Defamation Bill

Lord Grayling Excerpts

Wednesday 12th September 2012 Commons Chamber

[The Lord Chancellor and Secretary of State for Justice (Chris Grayling)]

I beg to move, That the Bill be now read the Third time.

I am pleased to be here for this Third Reading debate. I thank my two colleagues, the Under-Secretaries of State for Justice, my hon. Friends the Members for Maidstone and The Weald (Mrs Grant) and for Kenilworth and Southam (Jeremy Wright), for their role in the debate so far, and for picking up the subject so quickly. We have all been in our jobs for only a few days. I also look forward to sparring with the shadow Secretary of State, the right hon. Member for Tooting (Sadiq Khan), in the Chamber over the coming months. I pay tribute to Members for the quality of today’s debate, which has been constructive. These are serious matters and we need to get them right.

The Bill has now proceeded through its scrutiny stages in this House. The issues that it addresses go to the core of what it means to live in a free and open society. The right to speak freely and to debate issues without fear of censure are a vital part of a democratic society. However, that freedom should not be used to damage the reputation of others without regard to the facts. Lives and careers can be destroyed by false allegations that go unanswered. The issue for our defamation laws is ultimately one of striking the right balance between the protection of freedom of expression and the protection of reputation.

The Bill reflects our view that the law is out of kilter, and that our defamation regime is out of date, costly and over-complicated. It needs urgent reform so as to offer more effective protection for freedom of speech and to stop the threat of long and costly libel proceedings being used to stifle responsible investigative reporting and scientific and academic debate. We also need to stop powerful interests overseas with little connection to the United Kingdom using the threat of British libel laws to suppress domestic criticism as part of libel tourism.

Equally, it is vital to ensure that people who have been defamed are not left without effective remedies when their reputation has been seriously harmed. It would not do to move from one extreme to the other, with sensible reform of the law giving too much licence to those who exercise freedom of expression without responsibility. The core aim of the Bill is therefore to ensure that the right balance is achieved, so that free speech is not unjustifiably impeded by actual or threatened libel proceedings, but so, too, that people who have been defamed are able to protect their reputation.

I am grateful to all right hon. and hon. Members who have taken part in the Bill’s scrutiny, not only this afternoon but on Second Reading and in Committee. I welcome the support that has been expressed from all parts of the House, during the debate today and at earlier stages, for the principles underlying the Bill and the need for reform. Inevitably, there are differences of opinion on the detail, many of which have been expressed today.

I would like to use this opportunity to explain again the Government’s approach and our position on a number of key issues. In the light of our core aim, the Bill contains a range of measures aimed at supporting freedom of expression. One of our central objectives has been to ensure that trivial and unfounded actions for defamation do not succeed. Clause 1 therefore provides that, for a statement to be defamatory, it must have caused, or be likely to cause, serious harm to the reputation of the claimant. That test raises the threshold for claims, and represents a higher hurdle than the one that currently applies. This will help to discourage trivial claims, while ensuring that claimants can still take effective action to protect their reputation when it has been seriously harmed.

Other measures through which the Bill bolsters freedom of expression include: a single publication rule, which will mean that a publisher cannot be repeatedly sued for the same material; sensible action to address libel tourism, which has caused considerable harm to this country’s reputation around the world; and greater protection for website operators and for other secondary publishers, such as local booksellers and newsagents.

In addition to those general measures, the Bill takes specific steps to encourage robust scientific and academic debate by creating a new defence against libel for peer-reviewed material in scientific and academic journals, and by extending qualified privilege to reports of scientific and academic conferences. Given the work that my right hon. Friend the Minister for Universities and Science is doing to promote science in this country, the more we can send messages that we value scientific research in this country, the better.

The Bill provides simpler and clearer defences to those accused of defamation, and ensures that they are available outside mainstream media cases. One way in which that is achieved is through the creation of new statutory defences of honest opinion and truth to replace the existing common-law defences.

Alongside those new defences, the Bill introduces a new statutory defence of responsible publication in the public interest, which is based on the common-law defence that has been developed by the courts, initially in the case of Reynolds v. Times Newspapers, and more recently in cases such as Flood v. Times Newspapers. We recognise the concerns from differing perspectives that have been expressed about the measure, so let me reiterate a point that the Under-Secretary of State for Justice, my hon. Friend the Member for Maidstone and The Weald, made earlier. This ministerial team has come to these issues relatively freshly in the past few days. We are not closed-minded, and the important thing is to get this measure right. Although we did not accept the amendments that were considered today, I want to send a clear message that we are open to continued discussions. We are happy to table Government amendments in the other place if that would be appropriate and prudent to improve the quality of the Bill. I am not saying that we will accept every proposal on the table, but we are open to continuing discussions on the Bill and to making changes so that we try to ensure that we get it absolutely right.

Another focus of debate has been the provisions in clause 5 to deal with responsibility for publications on the internet, which is an aspect of our current regime that is genuinely in need of modernisation. Clause 5 gives a defence to website operators in relation to material posted by users of sites that they host. To maintain the defence, the operators will have to comply with a new procedure aimed at ensuring that complaints can be directed to the authors of the material—that is really important—but there must be protection for operators who are doing the right thing. We have made amendments to clarify a number of points of detail in the clause, and we will be seeking views on regulations to support the new process in due course.

