European Union (Withdrawal) Bill

Paul Farrelly Excerpts

Committee: 7th sitting: House of Commons
Wednesday 13th December 2017 Commons Chamber

[Paul Farrelly (Newcastle-under-Lyme) (Lab)]

Has my right hon. Friend given any thought to the consequences of the possibility, under the Government’s proposed procedure, of this House voting in favour but the other place voting against the motion?

[Yvette Cooper]

That is clearly a possibility, but I think we should trust in the maturity of Parliament. It is possible for people to vote in different ways, but we have long-standing processes between our two Houses for resolving differences and debating them. My problem is that we are not actually being given the opportunity to have those proper meaningful votes through legislation, and instead we just have these motions, which have no constitutional status.

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[Paul Farrelly]

Is not the advantage of the right hon. and learned Gentleman’s very helpful amendment that it would give certainty? It would nail down, in black and white, what we have agreed and would place a legal responsibility on the Government. We would then avoid a situation whereby what people think has been agreed simply becomes a statement of intent within a matter of hours and days.

[Mr Grieve]

I agree with the hon. Gentleman. I hope that I will be able to develop some of those points in a moment.

As was rightly said by my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), the Government had a notion when this debate started that it was possible to pull out of the European Union by use of the royal prerogative. Fortunately, time, common sense, debate and a small amount of judicial intervention has pointed out that that is not possible. As a consequence, my hon. Friends on the Treasury Bench have correctly begun to understand that in fact there has to be a proper process. I appreciate the points that have been made about a meaningful vote and how we can actually get that in the context of Brexit; it is a real, live issue. Nevertheless, I greatly welcome the written ministerial statement, which sets out what appears to be a constitutionally tenable process for Parliament approving or considering the deal by motion, and then moving on to implement the deal by primary legislation.

Of course, the Government know that they must proceed by primary legislation because, in view of the comments during the Miller case, it is blindingly apparent that there must be a serious risk of legal uncertainty if anything other than a statute were to be used to take us out of the EU at the end. That is the last thing that my right hon. Friends on the Treasury Bench should want, because that will cause even more trouble and difficulty than they already have in the challenges they have to face.

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[Hilary Benn]

The hon. Gentleman anticipates precisely the point that I was going to make—[Interruption.] I was. As we have already heard, all the Ministers and Prime Ministers who negotiate in this process will say at some point, either in the main forum or in other discussions, “I’ll never get this through my Parliament.” That is the accountability we are talking about. It is called democracy, and it is really important that Ministers, Prime Ministers and negotiators have that thought in their minds when they are negotiating on behalf of the country and the House. In such circumstances, I think the House would first want to ask why we were facing no deal, and it might well wish to give the Government fresh negotiating instructions. The House might want to tell the Government to go back in and say, “On reflection, we would like to suggest that we do the following.” There must be sufficient time for that to take place if we are going to get a reasonable deal.

Another point I want to make—I am conscious, Sir David, of what you said about the time—is that Ministers need to understand why they are having such difficulty with this fundamental debate on the Bill. It has to do with the history of the Government’s handling of the whole process. At every single stage, this House has had to demand our role and our voice. I remember the answer when people first asked what the Government’s negotiating objectives were: “Brexit means Brexit.” When a follow-up question was asked, we were told—

[Paul Farrelly]

A red, white and blue Brexit.

[Hilary Benn]

I am still wrestling with the concept of a red, white and blue Brexit, and I did not find it very enlightening.

The second answer was, “No running commentary,” but that eventually had to give way to the Lancaster House speech and a White Paper. Then we asked, “Will Parliament get a vote?” Almost exactly a year ago, when the Prime Minister last appeared before the Liaison Committee, I asked her that question. She was unwilling to give me a commitment on that occasion, but we all pressed, and in the end the Government conceded that there would be a vote.

We argued that there would need to be separate primary legislation to implement the withdrawal agreement, but what did the Government do? They produced this Bill, which says, “No, no. We’ll just do it all by statutory instrument.” That was until amendment 7 appeared on the horizon, at which point the Government changed their mind. If the Committee insists, as I hope it will, on amendment 7 later today, that will be because of our experience of the Government’s handling of the Bill so far. They have not acted in the spirit of seeking consensus, even though the Prime Minister said earlier that that was what she wanted to achieve.

The final point I want to make is simply this. Parliament has no intention of being a bystander in this process. We intend to be a participant, as I have said on a number of occasions, because this decision affects every part of the country, every business and every family. Today’s debate and vote are all about control, which must ultimately rest not in Ministers’ hands but in our hands. It is up to us to make sure that that happens.

European Union (Withdrawal) Bill

Paul Farrelly Excerpts

Committee: 1st sitting: House of Commons
Tuesday 14th November 2017 Commons Chamber

[Frank Field]

I rise to speak to the new clause in my name and all the other names that still remain on the amendment paper. Although I am limited to speaking to new clause 49, it is linked to new clauses 50, 51 and 52, for reasons that I will develop.

I wish to begin by declaring my sentiments in tabling this new clause and supporting the new clauses that are umbilically attached to it. I am a reluctant Brexiteer. I am too old to feel that I was born to bring us out of Europe, and I have not had one of those evangelical revivals in thinking that somehow life began again once we entered the Common Market and that my aim, purpose, being, and everything I breathed was towards getting us out of that organisation. That is not so.

In my own constituency and in the small amount of work I did nationally, I stressed that things were on a balance: we had to make a decision about Europe. We did not need more facts about Europe, but had to draw on our very natures—all that we had been taught in our culture and where, in our very being, we felt we stood in this country—to make the decision about whether we wished to leave or not.

[Paul Farrelly (Newcastle-under-Lyme) (Lab)]

On a point of order, Mr Hoyle. In this new clause we are debating an exit date of 30 March 2019, yet grouped with it there are Government amendments to be voted on at a later date that put the exit date at 11 pm on 29 March 2019. There is a difference of an hour, and as far as I am aware the clocks only go forward on Sunday 31 March. Could you give some guidance to the movers of these amendments so that the arch-Brexiteers on both sides get their clocks and house in order?

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[Frank Field]

I would also say—

[Paul Farrelly]

Will my right hon. Friend give way?

[The Chairman]

That includes Mr Farrelly, who has already had a good start to the day. Let us not continue in the same way.

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[Frank Field]

If I did, it would mean that the voters of Birkenhead did not have wisdom, which is the very opposite of my hon. Friend’s point. I am not going to put my head in that noose.

[Paul Farrelly]

Will my right hon. Friend give way?

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[Frank Field]

I can hardly finish a sentence. To those to whom I have given way, I will not give way again until much later in my speech.

[Paul Farrelly]

My right hon. Friend has not given way to me.

[Frank Field]

I did give way to my hon. Friend.

[Paul Farrelly]

It was a point of order.

[Frank Field]

Well, try another point of order and see if it works.

I have a sense of disappointment. We have ceased the aerial bombardment of this Bill, and we are now engaged in hand-to-hand fighting over the nature of our leaving. The sentiments of my hon. Friend the Member for Wirral South (Alison McGovern), my constituency neighbour, about our trying to steer this debate in the national interest are crucial.

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[Paul Farrelly]

Will my right hon. Friend give way?

[Frank Field]

No, my hon. Friend has had one intervention via a point of order, and I think that is it for him.

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[Paul Blomfield]

Clearly, the transitional period is a bridge between where we are now and where we will be once we have left the European Union. The hon. Gentleman’s point is not relevant to the point I am seeking to make.

[Paul Farrelly]

I wanted to make this intervention on my right hon. Friend the Member for Birkenhead (Frank Field), but he would not take it.

I commend the speech of my hon. Friend the Member for Sheffield Central (Paul Blomfield), and I seek his opinion on new clause 49. The new clause is linked to other new clauses, but if it is agreed there is no guarantee that the other new clauses will be agreed. Passing new clause 49 would therefore do a grave disservice to this country. Will he make clear the Opposition Front Bench’s position on new clause 49?

[Paul Blomfield]

I am happy to clarify that we oppose new clause 49.

Whether in relation to new clause 49 or to the Government’s amendments, closing down the opportunity for effective transitional arrangements is deeply self-harming.

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[Paul Farrelly]

I welcome the amendment tabled by the right hon. and learned Gentleman that would remove the Alice “Through the Looking-Glass” absurdity of there being different exit days for different purposes. I was an early signatory to all his amendments because they are eminently sensible. The right hon. and learned Member for Rushcliffe (Mr Clarke) described entertainingly the reasons for the remarkable metamorphosis of the Bill, from one that allowed Ministers to name an exit day or different days by regulations into one that names a day and a specific time. It was a sop to the denizens of what he called the fourth row below the Gangway. Has the right hon. and learned Member for Beaconsfield reflected on what such a fundamental change signals to our partners in the European Union about how serious we are and how carefully we have thought through this crucial process?

[Mr Grieve]

There is no doubt that some of the problems we have are not going to be helpful in our negotiation. Equally, it is right to say that the more we can have mature, considered and sensible debate in this House, the more we improve our ability to negotiate with our EU partners.

I have tabled a number of amendments. As with all amendments, some are multiple choice—we have to do this in this House, because it is how we go about looking at and examining legislation—and some are probing amendments. Some are, in my view, more important than others. I tabled the one that hon. Gentleman highlights because the Government did not really explain that they wanted multiple exit dates. I wanted to tease out why and to suggest that one exit date might be better because of the consequences for the use of Henry VIII powers thereafter, but there might actually be a justification for what the Government are doing. All that needs to be worked through in the legislation, and that is what I have sought to do.

I say to my right hon. and hon. Friends on the Treasury Bench that over past weeks we have had some really sensible, constructive discussions on some of the areas covered by the amendments that I have tabled. I hope very much indeed that we can achieve some degree of consensus, in which case some of the amendments, whether on triage or the way we treat retained EU law, might not be required. I do not wish to get diverted into all that; I shall come back to it in later debates. The trouble is—I repeat this—that it all gets marred by events such as those last Friday, when extraordinary amendments are suddenly magicked out of the blue that simply do not make any sense at all.

When I read the amendments and those consequential on them, which I must say I saw only this morning, I saw another problem: as has already been highlighted, one of the consequentials seemed to me to totally undermine the purpose of the main amendment, to the point where the conspiracy theorist in me made me think it was a sort of double deceit or double bluff—that it was intended in some way to give the impression to some of my right hon. and hon. Friends who really worry about this that they were being offered this tablet of stone on our departure, but it was in fact teasingly capable of being shifted. My hon. and learned Friend the Solicitor General sent me a text earlier that said that I was mistaken and that that was not the intention—that it was the very reverse.

I am not a parliamentary draftsman, and I know that there are always different ways in which an amendment to a statute can be read. I remain of the view, though, that the wording is very peculiar indeed if the intention is to exclude the possibility of playing around with the exit date, which is being offered as a talisman. I must say to my hon. and learned Friend the Solicitor General that I did naughtily begin to wonder whether in fact the parliamentary draftsman was so appalled at the folly of what the Government were doing that he had sneakily altered amendment 383 to try to offer them a lifeline in case they came to regret what they had done. I am sure that that is being very unfair to the parliamentary draftsman, whom I know always does what is requested of him or her.

European Union (Withdrawal) Bill

Paul Farrelly Excerpts

2nd reading: House of Commons
Monday 11th September 2017 Commons Chamber

[Bill Wiggin (North Herefordshire) (Con)]

I have been in the House since 2001 and have, I dare say, manufactured a fair amount of indignation about the legislation of previous Governments, but things are different today. I respect the Opposition’s arguments—they are absolutely right to raise them, and their concerns are valid and should be considered—but we are in the middle of a negotiation and my constituents constantly ask me, “What is going to happen?” We, as a country, are being pitted against our former partners in a negotiation and if it goes wrong, that will cost us billions of pounds and deny us access to markets. This is not the time for us to be dancing on the head of a pin about the details of delegated legislation. How many delegated legislation Committees have hon. Members sat through? Members will know about the countless rubber-stamping of EU directives. I have seen it myself, and the worst one was the directive about alternative investments. The impact assessment stated that it had a bill of £8 billion, but neither Front-Bench team seemed to think it at all important. Delegated legislation has been going wrong for decades. I will accept that the Bill may not be perfect, but it is right that we pull together at a moment like this—mid-negotiation—because there will be chances to put this Bill right in Committee.

I rather agreed with the hon. Member for Bath (Wera Hobhouse) when she said that our constituents do not want to swap faceless bureaucrats in Europe for faceless bureaucrats in Whitehall, but they are not doing that; our bureaucrats have faces. We know who they are, and they are accountable to us.

[Paul Farrelly (Newcastle-under-Lyme) (Lab)]

As a former editor, may I suggest that the Brexit Secretary sits down over the recess in a dark or light room with my right hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer) and the right hon. and learned Members for Beaconsfield (Mr Grieve) and for Rushcliffe (Mr Clarke) to produce something that will go through the House more quickly and with more unity than this Bill?

[Bill Wiggin]

I rather hope that the Brexit Secretary will concentrate on negotiating our departure rather than on sitting in darkened rooms, or perhaps that is what he is doing—who knows?

Returning to the main thrust of what is going on, we need a unified, sensible piece of legislation, and we must support the Government, get the legislation through and then sort out our differences. Support for the sake of it is wrong, but it is absolutely the right thing at this particular time and at this particular stage in the legislation. It is what our constituents want and expect.

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[Paul Farrelly (Newcastle-under-Lyme) (Lab)]

I congratulate the shadow Secretary of State, my right hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer), on the common-sense position that Labour has adopted on EU withdrawal and on this democratic travesty of a Bill. We certainly look forward to seeing him in my constituency, where his appearance next month is eagerly awaited.

Following the referendum, it is sadly clear that we will end our formal membership of the European Union. The question is how and what the future holds. As far as our country’s future relationship with our neighbours is concerned, Brexit should never become synonymous with “break it”, which, thankfully, only a minority of people want. There has to be a transitional agreement with the EU, as it will be impossible to reach a comprehensive deal at all levels by the end of March 2019. Common sense says that such an agreement should include our remaining in the single market and the customs union. The Prime Minister’s policy stance means that the Bill is inimical to that common-sense course. That is the effect of clause 9, and that is a good, substantial reason to oppose the Bill.

The Government have not yet allowed a meaningful vote in Parliament on the terms of our withdrawal before the Bill implements those terms. That is another good, substantial reason to oppose the Bill. I voted consistently against triggering article 50 in the absence of assurances about that, about the rights of EU nationals who are already here and of our citizens on the continent, and about much more besides.

Like the right hon. and learned Member for Rushcliffe (Mr Clarke), I did not vote for the referendum legislation in the first place, because I thought it was a thoroughly bad idea, as it is certainly proving. I certainly will not vote to give this dreadful Bill a Second Reading tonight, but I will respect the referendum result by voting for the reasoned amendment. This flawed piece of legislation, with its flawed approach, needs to go back to the drawing board and return in better shape in October.

I will not dwell on clause 7 or any other clauses for too long—they have been well and truly dissected by many good speeches already—but I will show my constituents, to whom I will have to explain my votes, that I have indeed read the Bill by saying that when I got down to clause 7(2)(f)(ii), my jaw, which I had already prised off the ground, bounced off terra firma again. I will explain to my constituents why. To take one example, that clause proposes—in a modern parliamentary democracy, not a feudal, despotic monarchy—that a Minister of the Crown will have the power to issue regulations, which could not be changed, to correct parts of law that he or she does not consider

“it is appropriate to retain”.

