, I am pleased about the codification of Reynolds, but it is still a complex defence. Some improvements can be made, as Members have mentioned. I hope the Government will consider the possibility of a simpler, clearer public interest defence which would apply where defendants take appropriate action to correct any errors or inaccuracies that they have made, as has been suggested by the Libel Reform Campaign. I do not expect the Government immediately to say yea or nay to any such proposal. It needs to be considered very carefully, but I hope they will look at it. If we could find something like that, it would be an excellent improvement.
Clause 6 is a key change from the draft Bill and shows the value of pre-legislative scrutiny, which I hope will be applied to a number of other Bills, as it is shortly to be applied to the draft communications data Bill. Clause 6 is extremely welcome. I pressed hard for this. My experience as an academic scientist made me particularly concerned and I was especially pleased when the Secretary of State announced, in response to a question that I asked him, that there would be a change to give protection to academics and scientists publishing peer-reviewed articles.
Currently, journals are afraid of publishing peer-reviewed statements, and academics can be afraid of making the statements that they need to make. There has been an insidious silencing of rigorous scientific debate. A survey conducted by Sense about Science in 2010 found that 38% of editors of scientific journals have chosen not to publish certain articles because of a perceived risk of libel, and 44% have asked for changes to the way articles are written to protect themselves, not necessarily because they thought there was a genuine case to answer. Journals such as Nature, the British Medical Journal and a range of others are not libel experts and should not be expected to be libel experts.
Dr Sarah Wollaston (Totnes) (Con)
Does my hon. Friend accept that that should be extended to national newspapers? There is indeed a stifling of debate about scientific issues in the national press, and very many of our constituents do not read the scientific press and need access to good scientific debate in the national press.
Dr Huppert
I thank the hon. Lady for her comment. She is right that we need to encourage more educated scientific debate among the general public. That is a larger issue than the subject of the present debate. The question is how far one goes in providing the sort of privilege that we are talking about. Peer review processes are significantly better developed than what we see in newspapers. I would expect newspapers to have more access to lawyers who could advise on libel because they deal with a range of issues. But there may be ways of going slightly closer to what the hon. Lady suggests and I would encourage something like that to happen.
Bob Stewart (Beckenham) (Con)
Is it not possible that we could have a sort of citizens advice bureau for people who are thinking of publishing something so that they could go to someone who understands the issues, without having to go through the law to get guidance quickly, so that good debate is not stifled?
Dr Huppert
I thank the hon. Gentleman for his comment, and I can see where he is coming from. The clause goes further than that and it is better. It says that for peer-reviewed academic publications, unless they are malicious, there is no risk. So the citizens advice bureau approach is not necessary. Anybody publishing in this way knows that they are fine, as long as they are not being malicious, and I hope people would not seek to be malicious in this way.
However, we do see such cases, and not only the famous ones. In the past six years one in 10 of all High Court libel cases have involved an academic or scientist. It is a real issue, and I believe firmly that scientists and other academics should focus on doing research in their field, not on researching the law. That protection is very welcome.
Clause 10 is another welcome addition to the Bill, particularly because it protects booksellers. As the hon. Member for Hastings and Rye (Amber Rudd) mentioned, they sometimes face cases on questionable materials. If they are selling two such books a year and are not interested in defending the case, they just remove the book from their stock. It should be the author who is responsible, wherever possible.
I support most of the other clauses. I am pleased to see clause 7, which extends some of the privilege protections, clause 8—the single publication rule—and clauses 9, 11 and 12. I am pleased to see clause 13, which gets rid of the Slander of Women Act 1891. Society has moved on slightly in terms of gender roles since 1891.
This is a good Bill, but there are still some areas of concern. I agree with those who have said that one of the key areas that has not been looked at enough is costs. It is key to get the costs right, but that is not entirely within the Bill. Cost is not just a matter of writing legislation. Legislation alone does not solve every problem. The Government need to do a little more work to make it clear how they will reduce costs, in addition to the legislative changes that are being made.
Then there is the issue that has been touched on recently about corporations and other non-natural persons. I agree with my right hon. Friend the Member for Carshalton and Wallington (Tom Brake) that non-natural persons are not natural persons: companies are not the same as people. They do not have feelings in the same way and they could be treated differently. There have been many cases, such as the McLibel case, of corporations which abuse their power and their resources to take unreasonable libel actions.
The Joint Committee recommended that corporations should have to prove that they have actual, substantial financial loss and that they should have to get permission from the court in order to take actions. That seems a modest way to go, given some of the other proposals, which are quite tempting. An extreme view is that corporations should not be allowed to take libel action at all. This has been tried in Australia, so that only corporations with fewer than 10 employees are allowed to take any sort of libel action. I have spoken to a number of lawyers in Australia, and that does not seem to be the best way to go. I hope the Government will not go ahead with that idea, although I was initially attracted to it.
I rarely disagree with comments from the Libel Reform Campaign, but I do not like the idea of courts being asked to make declarations of falsity. I was initially persuaded of that, as people who served on the Committee are aware, but I think on balance that it is hard to expect a court to say definitively, “This statement is false,” because new evidence can come up. It is a very hard thing for any court to say.
Lastly, let me turn to clause 5, which deals with an incredibly complex area. I think that the idea of a new defence is a good approach, but it needs to be tweaked somewhat and the Government’s proposed regulations should be published and available for discussion alongside the Bill. I hope that the Government will be absolutely clear that this new defence is an optional one that website operators can use but do not have to. It does not impose on them a duty; it merely gives them a defence if they comply with some regulations. Furthermore, I hope that the Government are absolutely clear that the existing defences from the e-commerce directive remain in place and that the rules about being a mere conduit and so forth still apply in exactly the same way they have done. It is very important that we do not see any inadvertent weakening of the protections available.
It is also important that we are clear that the good practice of post-comment moderation used by some website operators, whereby they try to do their bit to filter out the things they can tell are inappropriate, does not itself bring about liability, so long as that does not change the meaning in a damaging way or significantly increase the scale of publication. This was recommended by the Joint Committee and accepted by the Government, because if the BBC, for example, spots something inappropriate and removes it, it is important that that does not render it more liable to the thing that they could not have spotted because they would not know the facts of a case.
It is also important that there is an ability to preserve some anonymity. It is right that action should be taken against a person who posts something online, but there will be cases, such as those of whistleblowers and dissidents, in which there is a real reason why anonymity should be preserved. The key point is that there should be a communication channel between the person complaining and the original author, even if that is mediated by a third party.
This is a very complex area, and I welcome the fact that the Secretary of State said at the beginning of the debate that he was open to considerations to try to get it right. I hope that either he or the Minister will be able to arrange for the Bill team to meet me and the Libel Reform Campaign, internet service providers and organisations we have been talking with, such as Facebook, Google, Yahoo and Mumsnet, to discuss how we can get this right so that we get what we all want: something that works in a clear and simple way and gives the right protection to the people we wish to be protected. This is a good Bill and I am delighted to support its Second Reading.
Michael Ellis (Northampton North) (Con)
It is a pleasure to follow my hon. Friend the Member for Cambridge (Dr Huppert), who is a fellow member of the Home Affairs Committee. It will come as no surprise to Members that I support the Bill. I do so because it defends the sanctified right of freedom of speech that this House has sought to protect for generations and, I expect, will continue to seek to defend. But it is also a good Bill because it recognises that there are limitations to the right of freedom of speech—sadly, the courts have not always recognised in recent years that there are limitations to certain rights. With every right there is a responsibility, for example, and it would not go amiss to notify the human rights courts of that point occasionally. The right to freedom of speech has been recognised in the courts for many years but, to use the classic example, it does not extend to allowing a person to go into a crowded theatre and shout, “Fire.” We have to recognise that those rights must be curtailed.
The Bill will rebalance the law to ensure that people who have been defamed are able to protect their reputations, and it is right that they should be able to do so. Freedom of speech and freedom of expression are not, and must not be, unjustifiably impeded by actual or even threatened defamation or libel actions. The reality is that sometimes even the threat of a defamation suit can prevent a person from making a fair comment on something, giving an opinion about a product, service or individual, or expressing a doubt about something. Many will take the view that it is simply not worth it and decide it is easier not to refer to a particular area of controversy because they do not want to risk getting a solicitor’s letter and the very expensive defamation actions that would follow. The Bill will ensure that the threat of libel proceedings is not used to frustrate scientific, medical or academic debate, for example. Sadly, there have been examples of the peer-reviewed work of academic experts and others and their freedom to speak freely on those subjects being endangered by threats or actual suits for defamation.
We need to reduce the potential for trivial claims and address the perception that has arisen in some parts of the world that this country is suitable for libel tourists, the people who come to this country, despite the fact that only one or two of their books or magazines have been sold here, to take an action for defamation because the law in their home country is in some way unsuitable for their purposes. We do not want this country to be seen as a libel tourism haven, and that is addressed in the Bill.
