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I share the mounting concern of recent years that our defamation laws are becoming out of date, costly and over-complicated, and that they are at risk of damaging freedom of speech without affording proper protection.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
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.
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.
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.