Defamation Bill

David Lammy Excerpts

Tuesday 12th June 2012 Commons Chamber

[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.

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[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 Lammy]

Will the Secretary of State give way?

[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.

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[Sadiq Khan]

I am sure that the Justice Secretary has heard the hon. Gentleman’s intervention and will take on board the point he has made.

It is not clear either whether high-profile cases, such as that of Dr Peter Wilmshurst, to which the Chair of the Select Committee on Culture, Media and Sport referred, or that of Rachel Ehrenfeld, would have been prevented if clause 9 had been in place at the time. If the Justice Secretary or the Minister winding up the debate cannot address this issue, it will need to be looked at further in Committee.

Clause 11 removes the presumption in favour of jury trials in defamation cases. Although this reversal will, we hope, help to reduce costs and improve clarity, there is a danger in restricting jury trials, particularly where the key issue is who is telling the truth. However, the Bill still gives the court the discretion to order a jury trial where it considers that to be appropriate, which is an important safeguard. I note the comments made by the right hon. Member for Haltemprice and Howden (Mr Davis), and we expect that the Committee might want to explore the criteria for the judge to consider when deciding whether a jury trial should be ordered.

[Mr Lammy]

Although much has been said about the cost of jury trial, does my right hon. Friend agree that we would not want to give an indication in the House that this is a slippery slope or that we ought to start thinking about cutting jury trials in criminal cases? The matter was debated at length in the Joint Committee, and there are circumstances where jury trials should remain in defamation cases.

[Sadiq Khan]

I thank my right hon. Friend for his intervention and for his contribution to the Joint Committee. Of course, he is right, and the Justice Secretary will have reassured the House with his comments about criminal cases. My right hon. Friend will be aware that there are still jury trials in civil cases involving what are known as constitutional torts—malicious prosecution and false imprisonment. The provisions in clause 11 still allow a trial by one’s peers in appropriate cases. What the Committee should look into is the comments of the right hon. Member for Haltemprice and Howden about the criteria that one would expect a judge to apply. The key thing is that the presumption of a jury trial has now been removed, which will lead to a reduction in costs and, one hopes, less of a chilling effect than where the “threat” of a jury trial is hanging over a defendant, with all the additional cost that could lead to.

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[Mr David Lammy (Tottenham) (Lab)]

I am grateful for the opportunity to speak in this debate, following the small role that I played on the Joint Committee of both Houses that looked into this issue. I begin by paying tribute to the noble Lord Lester, who made a considerable contribution to this debate, and the noble Lord Mawhinney, who chaired the Committee successfully and kept our views together. We were able to produce a good report.

I want to return to some of the issues that have been left out of the Bill that is before the House, but I should begin by saying that we had a lot of debate on whether there was a need to codify the common law as it has existed on defamation. That was right and appropriate, because we should not pretend that somehow, just because we have a Bill—a Bill that looks like it has the broad support of the House, and most likely the other place too—the job will be done once it has passed through both places and the process is complete. Of course, the job will not be done. Putting the common law on a statutory footing will make it subject to much interpretation by the courts. Certain areas—in particular, serious harm and justification—will need a lot of teasing out over the months and years ahead. Therefore, the degree of certainty that we might think is contained in the legislation will probably not be in place for some time.

Nevertheless, it is right to codify this area of law at this time, if only so that ordinary citizens who are not in public life—those who are not celebrities and are not famous—who find their reputations tarnished or damaged can, as a result of what we are doing today, at least go to a piece of paper and determine for themselves what the law looks like in Britain, without having to rely on costly lawyers to interpret several different cases in order to determine whether they have any kind of claim. That must be a good thing for the general public as a whole.

This is a careful balance, and it is important absolutely to underline the freedom of expression that must cut to the heart of a democratic and civilised country. However, it is also right to say that we are living in an age in which our liberalisms need to be fully scrutinised—an age in which it is possible to be very conscious of our rights to say what we want, but not terribly conscious of our responsibility in exercising those rights. It is into that juncture that this Bill falls. We are also, I might add, living in age in which we see the results of excessive economic liberalism. We have therefore also seen companies, corporations and oligarchs use this area of law to exercise a lot of control, it seems to me, in the other direction. I want to come to that later.

We should scrutinise very carefully—and put that scrutiny on the record in Hansard—the serious harm test. It is probably more straightforward for someone in public life or a celebrity to demonstrate and explain what serious harm is to their reputation, which will have been built up and is in the public domain. However, I am concerned that the hurdle should not be so high for the average, ordinary member of the public that they have to establish the same calibre of serious harm. We ought to remember that most cases concern ordinary folk who feel defamed by, for instance, their local newspaper or a website whose focus is confined to a local area. We are talking about someone who runs a small business whose products are tarnished in public. We are talking about two partners—about an older woman, for instance, who falls in love with a younger man and lives in a village, and where things are said about the extent of that relationship. Such cases may feel parochial, but to the individuals involved they can feel major. In that sense, we need to ensure that the serious harm test is not set so high that the ordinary person trying to overcome the damage that has been done to them cannot get access to the justice they feel they deserve. I therefore hope that we see some debate in Committee, as well as on Report and in the other place, about what constitutes serious harm.

