Defamation Bill

Debate between Lord Garnier and Robert Flello

Wednesday 24th April 2013 Commons Chamber

[Mrs Grant]

I am sure that my hon. and learned Friend will go into details about the motion that he tabled, but as we have made clear, we think it is helpful that there will be a direct link between serious harm and serious financial loss. That will make the situation absolutely clear to those wishing to bring an action.

The second reason why Lords amendment 2B is preferable to the earlier Lords amendment 2 is that the term that we have used to define those who will be subject to the requirement—

“a body that trades for profit”—

is a much clearer and simpler definition. Those are the bodies about which people have expressed concern, so we have phrased the amendment specifically and directly to meet those concerns.

I believe that the Lords amendment represents an effective and proportionate approach that addresses the concerns that have been expressed in this House and elsewhere. I urge the House to support it.

[Robert Flello (Stoke-on-Trent South) (Lab)]

Thanks to a lot of hard work—especially in the other place, it has to be said—the Bill is now in a much better place. It is still far from perfect, sadly, which is a huge shame. It could have been perfect and a marvel to behold, but sadly the to-do list in the Bill includes early strike-out, website operator regulations and clarification for booksellers of the innocent dissemination rules, about which they were concerned. It also includes costs, which are a strange case, because we are really no further forward on them.

Indeed, we are left in a wholly unsatisfactory place. The last-minute announcement of a consultation on costs over the summer shows how sloppily this Government have treated parts of the Defamation Bill. The mess in respect of defamation, Leveson and the Legal Aid, Sentencing and Punishment of Offenders Act 2012 means in future people in a similar position to the Dowlers, Simon Singh and Peter Wilmshurst who will fight defamation cases will probably be in a worse position on costs than they would have been had the Government not got their hands on this legislation. Despite the promises that were made during the passage of the LASPO Act, costs is a major issue, and it should have been dealt with properly before this Bill returned to the Chamber.

The Minister commented on extending the Derbyshire principle to private companies. It is estimated that, following this Government’s privatisation agenda, in the NHS alone private companies will take over £16 billion- worth of Government contracts to provide services previously carried out by the public sector. Those services will go to private companies that use the law to chill debate in a way that the NHS cannot. Atos frequently suppresses disquiet, and Baroness Hayter cited Serco in the other place yesterday.

I hope the judiciary is listening to this debate and has listened to some of the other debates, because as Ministers both in this House and the other place have repeatedly said, the courts should further develop the Derbyshire principle in line with the will of Parliament. That is an unsatisfactory position, however, and this is on the to-do list of things that would have improved the Bill dramatically, but I hope the courts will now extend Derbyshire to contracts between the private sector and the Government or local authorities, because that is in line with the will of this House. [Interruption.] The Minister has commented on that, as I have said.

It is thanks to Opposition Members that the Bill has been improved. No matter what is claimed on the Liberal Democrat Voice website, not once have the Lib Dems backed us against the Government. Indeed, yesterday in the other place in the vote on the Derbyshire aspect of what was amendment 2—[Interruption.] The Minister keeps chuntering about Derbyshire, but the issue here is clearly that the will of this House has been expressed on many occasions, but thanks to the Liberal Democrats supporting the Government, we are not able to take that forward. It is important to put that on the record. No matter what they say, it is all talk and no action from the Liberal Democrats.

This is now a better Bill, but it is not the best it could be, and we will need to return to it after Labour is re-elected to government in 2015—or sooner, I hope. It is the best we can expect at present, however, and that is a shame. I am disappointed—and also surprised, although perhaps I should not be—that the hon. and learned Member for Harborough (Sir Edward Garnier) has introduced his proposal. We will hear his observations on this matter in a few moments. We will decide whether what is before us is the best we can get today after we have heard the Minister’s final comments.

[Sir Edward Garnier]

I must disappoint the hon. Member for Stoke-on-Trent South (Robert Flello) because I do not think my motion has been selected. None the less, I am not prevented from—and nor shall I be inhibited from—saying a few things about where we are now.

There are plenty of aspects of the Defamation Bill—which has been chuntering away in the background in this House and the other place for a few years now—that are commendable, and other aspects that are utterly harmless; they will not do any good, but neither will they do any harm. I am disappointed as well, however—although I suppose that might partly be to do with my having been first elected to this House 21 years ago and having been here too long—that the coalition Government have allowed themselves to create the law of England through a series of backdoor deals, rather than through any rational and coherent thought.

I think the hon. Gentleman largely agrees with me about where we are now with this Bill, as, I suspect, does my hon. Friend the Minister, but she is in a difficult place and I sympathise with her about that. It is a pity that the Secretary of State for Justice is not here to defend where we are now and to speak up for the Bill for which he has responsibility on behalf of the Government.

Last week my hon. Friend and I were in agreement; this week we are not. Last week the Government whipped coalition Members to support what I and my hon. Friend were advocating—that it is not in the public interest to have a financial damage hurdle for companies to overcome that want to bring proceedings in libel. This week, the Government have changed their mind—or have had their mind changed for them. I am all for people changing their mind if the circumstances or evidence supports that. What I find intolerable—and what I think amounts to a form of incoherence and political feebleness, and which is little short of intellectual dishonesty—is for a Government to march their troops up the hill one week and then to rush down the hill the next week saying, “We didn’t really mean it last week,” or “We had not really thought about it,” or “We are doing this for no other reason than that we are under political pressure from A, B or C, and we have decided to ask our Government troops to do something else.”

--- Later in debate ---

[Robert Flello]

Would the hon. and learned Gentleman not accept, however, that what we hear time and time again is that cases do not get to court because of the bullying by corporations at an early stage? People give in straight away or, more often—as in the Serco case, which I think Baroness Hayter raised yesterday in the other place—newspapers face the difficult decision of whether to pursue something that might end up being challenged, even if they are citing the truth.

[Sir Edward Garnier]

The hon. Gentleman no doubt makes a correct factual point, but I think he exaggerates it. The number of cases involving corporate claimants is small and the damages they recover, absent special damages, is low. Damages to trading reputation alone probably attract £20,000 at the top end and usually no more than £10,000, so we are not talking about hugely extravagant damages claims.

Allegations of bullying can be made against anybody who has more money than the person they are suing. Jimmy Goldsmith, now long dead, sued about 100 distributors—I was involved in the case in a junior capacity—such as WH Smith, Menzies and so forth. He issued proceedings in his dispute with Private Eye. It was suggested by those defendants that he was doing it to shut them down—to prevent them from distributing a newspaper.