And so the Bill goes on. That is not just profoundly undemocratic; as hon. Members have already pointed out, that approach to vesting such sweeping powers and discretion in this particular Executive flies in the face of the message sent by the British people in June.

The Prime Minister called that opportunistic, unnecessary election, confident that it would deliver her an increased majority, a highly personalised vote of confidence and a mandate to do what she pleased. But she was rumbled and found wanting—it did not. The country said, “No way” to “My way or the highway.” Our country would certainly not want us to vest in a minority Government the powers in the Bill, which might affect so many lives with minimal parliamentary oversight. If we do grant them, people will ask us—they are already—what is the purpose of electing MPs in the first place.

Let us take a look at some of the Ministers of the Crown whose sparkling judgment and impeccable intentions we are asked to trust. We are told that they would include in a blizzard of regulations only technical amendments and would not try to slip through anything more fundamental or controversial. As examples, let us take the right hon. Member for Surrey Heath (Michael Gove) and his one-time friend then victim, the right hon. Member for Uxbridge and South Ruislip (Boris Johnson). At the very top of the tree, our people gave their verdict in the general election on the Prime Minister’s powers of judgment. Every fortnight, there is a very funny column in Private Eye from the headmistress of “St Theresa’s Independent State Grammar School for Girls (and Boys)” now incorporating the “William III Orange Academy”. Just where are the two right hon. Gentlemen I mentioned who gave such a tour de force of alternative facts with bravado during the referendum? Well, they are back at the heart of the staffroom. What successful school rewards bad behaviour? It would be in special measures. What governing body would put the sort of trust that the Bill asks for in such a headmistress and her senior—I use the term loosely—“leadership team”?

[Ian Paisley]

The hon. Gentleman always makes good arguments, but is he actually telling us that we should just continue to accept European directives over which we have absolutely no say whatsoever? At least we can elect and change the Government here.

[Paul Farrelly]

The Bill asks us to transfer to the Executive what the hon. Gentleman considers a flaw without this Parliament having much of a say in what may happen. There are good reasons to oppose the Bill on the basis of clause 9 and the lack of a meaningful vote in Parliament—the Bill would allow the Government to get around that.

To continue the school metaphor, the Bill is not only unsatisfactory and in need of improvement, but wholly inadequate. The Government need to go back to the drawing board and rethink their approach. There is no mandate for a hard, cliff-edge Brexit or for shredding long-won relationships with the other 27 countries of the European Union, nor is there a mandate for a hard transition. There is certainly no mandate to hand the powers in the Bill to a minority Government and a caretaker Prime Minister. I hope that my colleagues and concerned Members on both sides of the House will vote against the Bill. Not to do so would give the Government a strong signal that they can get away with anything they like.

Transitional State Pension Arrangements for Women

Paul Farrelly Excerpts

Monday 1st February 2016 Westminster Hall

[Helen Jones]

Many women are losing out on their pensions in all sorts of ways, not least because of the change in the retirement age. One woman who wrote to me has, like many of those I have heard from, worked all her life. She suddenly found out that rather than her retirement age being 62, it was going to be 65. She said:

“I am really annoyed with the Government’s lack of respect for those of us that have worked hard all our lives.”

The phrase “lack of respect” sums up the situation. There has been failure to give proper notification—sometimes there has been no notification—a failure to understand that many of the women affected were working in low-paid jobs all their lives, a failure to understand that women could not change their plans at short notice and that many of them would have to rely on their husband’s pension, and a total failure to see the impact of the legislation on those real people. Many of these people are now living in poverty or working for longer in low-paid jobs, while many were made redundant in their early 60s and cannot get other employment.

[Paul Farrelly (Newcastle-under-Lyme) (Lab)]

Will my hon. Friend give way?

[Helen Jones]

I will give way once more and then make some progress.

[Paul Farrelly]

I congratulate my hon. Friend on her speech. Has she been able to obtain from the Treasury an estimate of the saving to its coffers due to this acceleration of equalisation? It seems to me and many others that, alongside measures such as the restriction to the lifetime allowance, this is part of the Chancellor’s great raid on the pensions of people around the country.

[Helen Jones]

The Chancellor’s financial calculations are always a little opaque, but I think that we are talking about something like £30 billion.

The Government have consistently undervalued these women and their contribution to the country through work, caring and childcare. These women are being forced into poverty, and they are angry, as they have every right to be, because they have been treated appallingly. Frankly, blaming the EU for the fiasco, as the Government have tried to do, will not work. I know that many MPs are being told to blame the EU in the standard letters that they send back. It is common for some Ministers to blame the EU if it rains three days in a row but, in this case, that is not correct.

EU directive 79/7/EEC promoted equal treatment in social security matters, but it specifically recognised that progress towards equal pensions would have to involve transitional arrangements. In fact, the European Commission’s 2007 report made it clear that it expected transitional arrangements to be made. What are other EU countries doing? Austria will equalise its state pension ages in 2033. France is doing that earlier—in 2020—but it is equalising them at 61. In fact, many European countries have a long transitional process in the move towards equalisation. The European Court of Justice judgment that is often cited applies to occupational pensions, not state pensions, which are specifically exempted under paragraph 1(a) of article 7 of the directive to which I referred.

The real reason behind this, as we heard earlier, is to save money. Again, the current Minister for Pensions agrees with that, because in an article for the Yorkshire Post—again, this was before she became Pensions Minister —she wrote:

“increasing state pension age saves significant sums, as millions must wait longer before their pension starts, but for many this is causing real hardship. Surely Ministers should be sensitive to the damage done to older people’s lives”.

Well, Ministers are not sensitive to that damage. The new Pensions Minister in particular is not sensitive to that damage, because she wrote to a member of Women Against State Pension Inequality—I congratulate it on its work—to say:

“there is no basis for me to demand spending public money when due process was followed.”

Well, let me ask this: who contributed to that public money? Many of those contributions came from women who have worked hard all their lives and have relieved the state of huge burdens through their caring responsibilities.

Defamation Bill

Paul Farrelly Excerpts

Tuesday 16th April 2013 Commons Chamber

[Mrs Grant]

I am delighted that the Defamation Bill has returned to this House for us to consider the amendments made in the other place. Lords amendments 1, 15 and 16 constitute a partial enactment in statute of several recommendations made by Lord Justice Leveson in his report on the culture, practices and ethics of the press. In particular, they create a press recognition body and require the creation of an arbitration service within recognised self-regulators for defamation and related civil claims. However, the requirements set out in these amendments for the press recognition body do not specify fully or clearly Lord Justice Leveson’s requirements for the self-regulator.

[Paul Farrelly (Newcastle-under-Lyme) (Lab)]

Is the hon. Lady aware that these amendments have been overtaken by events and will not be pressed? We only have one hour in which to discuss all the amendments to the Defamation Bill. Before she launches into a long speech, will she take account of this and perhaps conclude her remarks relating to past events so that we can move on?

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[Mrs Grant]

If my hon. Friend will bear with me, I will deal with that specific point. If I do not, I am sure he will come back.

[Paul Farrelly]

Will the Minister give way?

[Mrs Grant]

I would like to make a little more progress.

[Paul Farrelly]

On that point?

[Mrs Grant]

No, in a moment. I want to make some progress first.

If the claimant succeeded at the permission stage, an early resolution hearing would often still be needed to enable the court to give a ruling on other key aspects of the claim—in particular, what the meaning of the words complained of was and whether they were statements of fact or opinion. This would mean that two sets of applications and hearings could often be needed, whereas under our proposals one would be sufficient. We have consistently made it clear that we are fully committed to taking action to help reduce the cost of defamation proceedings. The amendment would have precisely the opposite effect.

In addition to the early resolution proposals, the Civil Justice Council has recently submitted to the Secretary of State its recommendations for cost protection in defamation and privacy proceedings. We are considering these carefully, with a view to introducing measures to give protection to parties with limited means when they are faced by an opponent with substantially greater resources. The amendment would undermine these initiatives and in many cases create unnecessary additional costs for both claimants and defendants.

[Paul Farrelly]

I thank the Minister for her generosity in giving way. The amendment would be the only place in the Bill that provides for an early strike-out procedure. One of the problems has been that we have not seen the changes to the civil procedure rules throughout all this. How, then, can we be confident that what is promised will happen? In the case that the hon. Member for Worthing West (Sir Peter Bottomley) will no doubt refer to in due course—of Peter Wilmshurst and NMT—an early strike-out procedure was necessary to prevent one company from abusing our libel laws. It was an example of libel tourism and all the worst excesses. The amendment would be the only place in the Bill providing for early strike-out.

[Mrs Grant]

I hear what the hon. Gentleman says, but the early resolution procedure will not fix the problem of the chilling effect and equality of arms that he is obviously concerned about. It is one of many measures and although I fully accept that the chilling effect is an issue, we also have to recognise that companies must have the right to protect their reputation. One therefore has to consider not just our request for an early resolution procedure, but the serious harm test and our proposals on cost protection and exemplary damages and costs. Altogether, all those things will, I hope, ensure that defamation proceedings are not manipulated by the party with considerably more financial needs against the party with less financials means.

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[Sadiq Khan]

At the last general election, all three main parties were committed to reform our defamation laws. The Bill before us is a step forward in modernising our outdated defamation legislation. I shall shortly explain that it is not perfect—I believe that the House must decide on a number of crucial issues today—but it will lead to a much-needed updating of the law.

I begin by thanking colleagues in the other place, including Lord Browne of Ladyton and Baroness Hayter of Kentish Town, for championing improvements to the Bill, many of which are before us today, and Lord McNally for his handling of the Bill in the other place. A number of the points addressed in the amendments were raised by Labour in the House of Commons and in Committee in the Lords. We welcome the fact that the Government have taken them on board. I hope the House will endorse the improvements made to the provisions on public interest defence, the operators of websites and the electronic publication of peer-reviewed academic and science journals. All those will contribute to improving our defamation legislation.

[Paul Farrelly]

rose—

[Sadiq Khan]

I will give way once and then move on.

[Paul Farrelly]

I thank my right hon. Friend, who referred to the efforts of Baroness Hayter, particularly in respect of amendment 2 on non-natural persons or corporates. Will he also pay tribute to Lord Lester of Herne Hill of the Liberal Democrats and Lord Mawhinney of the Conservative party, as this truly was an amendment with cross-party support in the Lords?

[Sadiq Khan]

My hon. Friend will be pleased to know that I was going to thank them later in my speech, but I will do it now. I thank Lord Lester for beginning the process of his private Member’s Bill, which followed the working party; and I thank Lord Mawhinney who chaired the excellent Joint Committee. I thank, too, the Select Committee on Culture, Media and Sport, ably chaired by another Conservative, the hon. Member for Maldon (Mr Whittingdale).

On the rules on a corporation’s ability to pursue defamation against an individual, however, the broad consensus breaks down. We were led to believe that this afternoon the Government would make concessions that would buy off the Liberal Democrats and us, but that did not happen. What the Minister has said is inadequate, and gives the lie to the word “concession”.

The Government, and the hon. and learned Member for Harborough (Sir Edward Garnier), seek the House’s support for the overturning of Lords amendment 2. The amendment would bring equality to an area of law that is currently characterised by a large degree of inequality and that has had a chilling effect. Corporations have used their financial and legal might to intimidate their critics, which in many cases has led to their silence.

Let me quote from the excellent report of the Joint Committee.

“It is unacceptable that corporations are able to silence critical reporting by threatening or starting libel claims which they know the publisher cannot afford to defend and where there is no realistic prospect of serious financial loss. However, we do not believe that corporations should lose the right to sue for defamation altogether ...we favour the approach which limits libel claims to situations where the corporation can prove the likelihood of ‘substantial financial loss’.”

Opposition Members support that statement.

If the Government are successful today, they will undo a key improvement that was made in the other place, and this House will send the message that it is acceptable for corporations and institutions to silence their critics by using the threat of defamation in a battle that is inherently unequal. The Bill, as amended, will not prevent corporations from pursuing defamation actions against individuals; it merely introduces an initial hurdle before that stage is reached. A court must be satisfied that the likelihood of substantial financial harm has been proved before the action can proceed. That last point is important, as it relates to the size of the company and thus takes into account the particular challenges facing smaller businesses.

The hon. Member for Worthing West (Sir Peter Bottomley) mentioned Dr Simon Singh, the science writer who led the libel reform campaign—a campaign for reform of our defamation law—after being sued for criticising the “bogus treatments” offered by some alternative medicine providers. He pointed out that if the Government were successful today, people such as him who made similar statements would still be given no protection. As Members may know, he was sued by the British Chiropractic Association, which is registered as a company.

Dr Simon Singh said today:

“My own case is not atypical. Lots of cases which people think are unfair and unreasonable have involved large companies suing individuals and corporations. The only clause in the Bill that would have helped me would have been if the British Chiropractic Association had had to demonstrate financial loss, because that would have been impossible for them. Corporations have huge influence on society and that’s why we need to tip the balance in favour of free speech.”

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[Sadiq Khan]

Thank you for rescuing me from that speech, Mr Speaker.

First, we are not saying corporations cannot sue at all. We are saying, “If you’ve suffered serious financial loss relative to the size of your company, you can sue.” Also, directors can sue, which is especially relevant to a small company suffering harm.

All in all, we believe that the provisions in Lords amendment 2 are measured and sensible, and modernise our existing defamation laws in a proportionate manner. They enjoy wide support, too. They are supported by the Libel Reform Campaign, the House of Commons Culture, Media and Sport Committee and the Joint Committee on the draft Bill, chaired, as we have been reminded, by former Conservative Cabinet Minister, Lord Mawhinney.

[Paul Farrelly]

The right hon. Member for Bermondsey and Old Southwark (Simon Hughes) suggested in his intervention that the Government might make some changes in the Lords and gave the Minister the opportunity to intervene. Will my right hon. Friend invite the Minister to intervene, to make clear what might happen in the Lords if this measure is not pressed to a vote now?

[Sadiq Khan]

My hon. Friend will be pleased to know that I think it is good manners and courtesy to take an intervention when someone on the Front Bench tries to make one, so if the Minister seeks to intervene I shall allow her to do so.

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[Paul Farrelly]

I wish to speak briefly to Lords amendment 2, which would be a major change to the Bill, and to amendment (a) to Lords amendment 3, which stands in my name and that of the hon. Member for Worthing West (Sir Peter Bottomley). I will curtail my remarks, because I want to give other Members the opportunity to speak.

Lords amendment 2 would be a major change. The issue here is not just about big corporations wanting to bully and intimidate the little people, as McDonalds did years ago, simply because they can. The Culture, Media and Sport Committee’s report highlighted a more recent case of almost flagrant abuse of our libel laws by a large corporation: Tesco’s libel action against The Guardian—some people’s favourite paper, and some people’s hate paper—in 2008. We can generalise from that case.

It has recently been in vogue to condemn aggressive and widespread tax avoidance, and that was what The Guardian story was all about. It made a mistake in that story and referred to the wrong tax. It turned out that Tesco was avoiding not only the wrong tax but the tax that it said it was not avoiding. The Guardian, as any newspaper would, apologised, made a clarification and offers of amends and ensured that it used all the procedures of the law, as set down the last time this House looked at reform of libel law, but Tesco was just not interested.