In my judgment, it is right that the test for determining that a statement is suitable for defamation proceedings is whether it has caused “serious harm”. Cases sometimes go before the courts in this country when even a reference to someone being ugly or in some way antisocial is enough to justify a libel action. It is a matter of fact and degree, but in my judgment it is right that serious harm should be proven before a statement can really be considered defamatory.
The Bill also deals with the new statutory defence of responsible publication on matters of public interest, to which I have already alluded. Such things as peer-reviewed academic, medical and scientific analysis, which sometimes necessarily has the effect of rubbishing someone else’s academic work, should be appropriately open to debate, so long as there is no clear malice, and not subject to over-sensitive legal actions. The Bill updates and extends the circumstances in which the defences of absolute and qualified privilege are available, including extending qualified privilege to peer-reviewed material.
I am also impressed by the way the Bill goes some way towards addressing the issues that have arisen in recent years concerning the publication of defamatory material on the internet. The single publication rule that the Bill introduces will prevent an action from being brought in relation to the publication of the same material by the same publisher after the one-year limitation period. It has been quite easy for people to take defamation actions against newspaper websites, for example, and others if they repeat the libel that was originally the subject of an action. It is very easy for those websites to be insufficiently monitored so that they repeat the libel and a further and new action can then be taken. It is right that a limitation of one year be put on that, because the nature of the internet is such that it is very easy to draw down the material that was the subject of the libel and repeat it.
Another feature of the Bill that has been referred to in the Chamber is that it will remove the presumption of a jury trial in defamation actions. I would passionately seek to defend the right to a jury trial in almost every case, and certainly criminal cases. There are now very few civil cases that would be subject to jury trial—I can think of malicious prosecution, false arrest and false imprisonment, but very few others.
This Bill will not remove the right to a jury trial in defamation proceedings, but it will remove the presumption that a jury trial should be the forum that is utilised. We should of course trust our judges to exercise their lawful discretion to order a jury trial when they think it appropriate, and there will be some cases in which a jury trial will be appropriate, especially one involving one person’s word against another when there is very little other ancillary evidence, because juries are equipped to make a judgment on witnesses when they hear them from the witness box.
Guy Opperman
On jury trials, does my hon. Friend not accept, however, that in civil liability trials and in all number of other pieces of litigation, the judge is taken out of the assessment of the truth of individual witnesses, and that credit is something judges are well used to judging on a regular basis? Does he not also accept that there is a possibility of our merely returning to a situation in which we have endless jury trials, instead of trusting the judges to get on with the decision?
Michael Ellis
I recognise my hon. Friend’s point, and the common law will no doubt develop in this area, but I hope that, if this Bill becomes law and removes the presumption in favour of jury trials, judges will recognise that jury trials will be less frequent than heretofore. I will be corrected if I am wrong, but I seem to recall that until relatively recently juries in defamation cases had a part to play in deciding the quantum of damages after successful defamation proceedings, and I recall also some rather large figures for damages awarded against various periodicals. I am a great fan of Private Eye, possibly because I have not featured in it—[Interruption.] I am not inviting it, and I emphasise that!
Michael Ellis
The less said about that, the better. I remain a fan of that periodical, and as far as such proceedings are concerned we have to move with the times, because defamation law has not tended to move with them sufficiently.
Jacob Rees-Mogg
My hon. Friend says that we should move with the times. Surely we are Conservatives and should be turning the clock back.
Michael Ellis
Notwithstanding my hon. Friend’s pertinent observation about our party of support and care, I think it is right—I know my hon. Friend will agree—that the Conservative party has moved with the times. It is the longest-serving political party anywhere in the democratic world because it has tended to move effectively with the times over the generations.
Few colleagues have made the point that the Bill will rightly provide a power for the court, under the existing summary disposal procedure, to order publication of a summary of its judgment, which will be available in defamation proceedings generally. It is my understanding that the courts will be able, in certain circumstances, to order the offending publication to reprint some or all of its judgment. That will be quite useful if a judge feels that there has been an egregious failure by the periodical which is not going to be met other than by his or her intervention to ensure that proper redress is made in terms of the court’s ruling. The hon. Member for North Antrim (Ian Paisley) referred some time ago in this debate to a page 1 splash, which a few months later results in a postage-stamp-sized apology on page 52. A judge will be able to order, if he or she wishes, that a transcript of the judgment be reprinted in full in the newspaper. That will be quite powerful for the courts, and an effective measure.
The secondary publishers to which hon. Members have referred, namely the vendors, bookstores and booksellers, need greater protection from civil suit in any defamation action that may be brought against them. There may be certain circumstances in which it is appropriate to take punitive action against a bookseller or a company that disseminates libellous material, but it ought to be a secondary measure. The primary purpose—the primary avenue—should be to take an action against the author and publisher of the offending work, and the disseminator should be involved only if necessary, appropriate and reasonably practicable. I therefore approve of all those measures, which will be rather effective.
We need to remove the trivial and unfounded cases and raise the bar for bringing a claim. I am conscious that it is sometimes prohibitively expensive to take an action for defamation, and colleagues have referred repeatedly to the chilling effect of the costs involved. That can itself be limiting, and a principal concern of mine is that individuals who are without means or even of “middle” means—if I can put it that way—are not able to take the same action as a wealthy individual or a news company that has a greater ability to fight and to defend actions in what can be very expensive defamation proceedings.
In short, this Bill has my support for all those reasons. It is clearly a necessary measure in order to modernise the law of defamation, and in those circumstances I expect it to have considerable support on both sides of the Chamber.
Guy Opperman (Hexham) (Con)
I, too, support the Bill, and on defamation I fundamentally believe, as Shakespeare wrote:
“The purest pleasure mortal times afford
Is spotless reputation: that away,
Men are but gilded loam or painted clay.”
That was said in “Richard II”, a king who sadly did not last long enough as a Yorkist to enjoy much of his spotless reputation, as he was shortly killed thereafter, but his reputation, spotless as it was, went with him to the grave.
The world is clearly changing. My hon. Friend the Member for Northampton North (Michael Ellis) and I shared an illustrious, or non-illustrious, career as barristers in a former life, and my old copy of “Carter-Ruck on Libel and Slander”, the definitive edition from 1997, features not a single paragraph about libel and slander on the internet, because of course such a thing did not exist in those days.
We now face the dreaded heretic that is the internet troll. Many of us would not have known, until a couple of years ago when we took public office, what an internet troll was, nor would we have been subjected to the great delights of annihilation in print or prose, such that we all now have to face the slings and arrows of outrageous internet fortune on a regular basis, but the development of the law requires this Defamation Bill, which we are considering, and it can only be a good thing.
My hon. Friend said that we must move with the times, but sadly the reason why we have Lord Leveson’s inquiry is that too many political parties moved with The Times for far too long, and Mr Murdoch and his empire have been far too close to too many people on a repeated basis—such that I am beginning to distance myself from The Times.
Guy Opperman
I accept the possibility that my hon. Friend was not referring to that, but was referring to the development of events over the past few years.
It is absolutely vital to ensure that we have a free press and an ability to speak out without fear or favour—that is fundamental—but justice must be accessible to the people who receive comments from such a press. The Bill definitely increases that accessibility, and I welcome that wholeheartedly. Any interpretation of such legislation must take account of the countless stories told throughout this debate of people whose reputations have been annihilated on the internet and elsewhere.
Bob Stewart
Would it not be fair for people of little means to have the opportunity to go to, say, a defamation ombudsman who could give them advice and help them before they spend one penny? At the moment, the law seems to be available only to those who can afford it, and that is wrong. It should be possible for a man or woman of no means to be able to go and get decent advice from someone who knows what they are talking about.
Guy Opperman
I am delighted to say that to a certain extent such advice does exist. There more developed citizens advice bureaux and victim support organisations are able to provide such assistance, as are the Bar Pro Bono Unit and the Free Representation Unit. I have represented individuals in libel cases as part of the Bar Pro Bono Unit, and there will certainly continue to be such accessibility. However, my hon. Friend identifies one of the fundamental flaws in the Bill, which I hope will be remedied in Committee.
The Jackson report that was instituted by reason of the Legal Aid, Sentencing and Punishing of Offenders Act 2012, which we passed on 1 May, ensured that there is no ability to recover the cost of insurance for the litigation. The consequence of that is that individuals who wish to bring such litigation against a newspaper would have to risk a great deal were they unsuccessful. There is a way round that. The way forward is for the courts is to develop what they have developed in other branches of the civil litigation arena—a protective costs order. In the case of Compton v. Wiltshire primary care trust, the protective costs order was extended to a local group of individuals to make the case a matter of public interest. This means that were someone to wish to bring a civil action against a public organisation or a newspaper and it was in the public interest for them to do so, they would be protected were they to lose the case because the very fact of bringing that action constituted something that was in the public interest. I suggest that we will see that development in libel and defamation law. As my hon. Friend the Member for Northampton North said, common law will develop to accommodate the fact that, sadly, there is no legal aid and precious little to assist the individual litigant in taking a case against the newspaper or public institution that has defamed them.