There has been a rush to push jury trial out of the door to save us money, but it is important to put on the record the fact that the public who serve on juries, and who rely on this important area of our law, are not responsible, on the whole, for those costs. They have largely been driven up by law firms, lawyers and barristers. We are now embarking on a process of no longer having a presumption of jury trial in this area of law, which is a major departure. Broadly, the decision was debated a lot in the Joint Committee, and I will go along with it. However, in an age of austerity, when we are all concerned about finances, I do not want the departure of jury trials to start creeping into the criminal law or for the argument to be extended to what must be the bedrock of our democracy. We must bear in mind that it is not the public who have driven up the costs. We should have heard more on this matter from the Secretary of State, and I hope that we will hear more at the end of the debate or in Committee about the circumstances in which jury trials will be retained. For example, if a High court judge were defamed, would we expect a jury to be retained in that case, given the presumption that it might be inappropriate to ask another judge to adjudicate in those circumstances? The Government need to set out the circumstances in which they think it appropriate to retain juries in these cases, given that reputation is a matter of public interest.

The gaping hole in the Bill, which Lord Lester examined thoroughly and which the Joint Committee debated, is the way in which it relates to corporations and companies. I am convinced that the Bill should act to limit some of the excessive powers of companies and corporations that often use these means to terrorise publications into not getting underneath the truth of what is going on in those companies. I am not convinced that a corporation or big business company is the same as an individual, or that the reputation of such institutions is the same as that of an individual. I certainly believe that, if we are to allow companies and corporations to use defamation law in this way, we ought at least to ask them to establish that they have suffered substantial financial loss, as was set out in the original Bill proposed by Lord Lester.

[Paul Farrelly]

I agree with my right hon. Friend on that point. Does he agree that equality of arms is one of the main issues in regard to the law of libel, and that there are remedies available to judges in the Defamation Act 1996 that have not been used effectively to achieve the early resolution of libel cases in order to avoid the inequality of arms being fully brought to bear in such cases, particularly those against investigative newspapers?

[Mr Lammy]

My hon. Friend is absolutely right to mention alternative dispute resolution in this regard. He will be aware that the Bill as it stands would not alter the situation that Dr Simon Singh found himself in, in the case involving the British Chiropractic Association. That should be a matter of concern to the House, and it demands debate and discussion in Committee. He will also be aware of the case of Ben Goldacre, a doctor and health writer, that of the cardiologist, Peter Wilmshurst, and that of Hardeep Singh, a journalist writing on Sikh issues. It is not entirely clear from those cases—although we have codified this area of the law, tidied up the justifications and raised the bar quite appropriately—that the position of the oligarch or corporation to challenge the idea of a balance of equity has been dealt with. The matter has been sidelined in the Bill; it has been forgotten about and we will probably not get the opportunity to return to it for some time. That is the biggest area of concern.

[Paul Farrelly]

The case of Simon Singh is a poignant one. Does my right hon. Friend agree that, in relation to that case, it was a quirk of the British legal system that allowed the British Chiropractic Association to sue in the first place? It could do so because it was an incorporated body, yet unincorporated bodies could not sue in their own name and would have had to leave it to individual members to bring a defamation case if they felt that they had been defamed individually.

[Mr Lammy]

That is a good point. It makes me think that, if we are unable to deal with the issue in this Bill, we might be able to return to it in the form of amendments to another Bill that is passing through the House. This is an important area, and it requires further scrutiny.

It is unfortunate that the Bill does not make a greater attempt to enable more alternative dispute resolution. Such practices are essential in relation to costs. What do most people want, when it has been established that they have been defamed? Most of them are not after lots of money; they simply want an apology that is visible and can be well seen. They want to establish negotiations, early on, and to come to an agreement through co-operation. It is a missed opportunity not to do more in the Bill to force people down that road, so that they can come together far earlier and avoid the costs that build up later. That is why I am concerned that everything is blamed on the jury; actually, there are other mechanisms available to reduce costs.

In the Joint Committee, we talked extensively about the level of exposure, in a civilised country, that we should expect the defamer—often a newspaper—to give to the apology that it makes, once it has been established that someone has been defamed. I am concerned that, when such apologies are published, particularly to members of the public, they occupy only the tiniest column space, lost in a wealth of other words. They are given nothing like the prominence of the original story that caused the harm.

[Zac Goldsmith]

Clause 12 goes some way to addressing that issue, in that it provides the court with the power to order a summary of its judgment to be published. Does the right hon. Gentleman agree that that clause could be strengthened if the issue of due prominence were to be included?

[Mr Lammy]

The hon. Gentleman makes that point well. This is about the prominence given to the decision, and the fact that it is often nothing like as prominent as the original story. I do not think that the Bill has cracked that problem, but I hope that, as it passes through the Committee and goes to the other place, the matter will receive further scrutiny.

Much has been said about the internet, and I shall not add to it except to say that I am truly concerned about the position of young people, and young adults, in this regard. Many of us will be aware of Facebook bullying, for example, and I remain concerned that much of what is said about young people and young adults in such forums remains out there. The ability to fail, to make mistakes and to grow up in a private arena seems to have disappeared from our society. All of that now seems to be done in public. A lot of what used to be said by young people in the pub at the age of 17 or 18 would just disappear. Now, nothing disappears. It is visible for all to see. Many of us might have exercised this when employing a researcher. It is all there, and that is a matter of huge concern. Kicking this matter into secondary legislation is a concern, because it merits hard discussion. This relates to some of the issues being raised in Leveson, and those being raised in relation to privacy. The Joint Committee conducted its deliberations against the backdrop of super-injunctions and the issues that had arisen on the Twitter network just a few months ago.

The Bill is obviously needed, and it is good, but there are elements missing. Those elements were highlighted in the work of the Joint Committee and of Lord Lester, and I hope that they will garner greater scrutiny in the weeks and months ahead.

[Mr Deputy Speaker (Mr Lindsay Hoyle)]

Stephen Phillips.