The reason Tesco turned everything down, stalled for time and racked up the costs was not just that it could, but that it, like so many corporations, wanted to chill. It wanted to take the newspaper and its journalists out of the game. It wanted to send a message. The Guardian—it could have been any newspaper—faced a bill of up to £5 million if the case went all the way to the House of Lords, or now to the Supreme Court, because the issue in libel is cost, not damages, so it settled for a nominal sum. The costs were massive.

Lords amendment 2 would have cross-party support not only in the Lords but here, if Members had a free vote. The only people who oppose it are those organisations that like to chill and those firms that make massive amounts of money out of the libel industry. The amendment would not stop companies suing; it just asks that they demonstrate significant damage when they can fight back by other means.

The Lords amendment also asks that the court approve a writ. Currently people can just go to court, a writ is rubber-stamped and then one is obliged to spend one’s time and money fighting it. The refusal of Rachel Ehrenfeld, an American, to go thorough that procedure led to the Americans introducing their laws to stop our libel judgments being enforced in the United States.

[Sir Edward Garnier]

I ask the hon. Gentleman to have a look at new clause 2(3), which says:

“The court must strike out an application under subsection (2) unless the body corporate can show that the publication of the words or matters complained of has caused, or is likely to cause, substantial financial loss”.

What happens to a charity or non-profit-making company that is not in the business of making a financial gain or a financial loss if it is defamed? The case would have to be struck out under the clause.

[Paul Farrelly]

The hon. and learned Gentleman has forgotten that the proposal does not apply to non-profit-making organisations.

This is the only part of the Bill, until we see the civil procedure rules, that provides for early strike-out. That would have helped Peter Wilmshurst, sued by NMT, who could not ultimately pay the bills that he had racked up, leaving aside the worry for his family in putting everything on the line. The amendment would get around the distinction drawn in the Simon Singh case—the artificial discrimination between corporate bodies and non-incorporated bodies that allowed the British Chiropractic Association to sue him in the first instance.

The Lords amendment is sensible and proportionate. It would not prevent individuals in companies, particularly private companies, from suing if they felt defamed by an article that attacked their company. It would also, as the hon. Member for Worthing West said, extend the Derbyshire principle to contracted-out firms where they are providing public functions—Atos, for example. In short, it keeps up with the times.

I put my name to Lords amendment 3, tabled by the hon. Member for Worthing West, partly, again, on the grounds of reducing costs. Beliefs are very subjective and decisions are more objective if the courts interpret them sensibly. I also wanted to tease out from the Government why, having rejected all our concerns in the Bill Committee about having another tick list, as the Reynolds defence had proved so costly, they had so radically changed their mind. The Minister has not elucidated that. However, by virtue of the fact that the matter was uncontested in the Lords, I am happy that a court can consider all circumstances of the case. I hope that in a spirit of cross-party truce, my colleague the hon. Member for Worthing West will speak to his amendment.

[Sir Peter Bottomley]

I want to make two points that were not those I intended to make originally. My third point is that I disagree with my hon. and learned Friend the Member for Harborough (Sir Edward Garnier) almost completely about this, so I will not put those arguments.

Tesco Lotus in Thailand sued a journalist for £1.9 million—perhaps it was dollars or something, but it was quite a lot—because it wanted an apology, and it eventually got an agreement to have a clarification of the words on an inside page. It later sued a former MP, a business journalist, in the same way.

Corporations such as Tesco, whether in joint venture overseas or in this country, should not be able to choose to sue an individual journalist; it simply should not happen. They have plenty of power, plenty of weight, plenty of thick skin and an umbrella, and they should not be able to do it.

I would have stopped corporations suing for libel at all.

I believe strongly that public functions should fall under the Derbyshire principle, irrespective of whether we want private businesses doing public jobs. Earlier I gave the example of a security guard at a pop festival. I regard security as a public function even if it is privately hired, and such people should not be able to sue for libel. The court should not issue the writ; it should not be allowed.

Let me make a point on behalf of Colin Channon, the editor of my local newspaper, the Worthing Herald, who says that were he to report that a group of unauthorised campers was in the constituency and he were then sued, he would have to pay £3,000 for initial advice before he got to a panel. We are in danger of our local newspapers being threatened.

As for people conspiring to say that the police would not confirm whether someone had been arrested, the idea that someone could sue for a libel that claimed they had been arrested but which had not been confirmed, even though true, makes the issue even worse. I am unhappy with most of this but I am particularly unhappy that the Government have not yet found a way of having new clause 2, in effect, there for all of us.

Defamation Bill

Paul Farrelly Excerpts

Wednesday 12th September 2012 Commons Chamber

If votes are called, I will invite my party colleagues to support the Government on their new clause and the two amendments and to resist the Labour amendment, in the knowledge that Ministers, shadow Ministers and other Members are willing to work collaboratively together and with those outside this place who have taken a good and informed interest in helping us get the law right. There is a strong mood in this place and in the country in favour of reform to the law on defamation, as it has clearly fallen into disrepute. I pay tribute to those who have done all the work so far, and I support the Government, who are clearly in a constructive mood to improve the Bill.

[Paul Farrelly (Newcastle-under-Lyme) (Lab)]

May I both welcome the new ministerial team and put on record my sadness that the hon. Member for Huntingdon (Mr Djanogly) will not pilot the Bill through? He did a lot of work on the Bill. He said he would reconsider certain details in respect of websites, and the Government have brought forward amendments, which I welcome.

New clause 1 seeks to address a perverse and, no doubt, unintended anomaly, whereby so long as a website operator complies with all the requirements and delivers up the identity of the poster, they can continue to publish content on the site. I pointed out that anomaly in Committee, using the example of a political website that, having complied, continued to run defamatory material about rivals for the sheer mischief of it. This is a live issue.

I have one principal question. The new clause seems to be very narrowly drawn. It appears to say that the claimant must first succeed in an action for defamation for the court to be able to order a website operator to take down material. The amendments I tabled in Committee, but then withdrew, were broader. They covered, for instance, circumstances where an individual could ask for an injunction ordering that material be taken down in advance of an action for libel, which might, of course, take some time to be heard. Is it the Government’s intention that courts should be able to issue injunctions or other orders only after a successful libel action? It would also be helpful if the Minister could clarify the meaning of subsection (2) of the new clause.

[Jeremy Wright]

I thank Members for their kind words of welcome to me and my fellow Justice Minister, my hon. Friend the Member for Maidstone and The Weald (Mrs Grant). I also echo the tribute the hon. Member for Newcastle-under-Lyme (Paul Farrelly) has just paid to my predecessor, my hon. Friend the Member for Huntingdon (Mr Djanogly), whom I thought the hon. Member for Bishop Auckland (Helen Goodman) was very harsh on, as he certainly was involved in the concessions—

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[Jeremy Wright]

My hon. Friend raises some fair questions. I know that he will forgive me if I do not litigate a case that may or may not have happened 22 years ago. As he knows, there is various case law on these issues as they affect public authorities and defamation—if he will forgive me, I will not go down that road. However, I will urge the hon. Member for Bishop Auckland not to press amendment 7—

[Paul Farrelly]

rose—

[Jeremy Wright]

Before doing so, I will give way, one last time, to the hon. Gentleman.

[Paul Farrelly]

The Minister has been clear that he wishes courts to make orders only after successful defamation cases. What he has not answered is my question about the meaning of subsection (2) of the new clause, which refers to subsection (1) not affecting

“the power of the court”.

The courts, of course, have the power to issue injunctions.

[Jeremy Wright]

Of course they do. The hon. Gentleman is right to say that I omitted to mention that and of course that is exactly the point. The court’s right to make injunctions remains, and although interim injunctions are rare, they are still available. The purpose of the subsection is to ensure that they remain so. With that, I ask that hon. Members support new clause 1 and amendments 5 and 6, and I urge them to resist amendment 7.

Question put and agreed to.

New clause 1 accordingly read a Second time, and added to the Bill.

New Clause 2

Disapplication of Legal Aid, Sentencing and Punishment of Offenders Act 2012

‘Sections 44 and 46 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 shall not apply in relation to civil actions for defamation, malicious falsehood, breach of confidence, privacy or publication proceedings.’.—(Robert Flello.)

Brought up, and read the First time.

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[Mr Edward Garnier (Harborough) (Con)]

It is a pleasure to speak in the debate because it gives me the opportunity to congratulate my hon. Friends the Members for Kenilworth and Southam (Jeremy Wright) and for Maidstone and The Weald (Mrs Grant) on their promotion to the Government. I cannot think of two finer people to receive such an honour. I served on several Public Bill Committees with my hon. Friend the Member for Kenilworth and Southam when we were in opposition, and I could not think why he was not made a Minister as soon as we came into government. At least he got there in the end, however, and I sincerely trust that he will stay in his post for a good long time, not least because the Bill is of considerable public importance and interest.

I must disclose a form of interest in the Bill because there was a time when I knew quite a lot about the law of defamation, although I then spent two years as a Law Officer during which I forgot all the law I ever knew. While I was listening to the hon. Member for Stoke-on-Trent South (Robert Flello), I was reminded of our debates during the passage of the Bill that became the Access to Justice Act 1999. At that time, it was apparent that the then Labour Government were not terribly interested in providing access to justice, and I said that that Bill would more properly be called the Denial of Access to Justice Bill. However, that was a long time ago.

I come to our debate on the new clause untrammelled by any knowledge of sections 44 and 46 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, but I did listen to the hon. Gentleman’s speech. I do not think that my hon. Friend the Minister will have to look very hard to find the references that the hon. Gentleman was after, but if the situation is as it has been described, that would be a pity, to say the least.

If the words of my noble Friend Lord McNally that were cited are to mean anything, I trust that the Government will do something about the problem, because a failure to provide access to justice for people without deep pockets should not be encouraged. Conditional fee arrangements—I have benefited from one or two—do not cost the Government any money. They are not an ideal system of achieving access to justice, but they are a way of allowing those without access to funds from trade unions, companies, employers or others to bring or resist actions for defamation. I therefore hope that the Government will consider carefully—if not today, during the gap between the Bill leaving this House and its consideration in the other place—arrangements whereby those without funds can defend either their reputation or a defamation claim.

That said, I hope that the Minister’s speech will persuade the hon. Member for Stoke-on-Trent South that it is not necessary to press new clause 2 to a Division. I hope that we can take the Minister’s word that the matter will be given a lot more thought before the Bill reappears in the other place. Knowing my hon. Friend, I think that we can be reasonably sure that that will be the case.

[Paul Farrelly]

I support the comments of my hon. Friend the Member for Stoke-on-Trent South (Robert Flello) and the hon. and learned Member for Harborough (Mr Garnier), who I see is still plain “Mr Garnier” on the monitors.

It has been a long road to libel reform. For newspapers and other media, the real issue is cost. Responsible newspapers have been concerned about conditional fee agreements with 100% success fees and the sheer costs involved in such cases, especially as it seemed to be a case of “always win, double the fee”. Of course, we have heard examples where that is not the case: my hon. Friend cited the case of Dr Peter Wilmshurst, consultant cardiologist at Royal Shrewsbury hospital and our local University hospital of North Staffordshire, who needed that measure to be able to defend himself and give some certainty in a fraught situation to his family that, if he were to lose his case, all their worldly goods would not be forfeit.

Over time, proposals have been made, including by Lord Justice Jackson and my right hon. Friend the Member for Blackburn (Mr Straw), who laid a statutory instrument which was—almost uniquely—defeated by a cross-party ambush in Committee, because Members felt so strongly about the issues involved. In addition, the Culture, Media and Sport Committee, of which I am a member, produced proposals to limit the uplift in fees to 10%, rather than 100%, and not to recover after-the-event premiums—often, there is a false market in those premiums. I will put on the record now my belief that, in that report, we went too far, but our proposal was not to abolish an uplift, which would encourage lawyers to take on difficult cases, in their entirety. On the one hand, we are reforming libel law to protect responsible journalism, but on the other hand, we are potentially denying people access to justice, and I think the whole environment has become unbalanced.

What we have to remember, with phone hacking and Lord Leveson soon to report, is that we have a macho media world and some highly aggressive corporations. If we remove people’s ability to fight to restore their reputation, we risk giving a carte blanche to libel and going back to the bad old days when the only questions a newspaper asked were, “How much have they got? Can they afford to sue us?”

[Gloria De Piero (Ashfield) (Lab)]

There seems to be some consensus that the main obstacle to pursuing a defamation claim would be lack of cash. Does my hon. Friend agree that, rather than resolve that crucial issue, the Government’s proposals could make the situation worse?

[Paul Farrelly]

I entirely agree. I do not propose a return to the bad old regime, but I hope that the Government will give some thought to the remarks made by my hon. Friend the Member for Stoke-on-Trent South and the hon. and learned Member for Harborough. The situation is unbalanced now and we need to address that.

So often, if people do not sue, our media do not take them seriously. That simply increases the licence to libel. I know people who defend responsible journalism and investigative journalists who have had to take that course of action because newspapers with an agenda have been out to get them; if they did not threaten or take legal action, the situation would never change. I believe the culture of our media needs to be borne in mind, as we will be reminded when Lord Leveson reports next month.

[Simon Hughes]

I welcome back to our debates the former Solicitor-General, whom I thank for his work in that office. It was much appreciated and I wish him well in considering things from a non-Government and non-Law-Officer perspective.

I declare an interest that means that I will not vote on the new clause if it is pressed to a Division. I am the recent recipient of a conditional fee agreement in the well publicised series of actions against News International. Even though, like all my colleagues here, I am on a parliamentary salary of more than £60,000 a year, had I not been offered a conditional fee agreement the prospect of taking News International to court subject to the risks that, in theory, followed from that might well have dissuaded me from doing it. If those risks might have dissuaded me and anyone on a salary similar to mine, how much more would they have dissuaded people earning a lower salary, much less experienced than I in such matters—not a lawyer—and not used to dealing with the media? We have to be realistic about the relevance of the issue and be aware of the need to continue the debate.

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If a newspaper went after a colleague, a councillor, a council leader or a parliamentarian, or any individual, with no evidential basis for its assertions, unless it owned up to its failure and offered redress in the form of a published apology there would be a basis for a malicious claim, and the public interest defence would not apply.

[Paul Farrelly]

I am fully aware of the provenance of the new clause and of the sterling work done by the Libel Reform Campaign, and I am very sympathetic to what the right hon. Gentleman is trying to achieve, but I want to ask him a question. Let us suppose that an innocent mistake is made, which may not be apparent to the newspaper. When a complainant writes to the newspaper saying “I want an apology”, the newspaper gives the standard response, “We stand by our story: it is true and in the public interest.” I fear that in those circumstances there will be no defence for responsible journalism, because under the new clause it falls away.

[Simon Hughes]

I accept that, and I pay tribute to the hon. Gentleman’s work, which has been gleaned from his experience in his previous life as a journalist.

What we are trying to do between us is ensure that if we are to replace the common-law defence with a statutory defence, we not only deal with the general proposition that if something is in the public interest, that should be a defence, but find ways of giving the public a remedy—which they do not currently have, short of going to law—and ratchet up the probability that a public interest defence will be unsuccessful if the defendant has been malicious.