The nature of this Bill is such that there is general agreement that we need to move forward and have a better understanding of such access to justice, which is patently not there at the moment. I should make a declaration as a trained mediator and as someone who was at the Bar and has earned a moderate living as a barrister. [Interruption.] I was not a very good libel lawyer, I hasten to add. The shadow Minister just said that I used to practice extensively at the Bar in this field, but I assure him that I was of no quality whatsoever in libel cases; I got far too irate. A greater use of mediation at an early stage can only assist. Looking at the various problems that arise in libel, the mediation and the apology at the early stages are most important, not necessarily the damages that are ultimately sought, but we get so enmeshed in the process of litigation that we end up with a case that has mushroomed way beyond the reality of the loss entailed. I therefore welcome the extra mediation and alternative dispute resolution processes that the Bill will bring about.
I warn that there can be a sad tendency to have a great deal of discussion at the early stages of the litigation process. I have witnessed that in many a case. One has to clear hurdles at the outset to prove that the nature of one’s case gets over a certain threshold and it would be not unheard of for a newspaper or a public organisation with deep pockets suddenly to attack the individual and say, “We don’t accept the judge’s finding that you’ve got over this hurdle—we shall appeal this.”
I represented Mrs Compton in the case of Compton v. Wiltshire primary care trust, which concerned the health services in the constituency of my hon. Friend the Member for South Swindon (Mr Buckland). There were 14 separate pieces of litigation involving the primary care trust that went all the way to the House of Lords on seven separate occasions. Her original hurdle was overcome and tested all the way to the House of Lords. These early hurdles must have a finite end. If one has a preliminary hurdle to get over in a defamation case, as is now set by the Bill, there should be one single right of appeal and then the matter moves on. Without that sort of process, an individual may find themselves enmeshed in ever-deeper litigation before the case has even got off the ground. By that stage, years have passed, their reputation is gone, and their ability to respond to the libel or defamation has totally dissipated. I warn the Minister that there needs to be strict guidance on the maintenance of the alternative dispute resolution process as it goes through.
I am glad that my hon. Friend the Member for South Swindon has returned to his seat. I sat through his lengthy and impressive speech, in which he said, if I remember correctly, “The law, like the Ritz, is always open.”
Guy Opperman
I apologise to my hon. Friend. It is possible that he dines in larger and more salubrious establishments than the rest of us, who are more Little Chef and Happy Eater people. I am sure that those days of the Ritz are sadly gone.
As lawyers practising in this field, we know that it is important to have accessibility, because without that there is no justice. There is a long history of those who have been defamed, from Oscar Wilde to Winston Churchill to Marie Stopes to W. E. Gladstone. It is good to see the Liberal home affairs spokesman, the right hon. Member for Carshalton and Wallington (Tom Brake), in his place. Of course, Gladstone was the last man to be libelled from the grave. His son took an action on behalf of the reputation of W. E. Gladstone and his family, who he felt had been maligned and libelled, and was successful before a jury trial.
That brings me nicely, with a slightly Radio 2 link, to jury trials. That issue must be addressed with robust guidance. It is not sufficient to say to the courts that the presumption should be against jury trials. The Secretary of State said that in matters where there is a genuine test of credibility, there would be a jury trial. I entirely accept that, but it would be extraordinarily rare to have a libel case without a genuine test of credibility. The whole purpose of libel law is to test the meaning and intent of certain words.
Michael Ellis
Does my hon. Friend accept that in many cases it will not only be about the word of one person, the plaintiff, against that of the other, the defendant, because there might be supportive material that backs up one against the other, such as e-mails, an exchange of letters, other documentary or ancillary evidence, or supportive or corroborative evidence from other witnesses?
Guy Opperman
I regret that my hon. Friend—eminent lawyer, lion of Northampton and feared throughout the west midlands legal circles though he is—has identified the fundamental problem with his own argument in a sort of self-defeating prophesy. There will surely be an assessment of the individual merit of these e-mails and of whether they have been written by an individual who can be accounted for. All those matters will come under the test of credibility that he has espoused and that was put forward by the Secretary of State.
That all goes back to the issue of a jury trial. I have no problem with jury trials. I conducted nine murder trials and umpteen Crown court trials. The short point is this: if we are to reform the libel system so that defamation is no longer tried by a jury, save in the most exceptional circumstances, the test cannot be, “Who do we believe?” As I attempted to explain earlier, that question is assessed by district judges, county court judges, circuit judges and every other judge in the country on a daily basis. We do not need a jury trial to assess that. One could argue that 99% of all trials in this country are conducted in the absence of a jury, when judges assess the merits of an individual’s credibility. With respect, I urge the Secretary of State and the Committee to address this issue so that there is proper guidance on it.
This matter has rightly been dealt with on a cross-party basis. I support the idea of having a draft Bill. It is patently clear to those of us who have endured the delights of guiding such wonderful Bills as the Health and Social Care Bill through this House, drafted as well as they were, that we are now debating a Bill that has been considered by sane and intelligent persons on a cross-party basis, and that we are therefore fine-tuning rather than redrafting. That, I assure the House, is something that we should all welcome.
Heather Wheeler (South Derbyshire) (Con)
It is a pleasure to follow my hon. Friend the Member for Hexham (Guy Opperman). I come at the Bill from a completely different perspective, because I am definitely not a lawyer. I am very much a poacher turned gamekeeper on this matter, because in another life I was an insurance broker—even worse than a lawyer—and I used to place libel and slander policies at Lloyd’s. When I saw this debate on the Order Paper, I therefore thought, “You know what? This is one for me.”
Having sat here since half past 3, I have been considering whether to give the five-minute speech, the 10-minute speech or the 15-minute speech. I have not had the nod and the wink from the Whips to say that it should be the three-minute one because we are getting to the later stages of the debate. As has been said, there is cross-party agreement on this matter. Is that not a breath of fresh air in this Chamber?
Clauses 2, 3, 4 and 9 are particularly helpful. They have all been expanded on by learned friends, so as a mere humble Back-Bencher and political hack, and not a lawyer, I do not need to expand on them further.
Heather Wheeler
Indeed, not learned at all.
What is fascinating to me is that the Bill is drafted so clearly that the person on the Clapham omnibus will be able to understand it. Two years into this glorious coalition Government, is it not something that we are finally getting a Bill about which the person on the Clapham omnibus will be able to say, “That protects me. I understand that.”? It can be understood not only by lawyers, but by MPs and ordinary people who do not earn their money by standing before people with wigs—you are not wearing a wig tonight, Mr Deputy Speaker, so I can genuinely say that. We have found a Bill that the people will rejoice at. There should be greater publicity about the process by which this Bill has come about. It should be held up as a burning light to demonstrate what Parliament can do when it does the right thing and gets behind something.
It is an even better Bill because it fits with the great coalition pledge of one-in, one-out. We are getting rid of a horrendous piece of law that has been in force since goodness knows when.
Heather Wheeler
Since 1891—what an amazing piece of legislation to be getting rid of! Again, that is something of which this House should be eminently proud.
Ministers have been asked a few questions and for a few clarifications. I will sit here to the bitter end, because I want to see the Bill through. To repeat myself, it is interesting that we finally have a Bill that lay people can genuinely understand and say, “Well done.” I thank everybody who has been part of the process of putting it together. I look forward to hearing the winding-up speeches from the Front Benchers in due course and I commend the Bill to everybody.
Jacob Rees-Mogg (North East Somerset) (Con)
I thought I might throw a few pebbles into the pond of consensus that there has been so far. We have had near enough five hours of consensus. It is now time to hear a little from the other side.
First, as a general principle, when all parties agree on something, it is usually a mistake. We have found that historically. The cut and thrust of debate, with one side saying one thing and the other putting forward the alternative view, is enormously powerful in getting to the right answer. I am rather suspicious when we have a lawyerly committee that comes together. I am so pleased to follow my hon. Friend the Member for South Derbyshire (Heather Wheeler), to break into the lawyerly cabal and give the view from the layman. So first, I have a suspicion of consensus in principle.
Secondly, as my doubts were beginning to grow, at the end of his fine speech, the Lord Chancellor said that this was a “sound piece of modernising” legislation. It seems to me that the words “sound” and “modernising” never go together. If something is modernising, one ought to be suspicious of it. We had modernising from 1997 to 2010 and it almost bankrupted the nation. Therefore, “sound” and “modernising” are not compatible.
I think back, of course, to the coalition agreement. It is a great pleasure and a daily joy for all of us to be in coalition with our Lib Dem friends, allies, compatriots.
Jacob Rees-Mogg
I am so pleased to hear that it is mutual. I say that for the benefit of the Hansard Reporters in case they did not catch it, although they have such sharp ears that I am sure they did.