Our approach will stop website operators from being unfairly exposed to liability in defamation proceedings while still encouraging them to behave responsibly. It will help freedom of expression by ensuring that material is not simply taken down without the author having an opportunity to express his or her views, which frequently happens now, but it will still ensure that people who have had their reputation seriously harmed online can take action against the person who is truly responsible, not the intermediary. In tandem with that, clause 10 will ensure that secondary publishers such as booksellers and newsagents are not unfairly targeted and that action is taken against the primary publisher whenever possible.

Let me be clear that while we are determined to protect and enhance freedom of expression, we are also determined to ensure that there is no free-for-all. This is not open season for making defamatory comments with no fear of redress. To ensure that a fair balance is achieved between the interests of claimants and defendants, it is important that effective remedies are available for those who have been defamed, so clause 12 adds to existing remedies by setting out provisions extending the courts’ existing power to order the publication of a summary of its judgment to ensure that, when appropriate, a meaningful public clarification can be given that a story was wrong.

I emphasise again our firm commitment to reducing the cost of defamation proceedings, which has been a barrier to people who have found themselves in problematic situations. Clause 11, which removes the presumption in favour of jury trial, will help with that by enabling key issues such as the meaning of allegedly defamatory material to be decided by a judge at an early stage. Allied with that, we are taking forward work on procedural changes to facilitate the early resolution of key issues, and we will be considering how best to encourage alternative means of resolving disputes, such as mediation, to encourage settlements and prevent unnecessary litigation.

I thank Opposition Members, especially the hon. Member for Stoke-on-Trent South (Robert Flello), for the measured way in which the Bill’s proceedings have been conducted. We will not agree about every aspect of the Bill, but such debates are valuable to ensure that we get this important measure right. The Bill’s consideration has been constructive and thorough. We think that the Bill sets out a balanced and fair package of measures that will allow debate on matters of public importance to thrive. We are open to continued debate and dialogue in the other place to ensure that we get the Bill right but, above all, we must make sure that we provide appropriate remedies for those who have been defamed.

--- Later in debate ---

[Mr Edward Garnier]

I will not follow the same acerbic path as the right hon. Member for Rotherham (Mr MacShane).

[Chris Grayling]

I am not sure whether this is the appropriate time, but I am sure that the whole House would like to join me in congratulating my hon. and learned Friend on his knighthood.

[Mr Garnier]

In parenthesis to what I was saying about the right hon. Member for Rotherham, I thank my right hon. Friend the Secretary of State for Justice for his kind remarks and congratulate him on his new position. I congratulated the new Under-Secretaries of State, my hon. Friends the Members for Kenilworth and Southam (Jeremy Wright) and for Maidstone and The Weald (Mrs Grant) earlier this afternoon. If my right hon. Friend maintains the tone that he adopted during his speech, this Bill will not only be improved, but markedly so. I am grateful for the stance that he took, which was in marked contrast to that taken by the right hon. Member for Rotherham, who thought it amusing, no doubt, to make personal remarks about others who cannot protect themselves here; but let us leave that there.

I also thank the right hon. Member for Tooting (Sadiq Khan), the shadow Secretary of State for his words and the approach that he and his Front-Bench team will take as the Bill goes to the other place. There is now an opportunity to develop a new defamation Act that will meet some apparent needs, such as how the law is applied and libels dealt with in relation to the internet. It is time to deal with such things.

I have noted on my copy of the Bill something that my hon. Friend the Member for Worthing West (Sir Peter Bottomley) said earlier about clause 1. As drafted, the clause confuses what is defamatory and the consequences of a defamatory statement. I hope that by the time the Bill becomes an Act, the clause will read: “A defamatory statement is not actionable unless its publication has caused, or is likely to cause, serious harm to the reputation of the claimant”. Many things are defamatory that might not cause much damage, and many things are not very defamatory but can cause disproportionate damage. The wording that my hon. Friend and I have coincidently come up with deals with that point. I dare say that others will think more carefully about that as the Bill moves forward.

On the issue of truth and honest opinion, the way the Bill is constructed is sensible. In my opinion, the law did not need changing but, if it is to be changed, clauses 2 and 3 deal with it.

I have said what I had to say about clause 4 and the Reynolds defence. I want briefly to talk about clause 6. There has been a huge amount of campaigning from various groups, such as PEN, Sense about Science and so forth, largely based on the case of the chiropractors against Simon Singh. I will not go into the facts of the case. Much of it was misunderstood, but the nub of the case was this: did the words complained about constitute allegations of fact or comment? That does not matter, because the argument and the campaign decided that academic criticism should almost be free from the law of libel.

Once we have got over that concern, we need to think more carefully about whether learned societies, which are not corporate bodies or profit-making companies, should have a right to sue in damages. We no longer allow local authorities to sue for damage to their governing reputation. Thirty five years ago, I used to get injunctions, for goodness’ sake, on behalf of local authorities, as corporate bodies that felt that they had been defamed by the local paper. Looking back, it is ridiculous to think that the Derbyshire county council case was not decided earlier, but it was not. For some decades now, it has not been possible for local authorities to sue in defamation. I rather suspect that the royal college of this, that or the other should not be allowed to sue either, although I must distinguish between that and the right of presidents and other officers of those associations to bring a personal action, if they are defamed.