As the hon. Gentleman rightly pointed out, the definition of “malice” in the new clause is not my own handiwork. Others have been working carefully to craft what they consider to be the right second-tier definition. The aim is to establish two tiers of consideration: there should be a general public interest defence, but the situation should be deemed to have gone beyond that when a publisher has flown in the face of the facts or the evidence. That would not apply to the example given by the hon. Gentleman, because if a newspaper could honestly argue that the statement that it had published was ignorant and innocent and that there had been every reason for believing that it was true, it would obviously have a much more complicated public interest defence case to argue. In the absence of my new clause, it would then have to rely on something like the clause that is currently in the Bill.

Let me make just two more substantive points. I am keen for us to end up with legislation that will give people a way out of the legal process when that is possible. Who knows what the Leveson inquiry will produce? I sense that one of its main recommendations will concern how we should deal with the public’s desire for inaccuracies to be corrected. I gave evidence before Lord Justice Leveson, as did others, and that was a major subject of debate. We may have to legislate if Lord Justice Leveson proposes legislation, and I hope that that would happen in the Session that will begin next May. It is therefore possible that we will return to this issue.

There is a debate about when the Leveson report will be ready, but if it appears as early as October, it may give us time to incorporate any proposals in this Bill. If it does not produce its recommendations until December, which now looks more likely, I sense we will have to come up with further legislation specifically to deal with the Leveson recommendations. Although we may not come up with a perfect solution in this Bill, however, both Government and Opposition parties have said they want to try to get this issue sorted now and get a better definition of public interest defence.

I want the House to agree to a measure that adds to the current clause 4, with a new defence available to publishers who are prepared to correct the record or publish a right-to-reply response promptly and prominently, thereby avoiding the use of lawyers. That answers the need in the internet age for a much speedier response—otherwise many readers are unlikely to see both the original content and the later clarification. It offers newspapers and other publishers a way of being responsible after the publication of the initial story, too, because they can be shown to have corrected what they have published. It will also serve not to permit the repetition of a defamatory allegation that has been promptly or prominently corrected or clarified. It would, therefore, take disputes out of the courts, thus saving people money, and it would speed up justice and make it more publicly accessible. It would not apply if the author were motivated by malice in its widest definition, which includes political or personal ill will or vendetta, rather than just the old honest opinion defence. The information must also be understandable to the public.

The Reynolds defence no longer works. Everybody accepts that we must move on from that common-law position for all sorts of reasons. We are in the age of the citizen-journalist, and we need to adapt the rules to accommodate that. We need something that will work for conventional newspaper groups and new media organisations. The Reynolds defence has outlived its time. It will no longer be sufficient to have a checklist of tests in every court case. Perhaps we ought to debate again whether to have early strike-out clauses in order to get other kinds of cases out of the courts, too. We need a measure that sorts out at the beginning of proceedings, rather than the end, whether there is a public interest component.

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My final point relates to the offer of amends defence. As colleagues will be aware, that is exactly what it says it is: someone can go to court to say, “Look, I have made an offer to sort this out. Therefore, I am not guilty and I will be let off.” What I am arguing for is not the same as an offer of amends. That means an admission of liability and requires agreed damages—or leaves it for the court to agree damages, with a discount if the offer has been made, and costs and so on. That is a settlement mechanism, which is conventional in the court process, and it has been able to be a defence only if the claimant refused an offer in any case. I am arguing for something wider than that. I believe that what I suggest is compliant with human rights law and that it produces a route to get lots of cases out of the courts. I hope that Ministers will add it to their list of things in their inbox of proposals to consider; that is what I want the Minister to say today. I look forward to the continuing debate. We have a few more months to get this into good shape, but we need to do quite a bit more work before it will be in that position.

[Paul Farrelly]

Amendment 9 is the first of a series aimed at either improving or clarifying the Government’s thinking on clause 4 regarding “responsible journalism”. Clearly, the right hon. Member for Bermondsey and Old Southwark (Simon Hughes) has given the Government more food for thought, and he usefully clarified that his new clause 4 would in no way be a replacement for clause 4 but that it would be an additional safeguard. I want to say at the outset that I welcome the Bill’s recognition that responsible journalism should be protected, in the public interest. However, during the passage of the Bill we want to make sure that what is codified is not a step back from the current case law that has been largely welcomed, and we also do not want to give a charter for sloppy, frivolous, inaccurate or sometimes downright nasty journalism.

The clause in effect codifies the defence of qualified privilege established in the judgments in the cases of Reynolds v. Times Newspapers Ltd and then Jameel v. Wall Street Journal Europe, as we have heard. One of the concerns among serious journalists about the current state of the law, and therefore about the construction of this clause, is that the list has the potential to be interpreted by lower courts in particular as an inflexible tick-list: a set of hurdles, each and everyone of which needs to be surmountable before the defence can be deployed.

In his landmark judgment in the Reynolds case in 1999, Lord Nicholls enumerated 10 different matters that a court could take into account in allowing a defamatory article the protection of qualified privilege. They are slightly different from the nine in paragraphs (a) to (i) in subsection (2), but clause 4 seeks to capture their essence. Lord Nicholls made it clear from the start that his list was by no means exhaustive and was meant to be flexible, depending on the circumstances. He said:

“The weight to be given to these and any other relevant factors will vary from case to case”.

That important point was underlined in 2006 in the very different case of Jameel v. Wall Street Journal Europe. The first case concerned an article in The Sunday Times regarding the former Irish Taoiseach Albert Reynolds, whereas the Jameel case concerned a Wall Street Journal article in the aftermath of the events of 9/11 saying that US law enforcement agencies and the Saudi Arabian central bank were monitoring bank accounts associated with prominent Saudi business men. The central question was what sort of reporting might be in the public interest, even when the imputations and the allegations carried might be untrue and defamatory. In the Jameel case, Lord Bingham of Cornhill set out very clearly how the Reynolds factors should be interpreted:

“Lord Nicholls....intended these as pointers, which might be more or less indicative, depending on the circumstances of a particular case and not, I feel sure, as a series of hurdles to be negotiated by a publisher before he could successfully rely on qualified privilege.”

That is indeed how the lower courts had interpreted the list. In the Jameel case, the House of Lords was critical of the High Court—in that instance, Mr Justice Eady—and the Court of Appeal in denying qualified privilege on one narrow ground taken from the list.

Indeed, because of the operation of the lower courts, newspapers and non-governmental organisations also prepare for and approach Reynolds defences according to a tick list. That accounts for the complaints about how costly it is in practice to “run a Reynolds”. The likely bill would be calculated by totting up how much it would cost to satisfy the court that each of the 10 factors had been satisfied.

In Committee, the Government said that the wording in the preamble to subsection (2) of clause (4) already made it quite clear that the list was not exhaustive. The purpose of amendment 9 is to make it even clearer that a court should take all circumstances into account. I admit that the wording is essentially not mine, but is taken from the noble Lord Lester’s Defamation Bill, a private Member’s Bill that gave much impetus to the Bill that we are now considering.

Amendment 10 is aimed at probing, as we did in Committee, whether or not clause 4 is a step back from the case law as it has developed. The right hon. Member for Bermondsey and Old Southwark mentioned the case of Flood v. Times Newspapers, which came up in Committee. For the uninitiated, that concerned the case of a policeman, Detective Sergeant Gary Flood, who was being investigated internally by the Metropolitan Police over alleged corruption by wealthy Russians but who was later cleared. The central question for the case was whether it was in the public interest for the fact of an investigation to be reported, with the officer’s name, even though the allegations were plainly defamatory and he was eventually cleared.

The Supreme Court found this year that in the circumstances of that case, the newspaper group could rely on qualified privilege. The case is very recent, coming just weeks before publication of the Bill, and I mention it in relation to the amendment because there is concern among serious journalists and defamation lawyers that the clause as drafted is a step back from Flood. Indeed, the case is not even mentioned in the explanatory notes.

The concerns crystallise around the drafting of clause 4(2)(g) and the question of whether courts will require newspapers in every case to investigate and prove the truth of allegations that are subject to investigation—for example, by the police, as they were in the Flood case. As drafted, paragraph (g) appears to go beyond Reynolds, where one of Nicholls’ factors or tests is to “verify the information”, which is a very different thing to verifying the truth of the allegations. That is where the concerns about paragraph (g) lie.

[Stephen Phillips (Sleaford and North Hykeham) (Con)]

I understand the hon. Gentleman’s point about the reporting of investigations, but is not one of the problems with the potential removal of paragraph (g) the fact that it essentially enables journalists to print almost anything, subject to the other conditions, without taking any steps to verify the truth of something that is not under investigation? If the paragraph is removed from the Bill, it will amount to a charter for libel.

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[Paul Farrelly]

The hon. and learned Gentleman makes a fine point. The purpose of my amendment, which I shall not press to a Division, is to probe the Government’s thinking. Other suggestions for amendments were made in Committee and some of those might reflect the judgments given in Reynolds more closely than paragraph (g).

Any decisions by lower courts can be appealed, but going all the way to the Supreme Court is very time-consuming and expensive. The purpose of my amendment 10 is therefore to get the Government to clarify what they mean by paragraph (g) and whether they have fully taken into account the most up-to-date case law, and to give them the opportunity to state to the House that there is no intention that the clause should be at odds in any way with how the “responsible journalism” defence has been developed by the courts over the years.

Amendment 11, which relates to subsection (2)(h), simply reflects the actual wording used by Lord Nicholls in his list in the Reynolds case, in which the court considered whether a newspaper might reasonably have delayed publication—for instance, to wait longer for a comment from the subject of an article—rather than going to press when it did. The concern in the legal profession about the current wording of sub-section (2)(h) is that it is neutral and does not capture the essence of the urge, or the urgency, to publish. It is a concern for weekly, fortnightly or monthly publications, for example, that withholding a comment can be used to try to ensure that a story does not appear in a particular edition. I shall pray the noble Lord Lester in aid again. Urgency appears explicitly in his list of factors that the courts may take into account. In his private Member’s Bill, he proposed that they may consider

“whether there were any factors supporting urgent publication”.

Amendment 12 is lifted word for word from Lord Lester. It is intentionally broader than amendment 3, which my hon. Friend the Member for Hayes and Harlington (John McDonnell) will speak to shortly. It also seeks to address a concern that was not addressed in Committee. Following the phone-hacking affair and the failure, yet again, by certain aggressive tabloids to put their own house in order, there is now a crisis of confidence in the press in this country. The Press Complaints Commission palpably failed over phone hacking, and in cases such as that of the McCanns. It is broken, and the “son of PCC” advanced by the industry to replace it looks all too much like the PCC itself. The mantra in the industry often seems to have been never to let the editors’ code of practice get in the way of a good story or good business. I am sure that, when Lord Justice Leveson reports next month, he will make similar damning judgments about the practices of the press, or certain parts of it.

The amendment seeks to give statutory recognition, if that is the right word, when newspapers are seeking to rely on qualified privilege, to the importance of journalists following a relevant code of practice—be it their own publication’s code, the editors’ code, one from a regulator or that of the profession. It also seeks to bolster the position of journalists. They are frequently asked by editors to do things that breach those codes: “Leave your morals at home or you’ll be colouring in the black squares on the crossword before we sack you” can instil genuine fear in many parts of the industry. Only editors and proprietors have been consulted on the proposals for the reform of the PCC; journalists have not. I believe that in striving for better quality journalism, we should give good codes of practice more weight. The amendment seeks to do that.

[Mr Edward Garnier]

I listened with the greatest possible care to what the right hon. Member for Bermondsey and Old Southwark (Simon Hughes) said in moving his new clause, but I confess that I was either unconvinced or did not entirely understand the thrust of his argument. I am sure that that is entirely my fault. I also listened with care to the hon. Member for Newcastle-under-Lyme (Paul Farrelly), and I found him a little easier to follow. Both those contributions have persuaded me, however, that the amendments are not helpful to the wider debate. They have further persuaded me that, if we are to legislate, clause 4 is the way to do it.

Clause 4(2) proposes that, when determining whether a publisher has acted responsibly, the court may have regard to a list of factors, “amongst other matters”. The phrase “amongst other matters” reminds us of the words of Lord Nicholls in the case of Reynolds. His list of factors was non-exhaustive. In an ideal world, however, legislation is not the right way to go about this. The proposals in clause 4 are better to be found in the common law and in the development of case law. I appreciate that if courts are to develop the common law, that leads to a need for litigants to litigate, but such an approach provides necessary flexibility. By setting in stone clause 4, or another version of it, we will face the problem that it might not always be fit to deal with future circumstances. We are probably unwise to be doing that, albeit not so unwise that I would suggest removing clause 4 from the Bill. I do not think that we should have started from where we are, but I did not draft the Bill, and in so far as I had any influence on the people who did so, they sensibly ignored my opinion.

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[Sir Peter Bottomley]

I welcome this debate. I understand that new clause 4 is not going to be pressed to a Division, so I do not need to declare my intentions on that.

Those associating themselves with the new clause include Sense about Science, Which?, Citizens Advice, Mumsnet, Nature, the British Medical Journal, the Association of British Science Writers, Global Witness, the Society of Authors and the Publishers Association, and I am sure that many others would do so. If they believe that Parliament should pay attention to what is in the new clause, I agree with them, and I hope that there will be serious discussion about it in another place and before the Bill gets there.

I want to draw the House’s attention to a case whose decision was reported on 6 July this year by Mrs Justice Sharp. The case was brought by Mohamed El Naschie against Macmillan Publishing, the publishers of Nature, and against the journalist Quirin Schiermeier. In essence, Mrs Justice Sharp decided that what was written was honest, that it was fair opinion, and that it had justification. It was about comments made on the retirement of the editor of a journal called Chaos, Solitons & Fractals. Most of us know what chaos and fractals are. Solitons were, I think, first described in 1834 by someone who had observed a wave go through a canal; they relate to how a wave can be self-perpetuating if it goes at a constant speed. The journal, published by Elsevier, was regarded as a joke and described as such on mathematical websites. In theory, it was peer reviewed. The degree of seriousness of the peer review is described well in the judgment. In June 2011, Mr Justice Eady made various decisions and struck out some parts of the claim. It took until July 2012 for the case to be disposed of. The article was pretty mild, and the problem is that clause 4 or new clause 4 would not do enough to stop that kind of action being taken.

Let me return to clause 1, which needs a bit of attention between now and when it reaches the Lords. It says, under the heading, “Requirement of serious harm”:

“A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.”

That is not the best way of putting it. I would say that a defamatory statement is not actionable unless its publication has caused or is likely to cause serious harm to the reputation of the claimant. If something is said not to be defamatory when clearly it is defamatory, that is worth giving some attention to. I was brought up with the idea that a defamatory statement could be actionable only if it fulfilled three criteria: first, that it was not true—I can think of various defamatory things that could be said about me that are true; secondly, that it should be damaging, and I agree that it should be seriously damaging before it is actionable in court; and thirdly, that it should not be privileged. We might have returned to the question of what is privileged had there been other amendments.

New clause 4 relates to what the person who has published the defamatory statement has done after publication—whether they have, at the request of the person who has made the claim, provided an explanation, an apology or a clarification, or whether they have done that without being asked. That should be taken into account. If the new clause is accepted in another place, I hope it will encompass what a respondent has decided to do off their own bat.