The Bill is something that the Lib Dems asked for in the coalition agreement. It is a major piece of legislation, which we are pushing through at the very earliest stage of the second Session of Parliament. We should remind the Lib Dems that this is their legislation. When they come back and ask for more legislation later in the Session, perhaps to do with constitutional reform, we can remind them that they have had their fair share and that we have been relatively sotto voce about our concerns over this Bill, so they cannot expect to have any more.
Jacob Rees-Mogg
I have been listening for the last five hours to how amazingly important the Bill is and to the view that it is short but perfectly formed. It seems to me, therefore, that the power of the Bill and the effect it will have should not be underestimated when we look at the scales of coalition balance. At the moment, they are weighing down heavily on the Lib Dem side and I think that we might need a little counterweight for the Conservatives later in the Session.
I want to consider the merits of the Bill and the whole idea of what we are trying to achieve. We have heard from other Members about freedom of speech, which is something of the utmost importance—the cliché of the evening, but it is a true cliché. Freedom of speech is under attack from the Leveson inquiry, which wishes to bind down journalists to rules of good behaviour, and sometimes from libel lawyers.
However, we should also consider the question of reputation, defamation and how we should protect people when they feel they have been hard done by. My hon. Friend the Member for Hexham (Guy Opperman) quoted Shakespeare. Two can play at that game, so I though I would too:
“Good name in man and woman, dear my lord,
Is the immediate jewel of their souls.
Who steals my purse steals trash—”
in my case butterflies and moths, and things like that—
“‘tis something, nothing;
‘Twas mine, ‘tis his, and has been slave to thousands;
But he that filches from me my good name
Robs me of that which not enriches him,
And makes me poor indeed.”
So it is right that there is some protection in our legal system for people’s good name, even though that impinges on freedom of speech.
There are already many protections in the law for freedom of speech. We are fortunate to enjoy under the Bill of Rights an absolute privilege for anything that we say in this Chamber. It can never be used in any court of law. We can be as rude about people as we like—not that I am going to use that privilege this evening, but it is a privilege of absolute free speech.
It is to be welcomed that the Bill maintains that truth should be a defence in a defamation action. That seems perfectly sensible and wise, although I know Pontius Pilate questioned what truth was, and there is always that issue to consider. Truth is not necessarily as absolute as it can sometimes be thought to be off the cuff, so to speak. There are elements and forms of truth, and of course in the oath that people take in courts there is “the truth, the whole truth and nothing but the truth”, indicating different levels of truth.
Fair comment, which has been allowed in the past, is now being made clearly part of the law, which is absolutely splendid. If people wish to air their disagreements and phrase themselves strongly, that is all to the good and to be encouraged, and it should be protected as part of free speech. However, what if the defamation is serious? What penalties should there be then? Who should decide, and who should be charged?
I am concerned about the liberties that we are giving to internet service providers and to people who are responsible for websites but deny any responsibility for their content. They become more and more powerful as time goes on. There are two or three firms that dominate the world in that sense, but they are not necessarily on the side of the individual who is defamed.
I had my own little issue with somebody who set up a highly amusing Twitter account in my name. It was not done by me—it was much funnier than I could ever have been—but there was nothing that I could do to stop it. It went on churning out comments that some journalists thought I had made. I always thought I could say my own silly things without anybody saying them on my behalf. There needs to be some recourse for people who are impersonated and defamed through that impersonation. The responsibility ought to lie with the internet companies, which ought not to have a great exemption that allows them to tarnish people’s reputations without any great difficulty.
I have some specific concerns about the Bill and the argument that has been developed today. The first is about jury trials. We heard from the Lord Chancellor and others very good arguments for getting rid of juries—that they are expensive, that they are inconvenient, that they make the process more difficult for m’learned friends. However, that requires that we should have absolute faith in the wisdom of judges, and personally I do not. They are broadly good and wise eggs and do their best under difficult circumstances, but they are not omniscient. I feel that if my reputation were on the line, it would be safer in the hands of 12 good and true men and women of this country—ideally, of course, of Somerset. That would be the best way to protect one’s reputation. I accept that it is expensive, but it is more just.
That is particularly important in any libel case that has a political tint about it, because judges are part of the establishment. They are there, in some ways, to uphold the establishment, and we see from some of what they come up with when commissioned by the Government to write learned reports that they often fall on the side of the establishment. Lord Hutton was the supreme example of that a few years ago when he produced a most extraordinary whitewash of all that had gone on over the Iraq affair. I therefore do not believe it is right or wise to use the argument of convenience, which could be used to abolish juries in every trial in the land for all time.
Michael Ellis
Does my hon. Friend accept that the Bill simply removes the presumption in favour of a jury trial? Does he also acknowledge that part of the difficulty with jury trials in defamation actions is that the fact of a jury trial being so much more expensive can and has been used by those who have substantial means who are seeking to put off putative plaintiffs from taking defamation action in the first place?
Jacob Rees-Mogg
My hon. Friend makes the point that the Bill takes away the presumption in favour of juries, which is fair enough. I would put that presumption back. I would trust juries to make the decision, because they are better at doing so than judges, and because a jury decision is more just. The presumption in favour of a jury is less likely to leave one under the hammer of the establishment if one falls on the wrong side of it. It is true that establishment views are sometimes hard to break through, and judges are establishment creatures, so I would always trust juries against judges.
Mark Reckless (Rochester and Strood) (Con)
My hon. Friend makes a compelling argument for retaining the presumption in favour of a jury trial for libel. Will he go further and support the re-establishment of juries in the criminal proceedings at which the previous Government chipped away, and in the broad range of civil matters in which jury trial is no longer available?
Jacob Rees-Mogg
I am in absolute agreement with my hon. Friend. Those who attack juries often take a grand view of people in public life. They think that people who are in office of some kind, or who have a seal from the Crown, are grand fellows who know everything. I think we should trust the people—a sound Conservative party slogan from the 1930s. When brought together randomly, the people make better decisions—after all, they sent hon. Members here—than the most learned judges in the land.
Any attack on juries is a part of the continual chipping away at one of the great protectors of our ancient liberties. We might believe that this attack does not matter because all our liberties are not under attack nowadays, but our liberties are always under attack. It is in the nature of Governments and judges to get more power for themselves and to suck it out from the people to whom it rightly belongs. Members of the House, representing the Commons of England, Scotland, Wales and Northern Ireland—although in this instance, we are discussing only English and Welsh law—should always be on the lookout for any attack on the rights of the people.
The cost of jury trials, which was mentioned, is part of the mishmash of saying such trials are less convenient. If jury trials are expensive, we should ask: “Is justice worth paying for, or should we penny-pinch?” Of all the things the state pays for, law and order, defence of the realm and justice are the three bulwarks on which our rights depend.
I want to criticise a couple of little points in the Bill—they are less important than the jury system, but few things are as important—the first of which is the protection of academics unless they are malicious. When one of my hon. Friends said earlier that academics are not malicious, I laughed inwardly, because academics have a reputation for having some of the most spiteful battles of any profession in history when they disagree. We should be careful in saying that academics are frightfully lovey-dovey—even people in the acting community are probably quite tough with one another behind the scenes. We should not make the assumption that academics should be protected against the requirement to tell the truth just because they are academics. If what a person says is wrong, and if it defames somebody and damages their livelihood, whether they are a regius professor or a tabloid journalist ought not to make any difference.
Another thing I would like to keep—I will be accused of being old fashioned for this—is the Slander of Women Act 1891, which protects the reputation of ladies. I cannot see any reason for getting rid of it. It is rather a shame to make our law so dry and drab that we have no elegant ornaments on it to protect the reputations of those who deserve a higher degree of protection than we gentlemen.
Ultimately, there is a battle between defamation and free speech. Our newspapers, much maligned though they have been in recent months, and possibly over the last couple of years, are the most fabulous protector of our freedoms and liberties because they are so rude—because they do spy on politicians; because they do publish stories that we do not like. They embarrass us; they make us look foolish—sometimes even corrupt. That embarrassment and shame have made British public life the most honest of any country in the world. We should always protect that freedom of speech from the forces of law or the forces of Leveson—it does not really matter which: freedom of speech is very precious. But if newspapers misuse that freedom of speech, let them be punished in the defamation courts. Let them be fined and have a penalty to pay, along with the costs of a jury, because that is what has given us such a good and well balanced system—a system that ensures our liberties, but compensates those who are defamed.
Robert Flello (Stoke-on-Trent South) (Lab)
We have had an excellent debate this evening. We have had some extremely informed contributions from across the House—some short; some somewhat longer; some, indeed, quite lengthy—and the debate on the Bill will be all the richer for those varied contributions.
