Defamation Bill

Helen Grant Excerpts

Wednesday 12th September 2012 Commons Chamber

[The Parliamentary Under-Secretary of State for Justice (Mrs Helen Grant)]

I thank hon. Members on both sides of the House for the kind and generous sentiments that have been directed towards me and the Under-Secretary of State for Justice, my hon. Friend the Member for Kenilworth and Southam (Jeremy Wright). My fellow new Minister has been sitting beside me for most of the afternoon, but he has just left his place. It is a great honour and privilege to stand at the Dispatch Box.

New clause 4 and other amendments in the group relate to the defence of responsible publication in the public interest, as set out in clause 4. The new clause represents a significant shift in the law towards the interests of defendants. To obtain any remedy beyond explanation, contradiction or correction, the claimant would have to prove malice—a high test that would require the claimant to prove the defendant’s state of mind, which in many cases is likely to be impossible. It could lead, effectively, to people printing what they liked and arguing it was a matter of public interest.

In his very good speech, my right hon. Friend the Member for Bermondsey and Old Southwark (Simon Hughes) mentioned the Flood case, but that does not change the core element of the defence of responsible publication. From my experience, courts will continue to interpret editorial discretion, and I therefore think that the Flood case is reflected in the Bill. My right hon. Friend also mentioned an early strike-out, and again my initial response is that courts already have that power under rule 3.4 of the civil procedure rules, which I have witnessed on numerous occasions. Indeed, such action has been threatened against me, and it can be quite intimidating.

The hon. Members for Newcastle-under-Lyme (Paul Farrelly) and for Hayes and Harlington (John McDonnell) were concerned—among other things—about the narrowness of the list of factors for consideration. The list in the Bill has been drawn flexibly. It is illustrative and not exhaustive, and in any event the court must have regard to all the circumstances of the case.

I will not comment on all the points raised today, but I recognise the wide range of opinions about clause 4 and the issues underlying them. This is a complex area about which there are well-argued and deeply held views on both sides of the House. The Ministry of Justice has a largely new ministerial team, but we are determined to get the legislation right and would therefore like to reflect further in light of the helpful points that have been raised by hon. Members in this debate and in Committee, and by stakeholders more generally. If we conclude that there is a better way forward, we will table appropriate amendments in another place.

[Sir Peter Bottomley]

I am most grateful to the hon. Lady, and may I say on behalf of hon. Members on both sides of the House that we welcome the approach that she and the Under-Secretary of State for Justice, my hon. Friend the Member for Kenilworth and Southam (Jeremy Wright), have taken in picking up this brief and this Bill?

When reflecting with advisers, and hopefully with outsiders, will she ask whether, if the Bill becomes an Act, it would be possible to dispose of the case I mentioned—El Naschie v. Macmillan, the publishers of Nature? Would it be possible to dispose early of the Rath v. Guardian case, the British Chiropractic Association v. Simon Singh, or NMT Medical’s case against Peter Wilmshurst? By the time the Bill gets to the other place and amendments come back to this House, we ought to have an understanding that cases with no merit whatsoever will be recognised as such by the courts early on.

[Mrs Grant]

I cannot comment on the details of individual cases, but if my hon. Friend writes to me, I will look at what he says.

In the light of the assurances I have given the House that the Government continue to look broadly at how a public interest defence might be framed, I hope hon. Members agree not to press their proposals to a Division.

[Simon Hughes]

I shall be brief in winding up this valuable debate. I am grateful to colleagues, who have expressed different views on how we should proceed. My hon. and learned Friend the Member for Harborough (Mr Garnier) said that it would be best to leave it to common law, but the problem with the common law argument, as he conceded, is that someone is required to go to court to take the law on and test the case. Libel and defamation cases are hugely expensive. I and many hon. Members are trying to ensure first that the law is clearer, and secondly that we protect our constituents from having to go to court to assert their rights.

The hon. Member for Hayes and Harlington (John McDonnell) argued for a differential test for those in public life and those not in public life. Those of us in public life are much better equipped and able to go to law if we want to do so. If the bar were to be lower for people in public life, so the capacity to respond would also be easier. I do not necessarily accept that that is where we want to go, but that is another debate. The bulk of my constituents and the hon. Gentleman’s are not in a position readily to go to court to defend their interests, and nor could they get an adequate remedy. The new clause therefore seeks to find a remedy outside the courts.

I hear what my hon. Friend the new Minister says about the level of evidence needed to establish malice, and therefore understand that we need to have a debate on that. However, I am encouraged by the fact that she and her colleagues are willing to draw breath, as it were, and to look at the arguments as they have been presented and at the unanswered questions that both current and previous Ministers have said they will address.

There is one last thing to say before asking the House for leave to withdraw new clause 4. Will Ministers look at the big question of the timetable for the Bill, and particularly this part of it, in the light of the Leveson report? We need to ensure that we are seen to be legislating carefully, but we would perhaps make ourselves look foolish if we tried to legislate this year or a few months into the next year in the certain knowledge that we would need to return to the matter. The House and the Government should reserve a space to legislate in the light of Leveson. It would be unacceptable for anybody in the months ahead to put the argument that we cannot return to the matter because we have addressed it in the Bill.

--- Later in debate ---

[Sir Peter Bottomley]

I am grateful to the hon. Member for Stoke-on-Trent South (Robert Flello) for raising this subject. His amendment refers to there being

“a prima facia case that the statement complained of is defamatory”.

I think that is right. People ought to ask themselves whether there is a reasonable probability that the claim will be successful. In criminal cases, people are not brought to court unless there is a 50:50 chance or more of conviction.

We need to go further than the prima facia case, however. The court ought to hold that there is defamation, that it is actionable and that it is likely that a court case would end in success for the claimant. Too many cases are brought that will clearly not be successful when they come to a full hearing. That applies not only to booksellers—the category this amendment specifically addresses—but all the other types of case about which I have been concerned.

[Mrs Grant]

Amendment 8 would add two additional hurdles to overcome before a court had jurisdiction to hear a defamation claim against someone who was not a primary publisher. We do not consider this amendment to be appropriate. It would significantly limit the circumstances in which a court would have jurisdiction to hear an action against a person who was not the author, editor or publisher of a defamatory statement. To provide that an action against a secondary publisher can only be brought where it can be proved that the secondary publisher had knowledge that the statement was defamatory and that there was no defence would raise the bar for establishing jurisdiction to a very high level, and would tip the balance too far against the interests of the claimant. It could leave them with no means of restoring their reputation.

In addition, it would be very unusual to require a court to consider the substance of a case at the same time as determining whether to grant jurisdiction for the action to be brought. On that basis, I hope the hon. Member for Stoke-on-Trent South (Robert Flello) will agree to withdraw his amendment.

[Robert Flello]

I hear what the Minister says. However, I urge her to consider the amendment again, if I am not successful in the Division I shall now seek.

Question put, That the amendment be made.