To give a small example, the last time I noticed that I was being seriously defamed was when a Sunday newspaper said, in effect, that I was far too close to the IRA. As it happened, the IRA paid rather too much attention to me in my ministerial jobs, but that is a side issue. I rang the editor and said, “What you’ve said is wrong and very damaging. What did you mean to say?” He said, “That we disagree with House of Lords on its decision on Private Lee Clegg”—who had shot somebody—“and we disagree with you appearing at a meeting next Thursday at the Quaker meeting house on Euston road with a senior Sinn Fein person.” I said, “If you put out a statement to the Press Association by lunchtime saying that that’s what you had in mind—if you want to offer me a new lawnmower I would be grateful, but the key thing is to get out a statement today—I won’t take this further. If you don’t, tomorrow—Monday—we will issue a writ and serve it.” That led to a week and a half in the High Court, where George Carman lost a case for his client. I was not his client.

We should be putting pressure on claimants to stay out of court and find a way for courts to throw claims out. The case involving Nature magazine and its comments on the retirement of the editor of Chaos, Solitons and Fractals is the kind of case that even a clerk at the court should have said it would not accept. The first time the judge read the papers, they should have said to the claimant, “Sit down and tell me exactly why you think this needs action in court.”

[Paul Farrelly]

I draw the hon. Gentleman’s attention to new clause 5, which was tabled by the right hon. Member for Bermondsey and Old Southwark (Simon Hughes) but was not selected for debate because it was essentially the same as a new clause on early strike-outs that my hon. Friend the Member for Stoke-on-Trent South (Robert Flello) tabled in Committee. That new clause lost a Committee vote by nine votes to seven, with Conservative members voting against it and Liberal Democrats abstaining. I urge the hon. Member for Worthing West (Sir Peter Bottomley) to ask the Government to consider that new clause again when the Bill goes to the other place.

[Sir Peter Bottomley]

I am grateful to the hon. Gentleman for his intervention and will end my remarks on this point. It is important that a case does not fall only when it gets to a hearing. At an early stage, a judge should have the responsibility and the opportunity to ask what it is about. If a claimant will not take the advice of a judge, the judge should have the opportunity to refer the case to a small claims court. Once that happens, the small claims court should be able to order a limit on the costs that can be claimed at the end of a case, with or without a conditional fee agreement or qualified costs shifting. We need to cap these things and have a way of laughing people out of court even before they can get a full hearing.

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[Paul Farrelly]

I, too, welcome the new Secretary of State, but I do not want to forget the outgoing Secretary of State, the long-lasting, right hon. and learned Member for Rushcliffe (Mr Clarke), who ensured that the Government found time for the Bill in their manifesto commitments. I am sure that all Labour Members wish him well in his new roving role. We hope that he ruffles feathers across the Government in his inimitable way.

The Bill is welcome and has much to commend it, including giving scientific and medical communities protection from abuse of our libel laws in order to stifle debate and proper investigation. When our libel laws have been used and abused in the past, it was often by large corporations. The action brought by Tesco four years ago against The Guardian was perhaps the starkest case in recent times of an inequality of arms. The main ambition of the determinant litigant was not really to settle, but expensively to bog down the newspaper and its journalists for as long as possible, as a warning to it and others in the future.

The Bill does not address corporation suing, and we have heard from the hon. and learned Member for Harborough (Mr Garnier) about some of the anomalies regarding who can and cannot sue. I hope that those issues will be looked at afresh when the Bill proceeds to the other place.

The Bill does not include an explicit early strike-out clause to ensure that actions with no merit, that are designed to chill and intimidate at maximum cost, do not proceed. The devil is in the detail of how the courts operate. It is therefore a shame that we do not have the changes to the civil procedure rules that we need to give effect to many of the intentions of the Bill, as the Joint Committee on the draft Bill recommended.

We have discussed conditional fee agreements. As I have said throughout years of trying to bring about sensible libel reform, including via a long inquiry by the Culture, Media and Sport Committee, of which I am a member, it was never intended that success fees should be abolished in their entirety. Given the behaviour of some parts of our press, there is a real problem with access to justice, and reputations are unfairly ruined. I hope their lordships and the House return to that.

As the Bill proceeds, we might have the benefit of Lord Justice Leveson’s detailed thoughts on other issues, such as on a low-cost body or tribunal to settle libel disputes quickly and more cheaply, and on how the Bill might be amended to incentivise the use of such a forum.

Finally, I should like to thank everyone who has helped to inform the debate and me, including the Libel Reform Campaign, Index on Censorship, Sense about Science and English PEN. I also thank a small group of serious, superbly professional journalists and progressive lawyers who work at the coal face and who have given me and other hon. Members invaluable comments and insights. The lawyers include Hugh Tomlinson and Heather Rogers QC, Tamsin Allen of Bindmans LLP, Mark Thomson of Atkins Thomson, Robin Shaw of Davenport Lyons, and Michael Nathanson of Thrings, who represents booksellers. The journalists who have been helpful to me include David Leigh of The Guardian, and my former colleague on The Observer—the doyen of investigative journalism, if I might call him that—the legendary Michael Gillard Senior, who has done so much to advance the cause of responsible investigative journalism in this country over many years.

I also thank the ministerial team for the way in which the debate has been conducted, my hon. Friend the Member for Stoke-on-Trent South (Robert Flello) and my right hon. Friend the Member for Tooting (Sadiq Khan), and the hon. Member for Huntingdon (Mr Djanogly) for all the work he put into the Bill.

I welcome the assurances that the new team have given on their open mind. I hope their lordships seize on that assurance, because the test of the Bill is whether the abuses that hon. Members have highlighted can happen again. If they can, we need to return to the nitty-gritty and ensure that they cannot.

Defamation Bill

Paul Farrelly Excerpts

Tuesday 12th June 2012 Commons Chamber

[Sadiq Khan]

I thank the hon. Gentleman for his intervention; I know that he practises in this area of the law. In answer to his question: there is no guarantee that that will happen. This Defamation Bill gives us an opportunity to ensure that access to justice remains a possibility for all our citizens, and we ought to take that opportunity in the hope that another judge in another inquiry might come up with a solution. Let us bear in mind that there were two defamation Acts in the last century, and just one in the century before that. It is possible that there will not be another during our parliamentary careers, so it is appropriate for us to take this opportunity to ensure that this Bill is as perfect as possible.

[Paul Farrelly (Newcastle-under-Lyme) (Lab)]

I support the thrust of the Bill, but does my right hon. Friend agree that there is a danger in carrying out piecemeal reform, and in saying that certain tasks will be dealt with by Leveson and others by the Civil Procedure Rule Committee, because, as he rightly says, there is no guarantee that they will be dealt with?

[Sadiq Khan]

Absolutely. Before we reached this stage, a huge amount of pre-legislative work was carried out, by the Joint Committee and in relation to the draft Bill. It would be a wasted opportunity if that work were not taken up during the Bill’s Committee stage or, failing that, when it reaches the other place.

I have referred to the huge work done by the Joint Committee. We welcome some of the reforms suggested by the Government, but the Committee argued that the reduction in the extremely high cost of defamation proceedings was essential to limiting the chilling effect and making access to legal redress a possibility for the ordinary citizen. It proposed an approach based on strict enforcement of the pre-action protocol governing defamation proceedings, which has three elements. The first involves a presumption that mediation or neutral evaluation will be the norm. The second involves voluntary arbitration, and, if the claim has not been settled, the third element would involve court determination of key issues using improved procedures. Once again, the Bill is silent on this matter. I remind the Government that Desmond Brown QC, a leading libel barrister, said recently that

“it is no good amending the substantive law unless serious attention is paid to costs and judicial case management”.

I reiterate that we welcome moves to drag our defamation laws into the modern age, but that we, on this side of the House, believe that more can and should be done to make the Bill fit for the challenges ahead. We will be looking for greater clarification in a number of key areas, and for new clauses to address other omissions, some of which I have touched on. The Committee stage provides us with the opportunity to improve on and refine the Bill.

Given that there have been only three libel Acts since 1852, we need to grasp the nettle on this occasion as there may not be another chance to update our defamation laws for generations to come. Labour Members look forward to doing our bit to improve this Bill, and hope that the cross-party and collegiate manner in which libel reform has been pursued over the last four years will continue and move forward with the passage of the Bill.

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[Mr Buckland]

The Bill is silent on that. Clause 11 merely amends the relevant parts of the Senior Courts Act 1981 and the County Courts Act 1984, which allow a trial by jury unless the trial requires prolonged examination of documents and so on. The practice could develop in secondary legislation, but I doubt whether that would be seen as an appropriate mechanism to guide judges. I rather think that it will evolve as a matter of judicial discretion. I would be cautious about supporting secondary legislation that sought to prescribe the circumstances in which a jury trial ought to be ordered.

The point that my hon. Friend the Member for Stroud (Neil Carmichael) made about streamlining procedures is important. As the Joint Committee on the draft Bill pointed out, whether or not there are jury trials, there has to be proper reference to alternative dispute resolution methods such as mediation and neutral evaluation by a third party—all the mechanisms that serve to deliver justice and the redress of grievance not just to the millionaire in his Belgravia townhouse but to Mrs Trellis of 22 Acacia grove, who does not have the means to spend a lot of money on expensive litigation but who has been the victim of a wrong that needs to be corrected.

[Paul Farrelly]

Does the hon. Gentleman agree that because we need speed, which reduces costs, and because we need streamlined procedures and better case management, it would be useful to adopt the draft changes to the civil procedure rules that the Joint Committee recommended? They would give effect to the changes proposed in the Bill and could be amended further as the Bill progresses.

[Mr Buckland]

Such changes to the civil procedure rules could, and I think should, take place. They would not affect the passage of this primary legislation, so they would not require amendments to the Bill, but I agree with the hon. Gentleman’s point about the need for minds to be concentrated so that the Joint Committee’s noble aspirations can be translated into reality. That point is well made and entirely relevant in the context of the Leveson process. If Leveson achieves nothing else, I want it to provide a mechanism by which the ordinary person in the street can obtain redress of grievance with the minimum cost and at the maximum speed.

Before I was slightly diverted by interventions, I was making a point about the changing context of libel. In the 19th century, the only window into the private lives of the rich and famous was often through the device of the libel trial. How the world has changed. We live in a world in which we have an open door into celebrities’ private lives for the instant gratification of millions of readers, in many cases by the choice of the celebrity concerned. For many celebrities, that is a means by which they make a living. I do not seek to make any pejorative comment about that, but it is a simple fact of modern life.

Not only does the risk to reputation continue to be important, but joined with it is intrusion into people’s private lives. The two issues are different, and I accept that privacy cases are not about correcting falsehoods, as defamation proceedings are. However, they become inextricably linked in many ways when we examine the issues that characterise the debate in both scenarios.

I was part of the Joint Committee on Privacy and Injunctions, along with the hon. Member for Newcastle-under-Lyme (Paul Farrelly) and others. We were grateful to have among our number the noble Lord Mawhinney, who chaired the Joint Committee on the draft Bill, and his input was invaluable in informing us speedily of the progress and deliberations of the latter. The outcome of the investigation by the Joint Committee on Privacy and Injunctions was somewhat less co-ordinated than that of the Joint Committee on the draft Bill. There were a number of views and a multiplicity of divisions, but at the end of the process I believe that our contribution to the debate about privacy was important. We characterised some of the issues that have been raised today.

The hon. Member for North Antrim (Ian Paisley), who is not in his place now, made remarks about changing and codifying the law. I would not go so far as to support his assertion that we need statutory regulation of the press, but I thoroughly agree with his observation that now is the time for Parliament to take a lead on codifying the law of privacy. Indeed, I put that proposal to the Joint Committee on Privacy and Injunctions at the end of its deliberations. I was not successful in persuading the majority of members of its merits, but I make no apology for returning to the subject today. I believe not only that the law of defamation should be codified, as it is in this welcome Bill, but that Parliament should take a lead and do likewise to the law of privacy. We should bring together data protection legislation and all the other areas of legislation that deal with intrusion into individuals’ private lives.

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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.

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[Stephen Phillips]

What a fine idea. I am sure that my hon. Friend the Minister will be able to tell us whether that is the Government’s preferred solution—as, given the quality of my hon. Friend’s intervention, it may well be.

In 1996, Larry Page and Sergey Brin were still at Stanford university. They had met only the previous year, and Google was still two years away from being incorporated. For what it is worth, Mark Zuckerberg was 12 years old at the time. If any Members foresaw what the internet would do for the instantaneous communications that we now have, they were entirely silent in the debates that led to what became the Defamation Act 1996. I know that, because I have read the reports of those debates. We, however, are in a different position. We have the benefit of subsequent events, and—with the possible exception of my right hon. Friend the Member for Louth and Horncastle (Sir Peter Tapsell)—not one of us can now contemplate life without the technologies on which we rely for our daily existence. Perhaps it was ever thus with technological change, but, by the same token, change brings specific issues that must be addressed.

Chief among those issues here has been the ability not only to create defamatory material that is instantly accessible to millions of people with internet access, but to disseminate that material anonymously. Even this week, the common law has demonstrated the flexibility of existing mechanisms to assist those who are determined to protect themselves, but, as always, that has come at a cost. I believe that when Parliament intervenes in an area such as that addressed by the Bill, we must do what we can to help, and the Bill does that—although, like my hon. Friend the Member for Mid Bedfordshire (Nadine Dorries), I have not the slightest doubt that it is another area that we will have little option but to address again, certainly within the next decade, as user-driven change in internet and other technological architectures develops further.

The scale of the problems—the need to balance free speech against other competing rights, the need to address the costs associated with striking that balance correctly, and the need to deal with technological and other changes—is vast. In those circumstances it might well be thought that ambitious reform was called for, but, again, that sort of understandable reaction must be balanced with the caution that good legislators enjoy, and which has been the hallmark of the House from time immemorial. Too frequently, ambitious legislative change reveals itself not only to have unintended consequences, but to stultify the development of appropriate solutions by the courts to problems of which no one has yet dreamt. That point was made earlier by my hon. Friend the Member for South Swindon. Incremental change has been the hallmark of good legislation in this and other areas, and the Bill is rightly no exception. The Government are to be commended on that.

I want to deal with three specific aspects of the Bill: the provisions that seek to codify existing substantive law in a manner that is readily accessible and understandable to the layman, the provisions that deal with the defences for which free speech calls in a modern society, and the provisions that seek to bring reputational protection within the reach of those who have not the funds with which to instruct expensive lawyers.

As for the first—the attempted codification of parts of the existing common law as it has now developed, particularly in recent years—my colleagues who sat on the Joint Committee with me are aware that I and others, notably Lord Morris, had our reservations. The difficulty Parliament faces in this area is that our attempts to reduce the nuances of the common law to writing are on occasion ineffectual. The Marine Insurance Act 1906 was a codifying Act prepared by Sir Mackenzie Dalzell Chalmers when he was permanent under secretary at the Home Office. He was subsequently chief justice of Gibraltar. As the draftsman of both the Bills of Exchange Act 1882 and the Sale of Goods Act 1893, if anyone could achieve the codification of four centuries of common law, he was the man. Yet subsequent events tell us that he got things wrong, such as the test in relation to loss, which now differs between marine and non-marine insurance. Can he be criticised? No, but the experience teaches a valuable lesson: that codification is not always successful in reflecting either the existing law or its nuances or flexibility.

Attempted codification can, through drafting error, lead to uncertainty, change and stultification, all of which can lead to increased costs for litigants. However, I am persuaded that it is desirable in clauses 1 and 2—as well as in part of clause 3—only for two reasons: first, because the codification is modest in scope; and, secondly, because, as Lord Mawhinney, who chaired our proceedings, persuaded those of us who were sceptical about either the necessity or desirability of pursuing this path, if the protection of the law of defamation is to be made more accessible, it must be written down as simply as possible in a manner that most can understand. That point was made well by the right hon. Member for Tottenham. While I had reservations, therefore, I am now persuaded that these clauses have their rightful place in the Bill. Better and more erudite minds than mine will have addressed the question of whether or not they do what they are supposed to do. If they do not, it will not be for want of trying.