I would like to begin by putting on record my thanks to all Members, from both Houses, who worked on the Joint Committee considering the draft Defamation Bill. They provided excellent observations which improved the Bill to a huge extent—indeed, to an extent that anyone listening to this evening’s debate will not comprehend. I also add my thanks to those my right hon. Friend the Member for Tooting (Sadiq Khan) gave at the start of this debate to the key people and organisations—to the Libel Reform Campaign, which did fantastic work; to Dr Simon Singh, who has been mentioned by many contributors to this debate; and to all those who petitioned and lobbied for this Bill. We owe them a debt of gratitude for the work that they did and the pushing that they instigated and continue with.
This is a good Bill—it has to be, as it started life under a Labour Government. There are, however, still areas where it needs to be improved. On the assumption—a reasonable assumption, I think—that the Bill will make it to Committee, we will table a number of amendments and new clauses which we hope will make it the best it can possibly be. I hope that the Under-Secretary of State, the hon. Member for Huntingdon (Mr Djanogly) is indeed in listening mode, because the journey that this Bill has undertaken is a classic example of co-operative working. We hope that our serious and practical input in order to improve the Bill will be accepted at an early stage, unlike the challenge—I will be kind this evening—that was the Legal Aid, Sentencing and Punishment of Offenders Bill, where the Government had to endure strong persuasion, shall we say, in the other place to make the right concessions. [interruption.] I am in a very generous mood this evening. Let us have none of the tactics with this Bill that were needed in that case. Let us hope that the Minister is indeed in listening mode and will act quickly and appropriately.
As my right hon. Friend the Member for Tooting said there is much in the Bill that we are pleased about, which reflects the good work up to this point. For example, the protection offered to scientists and other academics in peer-reviewed statements and the single publication rule are good measures, as are the tidying-up provisions, such as those relating to bookshops and, despite the comments of the hon. Member for North East Somerset (Jacob Rees-Mogg)—meant, I am sure, in very good faith—to the Slander of Women Act 1891.
A number of concerns remain, however, and I am keen to highlight them this evening in order to provide the Minister and his officials with plenty of time to address them before we meet in Committee. We must not lose any opportunity to improve the Bill further in the same consensual way that we have worked on it up to now.
The first concern is the fact that the main mischief caused by the cost of defending an action and the length of time taken to resolve cases might not be addressed at all by the Bill. The Joint Committee agreed with the Government’s intention of promoting early resolution by allowing the judge to determine key issues at an initial hearing. However, the Committee went on to propose a stricter approach, as it felt that the Government’s changes did not go far enough. The Minister and his officials should revisit the Committee’s report urgently, with a view to bringing forward revised civil procedure rules and more. Those points are raised in the report; they have been well documented and discussed, and we need new proposals to be introduced urgently. Let me put on record our concern that, although the Bill tidies up the existing law and brings defamation law into the 21st century, it might not have any positive impact on the costs and delays in libel cases.
We also have grave concerns about the ability of ordinary people to get access to justice. Kate and Gerry McCann, Christopher Jefferies and others wrote an open letter to the Prime Minister during the passage of the Legal Aid, Sentencing and Punishment of Offenders Bill, as my right hon. Friend the Member for Tooting said. It is worth repeating their views, as they are so important. The letter warned:
“Parliament is on the cusp of passing a law that will grossly restrict access to justice for ordinary people in privacy and libel cases, without even any saving to the public purse. We strongly object to the passing of this unjust measure and urge you to amend it before it is too late.”
Of course, the LASPO Bill was passed. The letter continued:
“A successful libel defendant obviously does not get any damages so these reforms will prevent all but the rich from being able to defend their right to free speech against wealthy or corporate libel claimants.”
We share the concern that the changes brought about by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 will result in justice being denied to most people, who will be unable to protect their good name or to defend themselves, even when they publish the truth.
We would like the Government to be more explicit about what constitutes substantial harm. As we have heard today, this is an area of widespread concern. In Committee, we will seek far more detail on this from the Government, and I hope that they will seize the opportunity to provide it. I hope that the Minister will take that opportunity to put on record a clarification of what is substantial harm, and what it is not. One person’s substantial harm might be quite different from that of another. I shall return to that point later. We would also like the Government to be clearer about honest opinion. Again, we will test that point in Committee in order to draw out what they mean by the term. We also want them to tighten up the single publication rule, as we feel that a further test relating to the credibility of the source would improve matters further.
On the question of trial by jury, we hope that the Government will take the opportunity to be clearer—again in line with the findings of the Joint Committee—about which cases should go before the courts. The Libel Reform Campaign and many others have highlighted serious concerns about the public interest tests. Indeed, an interesting and appropriate article in The Times today raised the point that, while clause 4 seeks to replace the Reynolds defence, it does not bring the law up to date in line with the Flood judgment. I agree with the article’s view that a tick-box approach will help nobody. Moreover, there is a real risk that the factors could end up being used as hurdles or as elements to be ticked off. I know that the clause does not say that. In fact, it states that
“the matters to which the court may have regard include (amongst other matters)”,
but, given what happened in relation to Reynolds, there is a danger that those matters would become a set of hurdles or, as the article explains, a set of tick-boxes.
We have two further serious concerns. First, there is the clause that deals with the operators of websites. On the face of it, clause 5 seems a sensible approach, bringing the law into the 21st century. However, the absence of draft regulations seems sloppy and misguided. I hope the Minister will forgive me for using those words, but given the fundamental importance of regulations to the Bill, no other words do justice to the danger of their absence. The Secretary of State said that we will have to get the detail eventually. I am sorry, but that is not good enough. There is also the worrying development that libellous statements hosted on a website might remain in place because the defamed person is unable to take action against the identified author.
The Justice Secretary made great play in this morning’s media—as, indeed, did the Minister—of the fact that internet trolls would no longer be able to hide behind anonymity. That is greatly to be welcomed, but what about the internet trolls whose details are provided, thereby allowing the website operator to use that defence? What happens when the troll is in another jurisdiction? The website operator is able to use the defence of identifying the internet trolls, and that is it—the line comes down. We shall seek to amend the Bill in line with the Joint Committee’s recommendations.
Let me deal with what hon. Members have said many times is a glaring absence from the Bill: corporations. All too often, corporations are able to flex their muscle and call in their lawyers even when the author or publisher makes a justifiable statement that is fully capable of being defended. The corporate bullying must end. I am surprised that the Government have given in to brash big business rather than at least attempt to address the inequality of arms. We shall seek to bring forward a new clause to encapsulate what the Joint Committee report concluded on this important issue. Broadly, we shall seek to ensure that serious harm in the context of corporations means that where there has been or is likely to be a substantial loss of custom directly caused by the defamatory statements, the court must give permission before a libel claim can be brought. It is all in the Joint Committee report, and we have heard many Members across the Chamber say how much they welcome its work. It is incumbent on the Minister to take on board the comments of Conservative Members who say that the report is a good one that should be taken forward.
Let me comment on some of the contributions, beginning with the Lord Chancellor’s opening comments. He said that the courts would decide what counts as “serious harm”. Does that mean yet more litigation, yet more costs and yet more delay while the courts decide what it is? We need a really strong steer to avoid that. He referred to the development of new procedures to hear preliminary points and meanings before full trial. I think that is very good, but again it is all pie in the sky and yet to be done, with nothing concrete before us. As to the circumstances in which jury trials will be left to the judge, the Lord Chancellor was fairly clear; he felt it was a matter for the judges to decide when juries should be brought in, but that leaves things wide open to further litigation, further delays and further costs.
Moving on to other contributions, we heard first from the hon. Member for Mid Bedfordshire (Nadine Dorries), who spoke from personal experience about some of the appalling messages, including death threats, that she had received. She raised the issue that a matter of serious harm for one person might not necessarily be the same for another person. She also mentioned that the impact of being defamed can last a lifetime for a young person; it might impact on them and never go away. She was the first to raise the issue of looking at libel law on a regular basis. At that point, I almost heard the Minister groan. As the debate continued, we heard some alternatives to that, some of which had merit, and I shall come back to them.
My hon. Friend the Member for Bishop Auckland (Helen Goodman) made a characteristically thoughtful and serious speech. She made the excellent point that the police were not always up to speed when it came to crimes on the internet. The different police forces need to find a way of ensuring that when someone makes a complaint of this nature, it is referred to specialist officers who have the necessary knowledge and experience. Perhaps the list of matters to be considered by the police and crime commissioners should include that, as a matter of urgency.
My hon. Friend drew attention to the importance of supporting good journalism. We have heard a great deal about bad journalism today and about how it should be dealt with, but a Bill that supports good journalism should surely be encouraged. She discussed the meaning of “serious harm”, and also the difference between the website issue raised in clause 5(2) and the issue of letters pages or chat shows. I especially enjoyed her observation that the internet was not like a mediaeval forest that was beyond the law. We may well return to that point in Committee. My hon. Friend, and a number of subsequent speakers, also made the point that the No. 1 problem for a particular newspaper—as I understood it—was the threat from oligarchs who would try to sue it if any inappropriate comment was made.