The second area I wish to discuss is the defences with which the Bill deals. One clause at least—clause 3—involves a slight amendment to the existing defence of fair or, as the Supreme Court seems to have taken upon itself to rename it, honest comment. We are now renaming “honest opinion”. It is my understanding that the change is minor—I would be grateful for confirmation of that from the Minister—and merely removes the necessity for it to be shown that the matter on which the opinion is expressed is in the public interest. If so, there seems to have been little justification for any such limitation in the first place. Any such limitation between public interest and private interest is unjustifiable and unprincipled.

That step is therefore to be welcomed, as is the new defence—in so far as it is a new defence—based upon, or clarifying, Reynolds v. Times Newspapers: responsible publication on a matter of public interest. That does much to clarify what would no doubt have been clarified by the common law in due course, but at vast expense and inconvenience to litigants and those defamed.

The third area on which I want to touch is those parts of the Bill that I perceive to be addressing substantive matters that affect cost and accessibility. Among those is the removal of the presumption of jury trial. In no other significant area of civil litigation has jury trial been retained, at least in practical terms, and the evidence that the Committee received appears to demonstrate that, even in the field of defamation, trials have increasingly been conducted before judges alone. However, the threat of jury trial—with the processes it involves and the reluctance of judges to intervene early to remove matters from a jury, with the consequent prolongation of litigation and considerable increase in cost—has long exacerbated the chilling effects of the existing law, and many of us are only just persuaded that it should even be possible to retain a discretion to permit a jury in a libel or slander case.

[Paul Farrelly]

I agree with what is being said. I have inquired into these matters for several years. The publishing industry and the newspapers have long pleaded for an early resolution of meaning, and the retention of juries is inimical to that. It plays into the hands of those litigants who have no interest in a resolution because their intention is to use force of money and arms to prolong the agony as long as possible.

[Stephen Phillips]

The hon. Gentleman makes a valid and compelling point, and I agree with him. I do not sit on civil cases, but I do still sit as a recorder for a few weeks each year. When judges know there is going to be a jury, they are reluctant to take anything away from the jury because it is supposed to be determining the factual issues. In order to reduce the costs associated with litigation, in most defamation cases there should be no jury, just as there is no longer a jury in other cases heard in the Queen’s bench division, whereas a century or so ago there was the discretion to order one, and, indeed, one was frequently ordered, with all the consequent increase in cost and delay.

The third area on which I want to touch is the one I consider to be the most important aspect of the Bill, clarifying or codifying as it may be: the requirement that in order to be actionable a statement must cause, or be likely to cause, serious harm to the reputation of the claimant. There is, of course, once again every indication that this is the direction in which the common law was moving in any event, but here, in an age when trivial statements are capable of being published immediately, we, as a Parliament, can give our sanction to this worthwhile development and enshrine it once and for all as part of our law. It will lead to fewer cases—certainly fewer trivial cases—being brought forward and therefore to a reduction in costs. It is consistent with the balance that I believe must be struck between free speech and the protection of reputation; it is consistent with the need to render the law accessible in a written form to ordinary individuals not versed in the intricacies of precedent; and it is consistent with enabling courts to act at an early stage in order actively to manage cases and to drive settlement and compromise in those which are serious and require early redress. Like the rest of this Bill, in my judgment—which I think the House shares—these provisions are to be welcomed. They deserve, and should command, our entire and full support.

[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.

[Ian Paisley]

I appreciate the hon. Member’s point, but he must also accept that it does not take Johnny Foreigner to abuse the system. There are many cases brought by UK citizens against other UK citizens in which the process of law is used and contorted under extenuating and tortuous circumstances to the point reached in the case he cites.

[Paul Farrelly]

The hon. Gentleman is absolutely correct. The point about early strike-out and early resolution is a general one, and not simply applicable to libel tourism cases.

I turn now to the public interest, responsible journalism and the chilling effect of our libel laws and their cost. I welcome clause 1 on the test of serious harm and the hurdle that claimants have to clear, although I hear clearly the voices calling for it to be further stiffened and clarified, not least with respect to corporations. Clause 7, which extends qualified privilege, especially to fair and accurate reports of scientific conferences, is especially welcome, as is clause 6, where the Government have listened to the Joint Committee and extended protection to peer-reviewed articles in scientific and academic journals. There is concern about the chilling effects of our libel laws on the medical and scientific community, and Sense About Science should be congratulated on bringing these arguments to the fore after several particularly disturbing cases.

Dr Peter Wilmshurst has been mentioned in passing. He is a respected cardiologist at the Royal Shrewsbury hospital and my own hospital, the university hospital of North Staffordshire. In 2007, he was sued for libel by NMT Medical, a company based in Boston, Massachusetts, over a report carried by a specialist Canadian website about critical remarks he made of one of its medical devices at a US cardiology conference. He was sued here for defamation not once but four times over four years. Dr Wilmshurst, quite responsibly, had been involved in proper trials of the effectiveness of the device. In April 2011, the emperor finally ran out of clothes and NMT went out of business months after failing to post its own surety for costs. The case caused untold stress and worry to Dr Wilmshurst and his family and should never have been allowed to go on for so long. The Bill’s reforms ought to prevent such abuse of process, be it from overseas companies or anybody domiciled in this country.

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

I am most grateful to my hon. Friend for his extremely thoughtful speech. It is worth putting on the record the fact that Dr Wilmshurst was determined to continue and not to retract because he was concerned that, if he did, people might suffer and even die, if a medical device was used that he felt was inappropriate.

[Paul Farrelly]

I agree with my hon. Friend. This case concerned comments made at an academic conference, and the Bill will avert such litigation, but that does not abstract from the general case of people acting in the public interest and being deliberately put through the mill to take them out of the game, to sully their reputation and to bog them down over a long time. Our court system really must address that as part and parcel of these reforms.

Clause 4 addresses responsible publication on matters of public interest. I welcome the clause, but again, as the Bill proceeds, the test will be whether it is a generally progressive reform that overcomes the deficiencies of the so-called Reynolds, or Jameel, defence, which it seeks to codify. That defence was only reasserted this March, in a rare case to reach the Supreme Court—the so-called Gary Flood ruling. As the Bill progresses, I hope that we will see whether the codification in the Bill matches the latest circumstances and developments in common law. The Reynolds defence was a defence of last resort for journalists. It was to be used when a newspaper made an honest mistake in reporting on a matter of interest.

The difficulties in mounting the Reynolds defence have been well rehearsed. The list of 10 principles, first enunciated by Lord Nicholls in 1999, were not supposed to be exhaustive, but in practice they have been used by judges in lower courts as 10 hurdles over which journalists and newspapers must jump to use the defence. It turns out to be a very expensive defence, and it affects how non-governmental organisations compile their reports and decide what they are prepared to write. I hope that during the Bill’s progress the Government can give us comfort that their factors (a) to (i)—not one to 10—will not have the same effect. The House might wish to explore alternatives to bolster the public interest defence.

As I, to much relief, move to conclude my remarks, I want to cite one case concerning the deficiencies of Reynolds and some of the changes introduced in the Defamation Act 1996. On the face of it, The Guardian’s investigation in 2008 into the tax affairs of Tesco should have benefited from Reynolds and other remedies, such as the offer of amends procedure. The Guardian alleged that Tesco, through the use of overseas subsidiaries, was avoiding tax. The company was indeed avoiding tax, but The Guardian, not helped by a lack of co-operation from Tesco, identified the wrong tax—corporation tax, rather than stamp duty land tax. It was an honest mistake. The thrust of the article was absolutely correct: Tesco was involved in elaborate legal tax avoidance schemes, and further investigation by Private Eye showed that it was also elaborately avoiding corporation tax.

In practice, however, The Guardian found that it could not use Reynolds because of how it was being interpreted. Tesco pressed on regardless, despite a lengthy apology in the newspaper and offers of amends. For good measure, it sued the editor personally for malicious falsehood, and by the time it was settled out of court, the case cost a small fortune. Had it gone to the bitter end, some estimates would have put the total at £5 million. For a giant corporation such as Tesco, money was no object. It was perhaps the worst case of inequality of arms that I have come across and that our Select Committee investigation came across, and the worst case of the intimidatory use of the libel laws by a corporation against a publication that we could remember. The test for the Bill is whether such a case could occur again. I encourage the Government to consider the circumstances of that case and learn lessons from it.

That leads me to my conclusion, which concerns one aspect of the Bill where the Government have not accepted a recommendation advanced by both the Select Committee and the Joint Committee on the draft Bill—reforming the ability of corporations themselves to sue for libel. I hope that during the course of the Bill amendments will be tested in that respect.

This has not been an exhaustive comment on the Bill. I welcome it but hope that during its passage the Government, having spent so much time on it, will be receptive to improvements.

--- Later in debate ---

[Robert Flello]

My right hon. Friend chides me for being generous again. I am merely trying to create the right atmosphere for the Committee stage, when the Minister will doubtless accept all our amendments and new clauses.

The hon. Gentleman felt that the Bill was better as a result of the Joint Committee approach, and better than it would have been had it relied solely on evidence sessions. How can I disagree? As I have said, I strongly believe that the Joint Committee’s report needs to be reflected in the Bill.

My right hon. Friend the Member for Tottenham (Mr Lammy) spoke of the balance between freedom of expression and protection of reputation. He rightly raised points about companies and corporations, and referred briefly to the consequences for jury trials.

In his substantial contribution, the hon. and learned Member for Sleaford and North Hykeham (Stephen Phillips) rightly observed that costs were driven by procedure. The draft Bill that was considered by the Joint Committee focused strongly on that point, and we need to see some movement on that from the Minister.

My hon. Friend and neighbour the Member for Newcastle-under-Lyme (Paul Farrelly) returned us to the theme of responsible journalism. He took us on a trip down memory lane when he talked about the infancy of Google and the like. He then drew attention to some of the good aspects of the Bill and some of the omissions, such as the omission of provisions relating to corporations.

[Paul Farrelly]

I also took the House on a trip down memory lane when I mentioned the issue of the Russian mafia and Russian oligarchs, which is ever present today.

[Robert Flello]

I am very grateful to my hon. Friend for that comment. I knew he would not want to miss the opportunity to add it, so I paused just long enough for him to rise to intervene. He makes a good point. We must not allow Russian mafia—criminal gangs—to suppress free speech in the UK. That is outrageous.

The right hon. Member for Carshalton and Wallington (Tom Brake) highlighted a number of areas that we need to address. I look forward to perusing Hansard tomorrow to refresh my memory so we can address them in Committee.

I was impressed by the contribution of the hon. Member for Hastings and Rye (Amber Rudd), in part because she managed to mention her constituency on so many occasions in the context of defamation law. She made a very good speech, in which she said it was too easy for the rich and powerful to stifle free speech. I entirely agree.

The hon. Member for Cambridge (Dr Huppert) is no longer in his place. He gave one of his customary long short speeches. He talked about the chilling effects that we have seen and went through quite a few cases. He hit the nail on the head when he said that clause 5 on website operators addresses a complex area that is difficult to get right. I agree.

The hon. Member for Hexham (Guy Opperman) talked about his personal experience as a mediator and libel barrister. The hon. Member for South Derbyshire (Heather Wheeler) welcomed the Bill and the cross-party approach. The hon. Member for North East Somerset said in a complementary way—with an “e” not an “i”—that, instead of having consensus, he preferred holding to the cut and thrust principle. If he serves on the Committee, he may well see plenty of cut and thrust as we ensure that the Bill is knocked into good shape. I thought he was a little unfair to his coalition colleagues, but he redeemed himself by reciting “Othello”, I think—I hope I am not wrong about that. He also made the very good point that those responsible for websites must take responsibility for the content on them. Of course there need to be protections where website operators act responsibly and do the right thing. We will need to see the regulations on that, and we have not yet had sight of them. I never thought I would hear the hon. Gentleman say he was an anti-establishmentarianist —if there is such a word—but it was interesting to hear him say so and to talk about the battle between libel and free speech.

We have had a good debate and, in view of the consensus on the key principle, we will not seek to divide the House this evening. However, I again stress to those on the Treasury Bench that they should see our acceptance of the principle and our willingness to work collaboratively as an opportunity to embrace positive improvements so that we do not rehearse the protracted warfare that gave Ministers a number of bloody noses in the other place. We do not want to see that. Instead we want to see a good Bill come out of this process.

So let us move into Committee with a genuine desire to improve this important piece of legislation further.

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

Legal Aid Reform

Paul Farrelly Excerpts

Thursday 3rd February 2011 Commons Chamber

[Yvonne Fovargue]

I agree with my hon. Friend. In times of stress, people often need the support of a friendly face.

For every £1 of legal aid expenditure on welfare benefits in the Wigan borough, £20.50 per year of additional benefit is obtained for clients. Nationally, for every £1 of legal aid expenditure on welfare benefits, the state potentially saves £8.80.

[Paul Farrelly (Newcastle-under-Lyme) (Lab)]

rose—

[Yvonne Fovargue]

I would like to make a little progress, because the debate is quite late.

Debt is another area that will be removed from the scope of legal aid, except for cases in which the client’s home is at immediate risk. The impact assessment shows that 55% of debt clients are female and that 30% are likely to have a disability. Yet again, the consultation paper states that, although debt problems are important to the individual, they are not important enough to warrant legal aid funding.

I have seen the effects of debt on individuals, and the cost—both human and to the state, including to the NHS—of not resolving debt issues at an early stage. A project that I was involved in used a recognised NHS scale to monitor stress levels before and after the advice process dealing with unsecure debts. The primary care trust believed that in the first nine months of the project, three suicides had been prevented. At what cost? In Wigan, the citizens advice bureau deals with 616 debt clients per year at a cost of £123,000 to the state. It reschedules £4.83 million worth of debt and writes off £3.47 million worth. For the expenditure of £123,000, £367,000 is saved.

I support the expansion of financial education into schools and communities, but that will not assist people who are in debt now. My experience is that when the issue is raised in schools, more parents arrive at the advice agency’s door because they are made aware that there is somewhere to go. They almost feel that they have got permission to go there.

[Paul Farrelly]

Every conscientious MP knows the value of citizens advice bureaux. Quite simply, without them, our offices would be swamped. That prospect awaits us. My hon. Friend has highlighted the situation in Wigan. Citizens Advice has highlighted that 730 fewer people will receive specialist debt advice in Stoke-on-Trent, 1,280 fewer in my area of Newcastle-under-Lyme, and more than 1,500 fewer in north Staffordshire. Does she agree that this is not only a false economy, but a heartless cut?

[Yvonne Fovargue]

I agree with my hon. Friend. I will go on to give some figures on the impact that the proposals will have on advice agencies.

Agencies that provide telephone advice such as National Debtline have a great role to play, but they cannot replace face-to-face advice, as my hon. Friend the Member for Nottingham South (Lilian Greenwood) said. The reality is that people need to sit down with an adviser. They need the reassurance and trust of a relationship that is built up over time.