The hon. Member for Morecambe and Lunesdale (David Morris) talked about the use of lower courts. When Opposition Members discussed the issue with libel experts, they expressed concern about the level of expertise in some courts, and I agree with the hon. Gentleman that one option is to establish whether some of the problems result from a lack of specialist judges.
The hon. Member for North Antrim (Ian Paisley) hit the nail on the head when he said that 21st-century libel reform was not straightforward; I do not think anyone could disagree with that. I was also impressed by his insistence that the Bill should be about the protection of people, which echoed our concern about website operators and others.
The hon. Member for South Swindon (Mr Buckland), who is not in the Chamber now, produced a lengthy analysis of the Bill.
Robert Flello
My right hon. Friend chides me for being generous again. I am merely trying to create the right atmosphere for the Committee stage, when the Minister will doubtless accept all our amendments and new clauses.
The hon. Gentleman felt that the Bill was better as a result of the Joint Committee approach, and better than it would have been had it relied solely on evidence sessions. How can I disagree? As I have said, I strongly believe that the Joint Committee’s report needs to be reflected in the Bill.
My right hon. Friend the Member for Tottenham (Mr Lammy) spoke of the balance between freedom of expression and protection of reputation. He rightly raised points about companies and corporations, and referred briefly to the consequences for jury trials.
In his substantial contribution, the hon. and learned Member for Sleaford and North Hykeham (Stephen Phillips) rightly observed that costs were driven by procedure. The draft Bill that was considered by the Joint Committee focused strongly on that point, and we need to see some movement on that from the Minister.
My hon. Friend and neighbour the Member for Newcastle-under-Lyme (Paul Farrelly) returned us to the theme of responsible journalism. He took us on a trip down memory lane when he talked about the infancy of Google and the like. He then drew attention to some of the good aspects of the Bill and some of the omissions, such as the omission of provisions relating to corporations.
Paul Farrelly
I also took the House on a trip down memory lane when I mentioned the issue of the Russian mafia and Russian oligarchs, which is ever present today.
Robert Flello
I am very grateful to my hon. Friend for that comment. I knew he would not want to miss the opportunity to add it, so I paused just long enough for him to rise to intervene. He makes a good point. We must not allow Russian mafia—criminal gangs—to suppress free speech in the UK. That is outrageous.
The right hon. Member for Carshalton and Wallington (Tom Brake) highlighted a number of areas that we need to address. I look forward to perusing Hansard tomorrow to refresh my memory so we can address them in Committee.
I was impressed by the contribution of the hon. Member for Hastings and Rye (Amber Rudd), in part because she managed to mention her constituency on so many occasions in the context of defamation law. She made a very good speech, in which she said it was too easy for the rich and powerful to stifle free speech. I entirely agree.
The hon. Member for Cambridge (Dr Huppert) is no longer in his place. He gave one of his customary long short speeches. He talked about the chilling effects that we have seen and went through quite a few cases. He hit the nail on the head when he said that clause 5 on website operators addresses a complex area that is difficult to get right. I agree.
The hon. Member for Hexham (Guy Opperman) talked about his personal experience as a mediator and libel barrister. The hon. Member for South Derbyshire (Heather Wheeler) welcomed the Bill and the cross-party approach. The hon. Member for North East Somerset said in a complementary way—with an “e” not an “i”—that, instead of having consensus, he preferred holding to the cut and thrust principle. If he serves on the Committee, he may well see plenty of cut and thrust as we ensure that the Bill is knocked into good shape. I thought he was a little unfair to his coalition colleagues, but he redeemed himself by reciting “Othello”, I think—I hope I am not wrong about that. He also made the very good point that those responsible for websites must take responsibility for the content on them. Of course there need to be protections where website operators act responsibly and do the right thing. We will need to see the regulations on that, and we have not yet had sight of them. I never thought I would hear the hon. Gentleman say he was an anti-establishmentarianist —if there is such a word—but it was interesting to hear him say so and to talk about the battle between libel and free speech.
We have had a good debate and, in view of the consensus on the key principle, we will not seek to divide the House this evening. However, I again stress to those on the Treasury Bench that they should see our acceptance of the principle and our willingness to work collaboratively as an opportunity to embrace positive improvements so that we do not rehearse the protracted warfare that gave Ministers a number of bloody noses in the other place. We do not want to see that. Instead we want to see a good Bill come out of this process.
So let us move into Committee with a genuine desire to improve this important piece of legislation further.
The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly)
We have had an extensive and informed debate in which many varied and interesting points have been raised. As the Secretary of State said in his opening speech, our core aim in introducing the Bill is to reform the law so that it strikes the right balance between the right to freedom of expression and the protection of reputation. I was impressed by the elegant description of this balance by my hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips).
I want to take this opportunity to thank the draft Bill Committee members, a number of whom have spoken today. They were very capably chaired by Lord Mawhinney, and we have valued their recommendations and careful scrutiny of the Bill. I also thank Lord Lester, whose private Member’s Bill focused attention on this important issue. I am sure that the remarks of my hon. Friend the Member for Worthing West (Sir Peter Bottomley) about the openness of the Government’s position in the Joint Committee will be well received by my noble Friend, Lord McNally, who has worked very hard on this legislation over the past year.
As the points that have been raised illustrate, there is a range of views on exactly what the balance should be and on how individual issues should be dealt with, but for the most part these are issues of nuance rather than principle. I can confirm to the hon. Member for Stoke-on-Trent South (Robert Flello) that of course I remain in listening mode and shall continue to do so throughout the Committee’s proceedings. I welcome the clear recognition from the shadow Secretary of State and Members on both sides of the House that reform of defamation is needed. I also welcome the support that has been expressed for the Bill and what we are trying to achieve with it. The Bill was described as a “burning light” by my hon. Friend the Member for South Derbyshire (Heather Wheeler).
Let me respond to some of the specific points that hon. Members have raised. Questions were raised by the hon. Member for North Antrim (Ian Paisley), the right hon. Members for Tottenham (Mr Lammy) and for Tooting (Sadiq Khan), the hon. Member for Bishop Auckland (Helen Goodman), my hon. and learned Friend the Member for Sleaford and North Hykeham and the hon. Member for Newcastle-under-Lyme (Paul Farrelly) about how far the serious harm test raises the bar for claims. As the Secretary of State indicated, it is our view that the requirement to show serious harm represents a higher hurdle than the current law. It will be a matter for the courts to determine how the test should apply in individual cases, but we wish to nudge the threshold up to deter trivial claims. No doubt we shall be discussing this issue further in Committee. Hon. Members have expressed concern that the test might require detailed evidence to be presented. We recognise that the introduction of the test might involve some front-loading of cost, but we believe it is better to resolve this issue at an early stage so that only cases involving serious harm proceed.
My hon. Friend the Member for Cambridge (Dr Huppert) has been a determined and consistent advocate for scientific research and freedoms. On his request for a strike-out power in clause 1, we took a different and wider approach than Lord Lester’s Bill on this issue. Our measures change the substantive law of defamation instead of focusing on one aspect of the procedure. Our intention is that the normal rules, as set out in the civil procedure rules, will apply. It seemed preferable to rely on those rules rather than create a new and unprecedented procedure for mandatory strike-outs. If the court decides that the serious harm test is not satisfied it will be able to use its power under the rules to strike out the claim.
On clause 2, the hon. Member for North Antrim and others have expressed concern that legislating to rename and restate the defence for justification as one of truth could lead to uncertainty about how far the new law might differ from existing law. The right hon. Member for Tottenham, the hon. Member for Newcastle-under-Lyme and my hon. and learned Friend the Member for Sleaford and North Hykeham also raised more general concerns about the Bill in the same regard. I agree that any new legislation will inevitably require interpretation and development by the courts in individual cases. However, as the Secretary of State indicated, we want to simplify and clarify the law, which has become unnecessarily complicated. We believe that the clause sets out the key principles of the defence as clearly as possible and will provide greater clarity and certainty in defamation proceedings.
Similar concerns were raised by my hon. Friend the Member for Gainsborough (Mr Leigh) regarding the new statutory defence of honest opinion and whether it would be misused by the press. Again, this is an area in which the law has become particularly complex and technical and has often led to protracted disputes. I confirm to my hon. and learned Friend the Member for Sleaford and North Hykeham that clause 3 clarifies and simplifies the law. We believe that this change will provide greater certainty and will help to avoid unnecessary litigation and cost.
On clause 4, my hon. Friend the Member for South Swindon (Mr Buckland), the right hon. Member for Tooting, the hon. Member for Bishop Auckland, the right hon. Member for Carshalton and Wallington (Tom Brake) and my hon. Friend the Member for Cambridge have expressed the view held by some that the clause might not provide strong enough protection for publications in the public interest and that instead of the defendant having to show that a publication has been made responsibly, the claimant should have to show malice or recklessness on the part of the defendant in order to defeat the defence. We share the view of the Joint Committee on the draft Bill that this would not be appropriate. It would widen the scope of the defence and not offer sufficient protection to people whose reputations had been defamed.