There is a reason why social welfare law problems, including employment, housing, debt and benefits, were given primarily to advice agencies: the interlinking of those problems. Limiting the scope and the type of the problems that advisers can deal with limits their ability to deal with the whole person and with all their issues. For example, legal help might prevent somebody from losing their home because of debt, but it will not address the causes of that debt, such as unfair dismissal or a refusal of sickness benefits. I could give examples of many areas that are taken out of the scope of such help, but I believe that colleagues will mention them. The list is extremely long and access for the most vulnerable is severely curtailed in many cases.

I shall turn now to the effect on citizens advice bureaux and not-for-profit providers. The Ministry of Justice estimates that this sector will lose 97% of its legal aid funding. Currently, local citizens advice bureaux receive £26 million of legal aid funding, with the largest amounts being spent on debt and benefits. If the proposals are implemented, £20 million will go in one fell swoop and there will be a significant impact on the ability to deliver not only legal aid-eligible services but all other client services. A survey undertaken by Citizens Advice showed that if the proposal went ahead, 80% of local bureaux would have to withdraw specialist services, 85% would have reduced capacity to meet clients’ needs and, most shockingly, 51%—more than half—felt that there would be a risk to the continuation of the whole CAB service in their borough.

Legal aid funding cannot be treated in isolation from other sources of advice funding, especially as the consultation assumes that people can access other services to pick up the slack. The free advice sector is suffering disproportionately from public funding reductions, and even agencies such as the Royal National Institute of Blind People, which have no legal aid funding, have approached me to say that they could not deal with any increase in demand for their services due to the impact of the proposals.

Defamation Law

Paul Farrelly Excerpts

Thursday 15th July 2010 Westminster Hall

[Paul Farrelly (Newcastle-under-Lyme) (Lab)]

I congratulate the hon. Member for Maldon (Mr Whittingdale) on his re-election as Chair of the Culture, Media and Sport Committee, from a shortlist of one. I thank my Labour colleagues for re-electing me, in a rather wider exercise of democracy, to the Committee. I also thank Mr Speaker for agreeing to the debate. He was forthright in his defence of free speech during the Trafigura affair last autumn, in which I played a walk-on part. If I may indulge in a plug, Mr Benton, only last Sunday I gave a talk with David Leigh of The Guardian on Trafigura and the wider issues of libel and media law reform at the excellent centre of investigative journalism at City university London.

The debate is certainly timely, allowing us to discuss for the first time the Committee’s report on press standards, privacy and libel, which the general election interrupted. It also keeps up momentum for reform in the House of Commons, following the excellent debate last Friday on Lord Lester’s private Member’s Bill in the other place—the House of Lords, to adopt modern terminology in libel. I shall refer to that at greater length in a moment.

We published our report on 24 February. It was a marathon effort, as I am sure the Chair of the Committee agrees, having lasted from autumn 2008. That hints at the complexities and the sheer range of issues involved in reforming that area of law. I was certainly not the only member of the Committee who was glad to clear the decks for the general election, which was looming over us.

There was much unfinished business in the field as the general election became all-consuming, such as taking forward in law Sir Rupert Jackson’s wide-ranging report on civil litigation costs, to which the Minister referred, which was published in January. There was also the review by the former Justice Secretary, my right hon. Friend the Member for Blackburn (Mr Straw), on libel and the internet. He also produced proposals for reform of conditional fee agreements, about which I shall say more later. We also followed up on the conclusions of the report from the Ministry of Justice’s libel working group, which was published at the end of March, just as we were about to go to the polls. The previous Government’s response to that included a commitment to a draft libel reform Bill, and the House should give a strong vote of thanks to my right hon. Friend for all his work and effort in that area. I was glad that that work was acknowledged by Lord McNally, the new Minister, in last Friday’s debate.

I am glad that the coalition agreement included the following single-line commitment:

“We will review our libel law to protect freedom of speech.”

However, there is always a danger after an election, with so many competing interests, that action might be stillborn, despite the fine words. The danger of a lack of progress was highlighted before the election by the fate of the statutory instrument that was intended to address the matter of costs in conditional fee agreements. It was mauled in Committee by Members from all parties. It is not necessary to dwell on the ins and outs of that, as it is better in the cause of reform to make as many friends and as few enemies as possible. The proposal was to limit success fees in conditional fee agreements in defamation cases. That was certainly a blunt instrument. In our report, we said that recoverability from the defendant should be limited, meaning that lawyers and clients could haggle. The instrument that came forward, which would have limited that across the board, was always open to the attack that it would give renewed carte blanche to unscrupulous tabloids to print yet again what they liked and that it would limit access for ordinary people without the means to try to salvage their reputations.

It was made clear before the election that that instrument was intended to be an interim measure that could be achieved quickly without primary legislation, and in anticipation of wider reform of libel law and costs following the Jackson review. While the newspapers drowned their sorrows after the statutory instrument went down, I suspect that the biggest bar bills were run up by the likes of Carter-Ruck and Partners and the so-called Lawyers for Media Standards—I suspect that it was a good day for those other well known firms: Krug, Bollinger and Dom Pérignon.

At the weekend, those of us at the City university London summer school wanted to raise a glass to Lord Lester for keeping up the pressure for reform through his excellent private Member’s Bill, and to all the organisations involved in crafting and supporting the Bill, including Index on Censorship, English PEN, Sense About Science and The Guardian, the BBC and The Times from the media community. We also wanted to raise a glass to Lord McNally, who confirmed on Friday that the Government would pick up the ball left by my right hon. Friend the Member for Blackburn and produce a draft Bill for consultation. Furthermore, he set out a timetable: a draft bill will be published early next year for pre-legislative scrutiny; and, I hope, a substantive Bill will be included in the Queen’s Speech setting out the 2011-12 legislative programme. That is the yardstick for reform that has been clearly set out, and by which progress will be measured. Little wonder that Lord Lester’s reaction on Friday was so measured:

“when I hear my noble friend...speak as I did now, I wonder whether I am alive at all or whether I am in heaven.”—[Official Report, House of Lords, 9 July 2010; Vol. 720, c. 483.]

I first met Lord McNally shortly after my election in 2001 when we sat together on the Joint Committee on the Draft Communications Bill, the so-called Puttnam Committee. I was aware of his good work on the Labour Benches in Harold Wilson’s day, before wrangles with the left in our party led him to his current berth. He is a sound man and we look forward to working with him on reform. We look forward to the Minister today confirming the Government’s intentions and perhaps giving more detail on what is proposed.

I will not discuss all the complexities and controversies involved in defamation reform today, but I will single out a few areas. The devil will, of course, be in the detail. Despite the forces of reaction gathering to oppose reform—it reminds me of a scene from “The Lord of the Rings” in which Sauron summons his “Carter-U'Ruck-hai” and the Orcs, those “Lawyers for Mordor Standards”—a great deal of consensus has built up on the way forward in several areas, which is encouraging. For example, with regard to libel and the internet, the previous Government, the Select Committee, the Ministry’s libel working group and Lord Lester’s Bill have all agreed that the measure should relate to single publication, limited to a year after appearance, aligning the online law with the law dealing with publication in print and giving more certainty to people who maintain online archives and databases. Libel tourism is another area on which there is increasing consensus, and that is increasingly connected to the law on the internet. The consensus from all those bodies is that we should tighten the legal procedure rules and throw out the abuse of our courts and laws.

The role of parliamentary privilege in protecting free speech is also an area of consensus. That was highlighted in the Trafigura affair, and not for the first time, but nothing was done on each occasion. Lord Lester’s Bill addresses that simply and agrees with the Select Committee that we need a modern statute. We also look forward to the conclusions of the review of practices on super-injunctions being carried out by the courts.

Where there is disagreement, it seems to centre, refreshingly, on not rushing to judgment and instead consulting, as our report recommended, so that changes in the law do not have harmful, unintended or unforeseen consequences. I will mention a few major examples. We should consider statutory backing for the public interest defence to protect decent investigative journalism while maintaining the protection needed for individuals whose reputations are wrongly and irresponsibly traduced. The Committee was inclined first to put into statute a widened definition for court decisions on responsible journalism—the so-called Reynolds defence. I took the precaution of consulting former newspaper colleagues who are at the coal face of investigative journalism, and they advised taking care and consulting. That was our recommendation. That caution on getting the change right was reflected in the debate on clause 1 of Lord Lester’s Bill last Friday.

However, there is an urgent need to protect legitimate scientific and medical inquiry and honest opinion and comment. It was good to see the Court of Appeal in the Simon Singh case recently decide that libel courts are not the forum in which to settle issues of scientific or medical proof or controversy.

The other major area on which we urged wide consultation was that of corporations and defamation. There was a concern that deep-pocketed litigants could afford to mount libel cases—it is of little consequence to major corporations that the costs could run into millions. In part, the actions were designed to chill investigative journalism and take good journalists out of the game—it takes so much time and effort to counter libel actions. In our report, we highlighted what I describe as the most flagrant abuse of libel laws in recent years in this country: the case that Tesco brought against The Guardian. The substance of The Guardian’s allegation about tax avoidance was true, but the newspaper made mistakes along the way and, even though it was later proved that Tesco was avoiding the tax in question, The Guardian felt compelled to settle out of court simply because the costs were mounting inexorably.

In his Bill, Lord Lester does not propose any reversal of the burden of proof for corporations, but requires them simply to demonstrate likely financial loss, which they do not have to do now. I, and I think many people who were in the debate in the House of Lords, do not believe that that goes far enough. Determining what constitutes likely financial loss might, in itself, be a recipe for more costs. For example, should that include shareholders? In the Select Committee report, we made recommendations, and urged the Government to consult widely and consider the experience of other countries, such as Australia, where the law in this respect has been reformed in recent years.

The big elephant in the room, which Lord Lester’s Bill does not address, is cost. Cost is the overriding issue. Many of the problems with our libel laws would not be so pressing if it were not for the cost. We are aware that the Government are considering taking forward the Jackson review, but that might take years. We need some indication from the Government as to when the cost issues will be addressed. They are deliberately not addressed in Lord Lester’s Bill, but they are the major issue for responsible investigative journalism in this country. My right hon. Friend the Member for Blackburn tried unsuccessfully to achieve progress in the previous parliamentary Session. It is imperative that we get some progress now.

--- Later in debate ---

[Mr Whittingdale]

I entirely endorse the hon. Lady’s comments. That is exactly the value of Select Committees, and I am pleased to say that they are becoming more widely recognised. When we set off, we did not anticipate that the inquiry would be quite as long and detailed as it was. It was, however, one of the most fascinating and satisfying inquiries in which I have participated. At the same time as we were having the debate in the House, there was a substantial debate and a growing clamour outside the House. I should pay tribute, as my colleague from the Committee has already done, to the work of Index on Censorship, English PEN and Sense about Science. As part of their campaign they mounted a petition, which I think received 52,000 signatures, and I imagine that every Member of the House will have received e-mails from constituents expressing their concern about the operation of the libel laws. It is not an immediately obvious subject for generating great concern, but it is becoming such an important issue that a lot of people feel very strongly about it.

The two principal conclusions that we reached—I will go into a little detail in a minute as to why we reached them—were that, in this country, the way the libel laws are balanced and the costs attached to going to court in a libel action are having a seriously damaging effect on investigative journalism, standards within the press and legitimate scientific debate. As a passionate believer in freedom of speech and in the essential role that a free press must play in a healthy democracy, I believe that that matter should be of concern to every Member of the House.

However, as if that were not enough, the Committee also discovered that Britain is now cited alongside authoritarian countries as a place where the press is being suppressed because of the actions of the state—in this case, the libel laws. Committees are sometimes criticised for going on foreign trips, but, in this example, it was immensely valuable that we were able to go to America and talk to some of the people who were directly affected, including authors and journalists. We also discussed with the American judiciary how they viewed our system, and we spoke to legislators at state and federal levels. I shall deal later with libel tourism, which is very important.

A host of different issues affect the operation of our libel laws. Some of them are being dealt with, or at least addressed, in Lord Lester’s Defamation Bill, and I was pleased to hear my hon. Friend the Minister speak about the Government’s intention to examine all the issues and, in due course, to produce a draft Bill that we can debate at length. It is reassuring that they have taken on board the necessity of addressing the matter urgently. However, as the hon. Gentleman said, probably the biggest issue affecting the whole libel system in the UK—how much it costs for somebody to defend a libel action—is not covered by Lord Lester’s Bill. None of us imagines that lawyers are ever cheap, but, in the case of libel, trials are often very long, no legal aid is available, and solicitors and barristers charge, frankly, eye-watering sums.

We had a slightly surreal debate in the Committee between various lawyers as to whether the average was £400, £500 or even £600 an hour. To most people, any of those three figures is extraordinary, and, given the time that can be taken, it is easy to see how the clock ticks quickly and the amount of money increases rapidly, to the extent that it is now said that the cost of a libel case in the UK is some 140 times the European average.

[Paul Farrelly]

Does the hon. Gentleman agree that the hourly rates actually double in many of the cases that are brought under conditional fee arrangements? The record shows that the so-called no win, no fee scenario is, as one would expect, nearly always a case of always win, double the fee.

[Mr Whittingdale]

The hon. Gentleman pithily encapsulates the situation, which I shall come on to later. He is absolutely right, and that makes the situation even more damaging for any defendant facing a libel action.

My hon. Friend the Minister referred to the work of Lord Justice Jackson, who gave evidence to the Committee alongside the Master of the Rolls and addressed the broader question of costs in all civil litigation. I know that the Government have listened to his advice, which was that we should not pick out one particular branch of civil law and address that, but address the whole thing together. As my hon. Friend said, that was not the view of the previous Government, and I have some sympathy with their position. The matter is urgent, which is why the then Justice Secretary, the right hon. Member for Blackburn (Mr Straw), decided to move on defamation cases ahead of the rest of civil litigation. I hear what the Minister says, but I hope that there will not be further delay—we must address the matter quickly. By all means, let us address it in the round and look at all the costs involved in civil litigation, but let us not spend a long time doing so.

Various solutions have been advocated, and we probably need to adopt a combination of them. The first thing the Committee considered was the suggestion simply to cap costs—to set a limit beyond which one should not be able to go. We accepted the evidence we received that that is a blunt instrument. It is difficult to predict the direction of a case, so capping is probably not a realistic solution. However, various solutions undoubtedly could be introduced: greater cost budgeting and case management, and a pause every now and again to see how costs are progressing. Those are sensible options, but the real problem, as the hon. Gentleman said, is conditional fee arrangements, which were introduced with wholly good intent. I absolutely accept that the wish to make the legal process available to people who would otherwise struggle to afford it is an entirely worthy objective. The intention was that a legal practice would be allowed to charge a success fee if it won a case, in recognition of its risk in taking on a CFA. If it lost the case, it would not get any money, so the fee was a return for the risk.

The problem we discovered fairly rapidly was that the practices that specialise in CFAs are very thorough and do not actually take any risks. They go through the cases that are put to them for potential CFAs and accept them only if they are almost certain that they will win. We struggled to get the exact figures for the proportion of CFA cases that were won and lost, but it was clear that, overwhelmingly, cases taken on a CFA were a pretty safe bet. On that basis, we found it difficult to understand why firms needed a 100% success fee on top of their costs. As I said, the costs are astronomical to begin with; they then double them, as the hon. Gentleman indicated, by imposing a success fee.