Our position is that the clause strikes the right balance and will provide effective protection for responsible publications, but we will be pleased to discuss the matter further in Committee, including the implications of the Flood decision. We do not consider, as suggested by the hon. Member for Bishop Auckland, that we have departed from the Reynolds defence. Clause 4 is based on existing common law and the defence established in Reynolds, and is intended to reflect the principles established in that case and subsequent case law. The essential test is whether the defendant has acted responsibly in a matter of public interest. That matches the case law and gives the court appropriate flexibility.
This is probably an appropriate time to consider the suggestion from the hon. Member for North Antrim that newspapers be required to notify people in advance about any story they propose to publish. We do not consider it appropriate to require that prior notification be given to the subjects of newspaper articles. However, the defence in clause 4 follows the Reynolds case in identifying as factors that the court can consider in deciding whether the publication was responsible, first, whether the defendant sought the claimant’s views on the statement complained of before publishing it and, secondly, whether an account of any views the claimant expressed was published with the statement.
On clause 5, many hon. Members have discussed how technology has changed the arena in which defamation operates. My hon. Friend the Member for Mid Bedfordshire (Nadine Dorries), my hon. and learned Friend the Member for Sleaford and North Hykeham, my hon. Friends the Members for Richmond Park (Zac Goldsmith) and for Northampton North (Michael Ellis), and the hon. Members for Liverpool, Walton (Steve Rotheram) and for Bishop Auckland raised important questions about the extent to which the new provisions will tackle trolling and abusive behaviour on the internet. Clause 5 establishes a new procedure that can be followed by website operators on receipt of a complaint about defamatory material on the site on which they host user-generated content. Provided that website operators comply with this procedure, they will have a defence against a civil action for defamation. The procedure focuses on putting complainants in touch with the author of allegedly defamatory material so that they can take action against the author and bring civil proceedings of defamation, if the matter cannot be resolved by other means.
It is recognised, of course, that the dead cannot be defamed, but it is also important to recognise, in response to the sad case in Liverpool mentioned by the hon. Member for Liverpool, Walton, that a range of criminal offences exist to tackle trolling and other offensive behaviour on the internet. These criminal sanctions include section 127 of the Communications Act 2003, which creates an offence of sending or causing to be sent
“by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character”.
Section 127 has been used to prosecute instances of cyber-bullying, hate crime, homophobic crime, incitement to violence, crimes committed by animal extremists, domestic violence and other sorts of threatening and abusive behaviour. Other offences, under statutes such as the Malicious Communications Act 1988, the Computer Misuse Act 1990 and the Protection from Harassment Act 1997, may apply, depending on the circumstances.
The Crown Prosecution Service will determine under which legislation to progress prosecution, depending on the circumstances of each case. Some 2,000 criminal prosecutions for trolling have occurred in the past year, but I agree with my hon. Friend the Member for Mid Bedfordshire that action must be taken, where appropriate, and that trolling can be a very nasty business indeed. She clearly explained the range of the activities involved. We are confident that this criminal legislation is being used effectively to tackle offensive behaviour, as the recent case involving Facebook demonstrates. In addition, clause 5 will help to improve the civil law in relation to defamatory postings. Our idea is to help enable the claimant to take action against the author, including anonymous trolls, at a low cost and with the possibility of avoiding the involvement of lawyers.
Paul Farrelly
I have learned in this debate that the word “troll” is being used in this way. Let us not give these people the respectability of Norse mythology. Can we not describe them as they are? Can we avoid using “troll” and just say that these are sad, irresponsible people?
Mr Djanogly
I understand and agree with the hon. Gentleman’s sentiment, however I am reflecting what is now in common usage and “troll” is a word that people will understand. Some people understand it in either the criminal or the civil context, but the point I am making is that it can be used in both contexts.
Our approach will also promote freedom of expression by helping to ensure that material is not needlessly taken down without the author being given the opportunity to defend it, as often happens now. I can confirm to my hon. Friend the Member for Cambridge that we will also be ensuring that protection is in place for whistleblowers.
Robert Flello
Will the Minister please address the issue of what happens when a defamatory statement is put on a website anonymously and the website operator then tells the person defamed who the person posting it is but they are impecunious and are out of jurisdiction? What happens then in terms of taking the statement off the website, because the website operator now has a defence?
Mr Djanogly
If the website operator has a defence, they are out of the picture. That does not stop action being taken against the anonymous troll, but that would have to be done by way of an order, which, admittedly, would be a more expensive procedure.
Nadine Dorries
I believe, and think that the shadow Minister probably does too, that the entire process whereby the responsibility is on the website owner to seek out and address the libellous or defamatory comments left by a troll will be enough to encourage that website owner to remove the comments themselves if they do not get a satisfactory answer. I know that it is not in legislation, but I believe that that even happens now and so this approach will help to reinforce that process.
Mr Djanogly
My hon. Friend makes a good point. I would be the first to admit that there are no silver bullets here. We are looking at a range of proposals that will give an array of weaponry to deal with what we consider to be a dangerous situation. Let me make it clear that the Government are committed to tackling trolling, cyber-bullying and other forms of abuse and misuse of social networking sites by working with industry, academia, charities and parenting groups to develop tools and information for users aimed at keeping society safe online.
The Government are pressing the internet industry in the UK and Europe to implement clear and simple processes for dealing with abuse online, and we have also recently reviewed our cyber-bullying policy. For the most part, social network site operators adopt sensible and responsible positions on any misuse or abuse of their services in the terms and conditions they require of their users. They support this with systems for notification of breach and removal of material in breach. This corporate responsibility of operators, aligned with collective responsibility on users to report misuse, provides the basis for self-regulation of the internet and a more immediate means of monitoring and dealing with abuse.
Many hon. Members queried when we would be publishing regulations to set out the new procedure in detail. I can say tonight that a note on the new process will be provided to the Public Bill Committee to aid its scrutiny of the Bill’s provisions, and draft regulations will be published for consideration by stakeholders in due course.
As the right hon. Member for Tooting said, we believe that extending the clause 6 protection is important in order to help encourage robust and open scientific and academic debate, and I, too, acknowledge the principled stand and ongoing participation of Dr Simon Singh in this area. In drafting the clause, we have given careful consideration to defining key elements of the peer-review process to ensure that the scope of the provisions is clear and appropriate, and we are satisfied that it is.
The hon. Member for North Antrim, among others, expressed the view that the problem of libel tourism has been exaggerated. We recognise that there are mixed views on how far libel tourism is a real problem; my hon. Friend the Member for Morecambe and Lunesdale (David Morris), among others, took the opposite view, saying that it is a serious problem. However, I point out that the number of cases alone may not accurately reflect the extent of the problem, as the threat of proceedings by wealthy foreigners and public figures can be used to stifle investigative journalism, regardless of whether cases are ultimately brought. That is a form of legal arbitrage and on balance we believe that there is a need to take action specifically to address the issue. We must lose our growing reputation as the libel capital of Europe.
As for how clause 10 will interface with the new defence for website operators under clause 5, if a website operator were to fail to follow the process and then attempt to use a clause 10 defence on the basis that they were not the author, editor or commercial publisher of the third-party material, it would be for the court to decide whether the fact that they had failed to follow the process set out in clause 5 meant that it was not reasonably practicable for the claimant to pursue the primary publisher.
The right hon. Member for Tooting, my right hon. Friend the Member for Haltemprice and Howden (Mr Davis), my hon. Friends the Members for Worthing West, for Gainsborough and for North East Somerset (Jacob Rees-Mogg) and my hon. and learned Friend the Member for Sleaford and North Hykeham discussed issues relating to a person’s reputation being decided by his or her peers in the form of a jury. I understand those views but, as my right hon. and learned Friend the Secretary of State outlined, in practice very few defamation cases now involve juries. We need to appreciate that jury trials can create practical difficulties and add significantly to the length and cost of proceedings, and that if the judge believes that a jury trial is appropriate that will still be a possibility. As my hon. Friend the Member for Maidstone and The Weald (Mrs Grant) said, the proposal should also help moves towards early settlement.
My hon. Friend the Member for South Swindon gave a lively exposition of how the move away from jury trials is part of what he described as an evolutionary process of libel law. The right hon. Member for Tottenham asked about guidelines and whether they should be included in the Bill to assist the court in the exercise of its discretion to order trial by jury. A clear majority of consultation responses considered that such guidelines would not be necessary. The courts are already familiar with exercising their discretion to order jury trial when appropriate, and we believe it would be preferable to allow them to continue to do that without specific guidance in the Bill.
My hon. Friend the Member for Stroud (Neil Carmichael), my hon. and learned Friend the Member for Sleaford and North Hykeham, the shadow Justice Secretary, the hon. Member for Newcastle-under-Lyme and others have touched on the new procedure for resolving key preliminary issues at an early stage and its relationship with costs. Let me say first to the hon. Member for Stoke-on-Trent South that we agree that this is an important issue, and I agree with the shadow Justice Secretary that if we can reduce procedure we can reduce costs.
During our initial discussions with interested parties in the summer of 2010, it became apparent that a major area of concern was the extent to which defamation proceedings can become mired in disputes over preliminary issues. That contributes substantially both to the time taken to resolve cases and to the costs involved. For example, in British Chiropractic Association v. Singh proceedings in relation to whether the words complained of were matters of fact or opinion took almost two years to resolve. When a ruling was ultimately given on the issue by the Court of Appeal the claim was withdrawn, but by that point substantial costs had been incurred and the defendant had been placed in a position of considerable uncertainty and stress over an extended period.
In the light of such concerns the Government consulted, alongside consultation on the draft Defamation Bill, on the possibility of introducing a formal new procedure in the High Court to channel all cases in which proceedings are issued through a process whereby early rulings can be given on key issues that currently contribute substantially to the length and cost of the proceedings. That would help to clarify the issues in dispute and the defences that may be available and should assist in encouraging early settlement in many cases. The practical implications of the proposal were discussed with members of the senior judiciary with experience in defamation cases and those views were taken into account by the Government in developing a skeleton outline of how the procedure could work, which was published in the consultation document.
The main preliminary issues which the outline envisaged being determined under the new procedure were whether the claim satisfies the serious harm test where this is disputed, which would enable claims failing that test to be struck out as early as possible; what the actual meaning of the words complained of is and whether that meaning is defamatory; and whether the words complained of were a statement of fact or an opinion.
It was envisaged that the procedure would be automatic in all cases where any of these issues needed to be resolved. In addition, other issues which it was considered could potentially be determined, if relevant, were whether the publication is on a matter of public interest, because an early decision on whether a matter is or is not in the public interest could help to determine whether there is any scope for the defendant to use this defence; whether the publication falls within the categories of publication in schedule 1 to the Defamation Act 1996 for which the defence of qualified privilege is available, as this would help to clarify whether it is open to the defendant to use this defence; and consideration of costs budgeting in appropriate cases, depending on the outcome of the ongoing costs budgeting pilot.
Sir Peter Bottomley
On the case of Dr Singh and the chiropractors’ action against him, the House would like to know, if not now then in Committee or on Report, that the changes which are proposed, both in the Bill and in what my hon. Friend the Minister is describing now, would have chilled the chiropractors and they would not have tried to take the bad action that they took, based on bad science and on money and bullying.
Mr Djanogly
We intend that issue to be addressed both in terms of the substantive law and in terms of the procedure.
Paul Farrelly
I was also trying to give the Minister a pause for breath when the hon. Member for Worthing West (Sir Peter Bottomley) intervened. I tabled the question on Trafigura. One of the consequences was that because of the clash between Parliament and the courts, the courts started to look at how their procedures were working. The Lord Chief Justice, Lord Judge, issued a press statement saying, in effect, “I did not realise what my courts were doing.” Similar circumstances are applicable in libel, but they have not come to a constitutional clash, which why it is so important that the Government look at civil procedure rules and make sure that the courts are managed properly from the top by the Lord Chief Justice and throughout, without our intervening in their affairs.
Mr Djanogly
I can assure the hon. Gentleman that that is already happening and forms the subject of my not infrequent meetings with the Master of the Rolls.
Sir Peter Bottomley
Following up the very important Trafigura issue, if either a solicitor or a barrister ever purports to a client or to someone on the other side that they cannot talk to their Member of Parliament about a matter of public interest, whether international, as in the case of Trafigura, or in a number of medical cases where hospitals or trusts appear to try to silence a consultant, a clinician or a nurse on the issue of patient safety, I hope the Minister will join me in saying that the standards board for the barristers or the solicitors should say, “That person is unprofessional and will be subject to discipline.”
Mr Djanogly
If someone has a problem with the advice that they receive from their professional, they can of course go to the complaints organisations.
We indicated in the consultation document that the Civil Procedure Rule Committee would be asked to consider appropriate procedural changes through secondary legislation to support the new approach. A majority of respondents on this issue were in favour of introducing a new court procedure to resolve key preliminary issues at an early stage. Many of these argued that procedural reform aimed at speeding up defamation proceedings and reducing costs is one of the most important elements of any proposed reform of the law. However, a small number of legal professionals argued that it is unnecessary and could add further complexity.
A range of comments were provided on the issues that would be suitable for determination under the procedure and on other points of detail. I can confirm to the House that we are considering these in working up detailed proposals for the Civil Procedure Rules Committee to consider.
Paul Farrelly
At a time when the country is going through some severe problems, we have more pilots in the legal profession than we have, potentially, in the RAF, determining how to cut the costs of lawyers in defamation cases. When we discussed this in the Select Committee, we came to the ludicrous conclusion that cost-capping measures in the courts led only to costs increasing because of the number of cases that were being discussed for cost-capping. It is important that the Government and the Courts Service get a grip on, I am sad to say, how judges run their own courts.
Mr Djanogly
We have been doing that, and the hon. Gentleman will appreciate that we addressed the issue to some extent in the Legal Aid, Sentencing and Punishment of Offenders Act 2012, although perhaps not to his satisfaction. As I have said, we are also consistently discussing the issue with the judiciary, because it is an important one.
These issues should not need primary legislation, which is why they do not appear in the Bill. However, I can assure the House that we are firmly committed to ensuring that they are addressed in order to reduce costs and encourage settlements and that we are taking the work forward on all these issues alongside the Bill.
With regard to the provision sought by the right hon. Member for Tottenham, the hon. Members for Bishop Auckland and for Newcastle-under-Lyme and my right hon. Friend the Member for Carshalton and Wallington, namely a specific provision requiring corporations to show financial harm, a proposal made by the Committee, we share the view that the inequality of financial means that exists when a large corporation sues or threatens smaller companies, individuals or non-governmental organisations lies at the heart of current concerns. In view of the fact that corporations are already prevented from claiming for certain types of harm, such as injury to feelings, in order to satisfy the Bill’s “serious harm” test a corporation would in practice be likely to have to demonstrate actual or likely financial harm in any event.
The right hon. Member for Tottenham, the hon. Members for Bishop Auckland and for Stoke-on-Trent South and others made observations on cost protection for claimants in defamation cases in the light of concerns raised during the passage of the Legal Aid, Sentencing and Punishment of Offenders Act. The Government’s reform of no win, no fee conditional fee agreements in that Act should not prevent strong cases from being brought. However, we recognise the concern that individuals who are not wealthy or powerful sometimes need to bring defamation or privacy cases. The Bill and the procedural reforms we intend to take forward alongside it seek to reduce the complexity and cost of defamation proceedings. In order to achieve those aims, I can confirm that we are carefully considering the issue of cost protection in defamation and privacy proceedings and will keep Parliament updated as the Bill progresses.
Continuing the theme of privacy, my hon. Friend the Member for South Swindon suggested that the law on privacy should be codified. The Government welcome the report of the Joint Committee on Privacy and Injunctions, on which he served. The Committee recommended, on a majority vote, that the law on privacy should not be codified. The Government are considering the recommendation, along with all the Committee’s other recommendations, and will publish our response in due course. My hon. Friend also queried whether section 13 of the Defamation Act 1996 should be repealed. Section 13 relates to the ability of Members of Parliament to waive privilege in relation to defamation proceedings. The Government are consulting on the issue as part of the Green Paper on privilege and consider that the issue is better examined in that context than in the Bill.
In conclusion, the Government firmly believe that reform of the law is needed to bolster free speech and ensure that the threat of libel proceedings is not used to frustrate and impede responsible investigative reporting or debate on issues of public importance, while ensuring that people whose reputations have been seriously harmed have clear and effective remedies against those responsible. I look forward to detailed scrutiny of the Bill and further constructive debate in Committee.
Question put and agreed to.
Bill accordingly read a Second time.
Defamation Bill (Programme)
Motion made, and Question put forthwith (Standing Order No. 83A(7)),
That the following provisions shall apply to the Defamation Bill:
Committal
1. The Bill shall be committed to a Public Bill Committee.
Proceedings in Public Bill Committee
2. Proceedings in the Public Bill Committee shall (so far as not previously concluded) be brought to a conclusion on Tuesday 26 June 2012.
3. The Public Bill Committee shall have leave to sit twice on the first day on which it meets.
Consideration and Third Reading
4. Proceedings on Consideration shall (so far as not previously concluded) be brought to a conclusion one hour before the moment of interruption on the day on which those proceedings are commenced.
5. Proceedings on Third Reading shall (so far as not previously concluded) be brought to a conclusion at the moment of interruption on that day.
6. Standing Order No. 83B (Programming committees) shall not apply to proceedings on Consideration and Third Reading.
Other proceedings
7. Any other proceedings on the Bill (including any proceedings on consideration of Lords Amendments or on any further messages from the Lords) may be programmed.—(Stephen Crabb.)
Question agreed to.