That is not the end of the story. An additional cost is after-the-event insurance, which is a premium taken out by the claimant in case they do not win, and which is chargeable to the defendant in the event that they lose. Such insurance can cost anything up to £65,000 plus tax for every £100,000 worth of cover, so we are now talking about almost 270% of the costs that can be awarded against a defendant in a libel action. The extraordinary thing about after-the-event insurance is that if the defendant loses, obviously he will have to pay the claimant’s premium, but if the claimant does not succeed, he does not have to pay the premium. The insurance is marketed on the basis that one can take it out but not have to pay for it at all. It is simply another cost imposed on the defendant, and, because there is really no incentive for a claimant to keep costs down, it is a licence for companies to set their own sums and print money.

The effect of those three things taken together is that now many newspapers will not seek to defend a libel action, even if they are convinced that they have a strong case. They will regard it as quicker and cheaper to settle out of court. Perhaps even more worrying is that often they will not print the story in the first place, simply because of the danger that they might get sued. That chilling effect on press freedom and journalism causes great concern.

[Paul Farrelly]

The hon. Gentleman mentioned cost-capping and the importance of speedy reform. Does he agree that costs have become so surreal that when capping is mentioned as a measure to try to reduce them, a great number of the legal fraternity argue that it could increase costs because of the cost of cost-capping meetings, and that, as a consequence, nothing happens?

[Mr Whittingdale]

I entirely agree with my hon. Friend—I call him my hon. Friend in the spirit of the Select Committee. What he describes introduces another legal argument, which is, of course, billable. I will not say that this is a racket, but the lawyers do very well out of the process.

The Committee came up with a couple of recommendations to address these problems. The previous Government suggested that a 10% cap be set on success fees, but as my hon. Friend the Minister rightly said, the proposal did not find favour in the House when it was introduced before the election. The Committee’s solution was not quite to introduce a straight 10% cap, but to say that the success fee that could be recovered from a defendant should be set at 10%. We did not feel it right to interfere with the arrangement between the claimant and their legal representatives; if the claimant wishes to pay a proportion of their damages in the form of a success fee, that is a matter for them. However, we said that the legal entitlement to recover from the defendant could be capped at 10%. Furthermore, for the reasons that I have set out, I view after-the-event insurance with some scepticism, and the Committee said that it should be made irrecoverable in its totality. I remain of the view that those two measures are sensible and would go a long way to removing the sting in conditional fee arrangements. Obviously, that will be a matter of great debate over the coming months, and I leave it to the Minister to ponder those issues.

The issue is not just costs; there is a whole variety of other issues, many of which Lord Lester’s Bill addresses. One issue is the multiple publication rule. Libel laws were written when the internet did not really exist, and its advent has changed everything. That is true of the permanence of articles and statements, which can now be found on Google at the press of a button. The old Duke of Brunswick case also becomes much more serious in the age of the internet. Clearly, it is widely recognised that that should be addressed.

There are a couple of defences that must, on the face of it, make sense, but which are slightly unclear in legal terms at the moment. One is the defence of fair comment, and I want to say a quick word about the impact of libel law on proper scientific debate, an issue on which Sense About Science has done a lot of work. I pay particular tribute to Simon Singh, who is a very brave man for deciding not take lying down the legal action brought against him by the British Chiropratic Association after he suggested that there might be some debate about the medical effectiveness of chiropracy in treating certain conditions. He was willing to put up a great deal of money from his own account to appeal the judgment. Several scientific journals now say that they hesitate before carrying perfectly legitimate scientific papers that contribute to debate, because of the potential for organisations, and particularly big corporations, to bring libel actions. Libel is about whether someone is defamed; it should not be used to interfere with scientific discourse, which is important if scientific knowledge is to advance. The fact that Simon Singh was willing to defend himself and proved triumphant in the end was important and drew attention to the fact that the issue needs to be addressed.

The other defence that the Committee looked at, and which the hon. Gentleman mentioned, is the Reynolds defence of responsible journalism. The two landmark cases of Reynolds and then Jameel set out the hurdles that a defendant must demonstrate they have got over before they can use the defence of responsible journalism. There is some debate about the difficulty of meeting each of those tests, with the result that few defendants have used this defence, which has been a cause of concern to us.

It was drawn to my attention not more than two hours ago that the outcome of the Flood v. Times Newspapers case has been published. This is the first occasion on which the Court of Appeal has overturned a Reynolds defence. Times Newspapers used a Reynolds defence in an action brought against it by a Metropolitan police sergeant. It said that what it had published was in the public interest and that it had met the relevant tests, but the Court of Appeal overturned the initial judgment on appeal. I do not want to say anything about the merits of the individual case, but I imagine that the fact that there is a further constraint on using the Reynolds defence will mean that adopting it becomes even less attractive to serious newspapers. I share the view of the hon. Gentleman that putting these things into statute carries a risk as well and that it might not be the most sensible way of strengthening them. However, it is important that it should be a legitimate defence for journalists investigating stories that are plainly in the public interest—we are talking not about muck-raking, but about serious investigative journalism—to show that they have used their best endeavours to meet all the various tests. We may need to look at that again in the light of certain developments.

[Paul Farrelly]

Does the hon. Gentleman agree that the conclusions of the libel working group also highlighted the danger that a codification in law could become a rigid checklist in itself? It would also be very costly to mount a defence. However, the group was more sympathetic to statutory backing for the principles that underlie a defence of responsible journalism, which have already been developed in common law. That might be a fruitful way of proceeding.

[Mr Whittingdale]

The flexibility that that might provide is clearly better than having a very detailed set of boxes, each of which has to be ticked. The hon. Gentleman’s suggestion is probably a sensible way to develop things.

Taken together, all these issues would go some way towards not weakening our libel laws, but restoring people’s absolute right to defend their character and reputation. The other side of that coin, however, is the right of the press to investigate and to expose, and the right of scientific journals to carry out legitimate debate. I hope that all those things will feature in the Government’s draft Bill.

I turn now to the way Britain’s libel laws are viewed overseas, because that should be of huge concern to the Government. The issue is encapsulated in the case of Rachel Ehrenfeld, whom the Committee met when it went to the States. She wrote a book in which she suggested that a Saudi Arabian business man, who has Irish citizenship, was in some way providing financial support to al-Qaeda and terrorism. An action was brought against her in the UK on the basis that 23 copies of the book had been sold here. Obviously, it was also accessible on the internet, so there was publication in that sense as well. However, the book was not widely available in the UK, and it is fairly clear that the case was brought here not because this was where the damage was done, or because Rachel Ehrenfeld or the Saudi Arabian had British citizenship, which they did not, but because the libel laws here were seen to favour claimants. On the back of that, we discovered that there are now widely shared fears in the United States. The Association of American Publishers submitted a statement to the Committee on the Judiciary of the US House of Representatives, which described libel tourism as

“the cynical exploitation of plaintiff-friendly foreign libel laws as a weapon to intimidate and silence U.S. authors and publishers.”

There is no doubt about which foreign libel jurisdiction it had in mind.

--- Later in debate ---

[Paul Farrelly]

I do not want this to become a conversation between members of the Select Committee, but does the hon. Gentleman agree that in the internet age matters go rather further than that? We received evidence that aggressive firms in the field of so-called reputation management—the two names that came up most frequently were Schillings and Peter Carter-Ruck and Partners—were finding so-called defamatory articles on the internet and scouring the world for potential plaintiffs on whose behalf they could act, simply because the article was accessible from the UK. They could point out to such people the fact that they might well win under Britain’s libel laws and say, “So bring an action.”

[Mr Whittingdale]

I think that there is evidence of that. I hesitate before accusing the two firms that the hon. Gentleman named, although they happened to crop up time and again in evidence. Concerns have been expressed about the way CFAs are used in ambulance-chasing cases—with ads on television saying, “Have you fallen over? Ring up this lawyer, because you can win thousands of pounds.” This is basically the same thing, so there is a legitimate concern.

I think that what should really make the Government concerned, in relation to attitudes towards the British system, is the fact that it is not only publishers and newspapers that are making such comments. The UN Committee on Human Rights, members of which we met, has been very critical of the UK system. In addition, the US Government, at state and federal level, is taking action in response. We went to Albany, where New York state has passed what is called the Libel Terrorism Protection Act. The title is intended to suggest that we have been giving active succour to terrorism through our libel laws. The Ehrenfeld case was the cause of it; indeed, Rachel Ehrenfeld went to the New York state legislature to press for action to be taken.

The Act allows a judgment against an American citizen to be ignored or overturned in America if it is shown to be a breach of his or her first amendment rights. However, that has happened not only in New York state; such legislation is appearing in other states and has also passed into Congress. I have the report of 13 July—two days ago—stating that the Senate Judiciary Committee unanimously passed bipartisan legislation aimed at protecting authors and journalists from libel law suits filed abroad. Essentially, the New York Bill has now been taken up, and it looks as though it will pass into federal law.

When the previous Lord Chancellor, the right hon. Member for Blackburn, gave evidence to the Select Committee, he said first that he was not convinced that the situation was a great problem. Secondly, he did not seem terribly fussed even if foreign Governments were taking the attitude I have described. He said that we had learned that there had been no representations from the British embassy to defend our system; those concerned had sat by and let these things go on. I find it profoundly worrying that Britain’s closest ally—the country that, whatever one thinks of America, is regarded as a bastion of free speech—should regard us as so restrictive and hostile to the principle of free speech that it feels it necessary to pass an Act such as I have outlined. Although that Act does not specifically refer to the UK, it is perfectly clear that it is directed at this country. I hope that, given that the Bill is now actively passing through the Senate and Congress, the Minister will start to talk to American legislators as a matter of urgency, and perhaps reassure them that the Government intend to deal with the issue.

[Paul Farrelly]

Does the hon. Gentleman agree that, very soon after making those statements to the Select Committee, the previous Lord Chancellor was open-minded enough to change his mind completely? He added the issue of libel tourism firmly to the remit of the libel working group, and one of the four main areas on which it reported at the end of March was libel tourism and reforms to court procedures to stop abuse of process and abuse of forum.

[Mr Whittingdale]

Indeed, that is right, and the hon. Gentleman is correct to draw attention to it. I am delighted that the right hon. Gentleman came round to our view that the matter was a serious one, that needed to be addressed.

One or two other matters occurred to the Committee, one of which was referred to in passing by the hon. Member for Newcastle-under-Lyme, although, perhaps out of modesty, he did not devote as much time to it as it deserves. That is the issue of this place and the reporting of our proceedings. It is well known that the hon. Gentleman uncovered the existence of a super-injunction taken out on behalf of Trafigura and tabled parliamentary questions about it, which led to a spat between Carter-Ruck and The Guardian about whether it was legitimate to report the fact that those questions had been tabled. There is no question about where parliamentary privilege lies: the hon. Gentleman is completely protected under parliamentary privilege in tabling those questions.

The situation becomes a lot less clear—this was news to me—in respect of a newspaper’s right to report the fact that the hon. Gentleman had tabled the questions. Previously, I had the impression that the reporting of responsible activity was allowed, under the Parliamentary Papers Act 1840, but Carter-Ruck argued vigorously with The Guardian that the super-injunction prevented the newspaper from reporting the questions. The Guardian’s in-house lawyer confirmed that that was her view as well. It later became apparent that the House authorities probably shared Carter-Ruck’s view. In my view, that is a profound threat to this place.

In a way, there is no point in our being able to say things in Parliament or table questions if nobody is allowed to report them. In the Select Committee’s view, any uncertainty about reporting parliamentary proceedings and the extent to which privilege allows Members of Parliament to raise matters with a degree of protection against libel action needs to be addressed quickly and removed. Lord Lester has included this in his Bill.

The two last things that I will mention are not principally about libel, but touch on it. We Committee members spent a lot of time considering privacy, and the balance between articles 8 and 10 of the European convention on human rights, which has been used to bring in a privacy law in this country. That matter touches on libel because some people now choose to use privacy legislation rather than libel legislation. Those two kinds of legislation are not separate. Under privacy legislation, people do not necessarily have to say whether the story is even true—they can just use such legislation to prevent it from being published. That needs to be borne in mind if we are going to have the thorough overhaul that I hope the Minister intends.

The last area that I should like to mention, which is complementary to libel law, is the self-regulatory mechanism adopted by the press—the Press Complaints Commission—which the Committee supports. There is a lot of debate about the effectiveness of the PCC, but it offers an alternative. If people choose to go to court and mount a libel action, it can take a long time and cost a lot of money, but at the end they might get a definitive statement that they have been defamed—and they may get a lot of money as a result. The PCC can take action quickly and is free, but people do not get any money: the most that they can hope for is a judgment by the PCC that the newspaper was wrong to carry a story. Each option has alternative attractions; each mechanism is useful, and one cannot substitute for the other.

The Committee was concerned about the most serious serial libel that has taken place in the past 50 years—perhaps within memory—which is that suffered by the McCanns, who were subjected to libel not once, but day after day, and not just in one newspaper, but in newspapers across Fleet street. That was eventually recognised and a lot of apologies were made, and payments were also made, but it cannot have made up for what they suffered at what was already a terribly distressing time for them. We were concerned that the self-regulatory mechanism of the press appeared to have failed in that instance, and we made a number of recommendations about how it should be strengthened. The role of the PCC needs to be borne in mind when looking at libel, because it and the courts deal with similar problems, but perhaps from different ends.

I think that I have spoken for long enough, but I have spoken for so long because we in the Committee spent a great deal of time on this serious issue. I am pleased that statements in the manifestos of all three parties, and in the programme of the coalition Government, are now being progressed and that the Government have made it clear that they are determined to take action in this area. I hope that we, as a Committee, have helped that process and that we will continue to do so in the debate on the draft Bill when it appears.

[Helen Jones (Warrington North) (Lab)]

It is a pleasure to speak under your chairmanship, Mr Benton.

We have had an interesting debate. I congratulate the members of the Culture, Media and Sport Committee on their contributions to the debate; they have done an enormous amount of work on this issue. I was pleased to hear the Minister set it out clearly that, although he wants to take action to reform the libel laws, that is a complex matter and a delicate balance that has to be struck. He set out clearly the need to protect academic and scientific debate and investigative journalism, and the problems in respect of the costs in civil proceedings, particularly libel proceedings.

My hon. Friend the Member for Newcastle-under-Lyme (Paul Farrelly) also stressed the need to get the change right, and I think all hon. Members would agree. He also touched on the role of corporations in defamation cases and the possible damage to investigative journalism that can result from that.

The Select Committee Chair, the hon. Member for Maldon (Mr Whittingdale), set out clearly the state of the law and the damage that can result from that, particularly the problems that we are dealing with in respect of success fees and costs.

All the contributions to the debate reflect the real concern about the state of the law and the complex nature of the reforms that are needed. The Select Committee report on press standards, privacy and libel made a useful contribution to the debate. Others have made useful contributions, too. For instance, a number of early-day motions have been tabled in the House, and English PEN and Index on Censorship produced reports, leading the then Secretary of State for Justice, my right hon. Friend the Member for Blackburn (Mr Straw), to set up the Ministry of Justice working group on libel, which produced a report last year.

We all face the problem that any reform of the law needs to do a number of different things: protect the right of free speech, particularly following the Singh case; protect that right in free scientific debate and inquiry; and protect the rights of campaigning investigative journalists who publish articles that are in the public interest. But it also needs to ensure that those who are defamed, particularly those of modest means, have recourse to the law to protect their reputation. The hon. Member for Maldon mentioned the libels suffered by Mr and Mrs McCann. I do not think that any hon. Member in this Chamber would suggest that people in such a position ought to be debarred from having recourse to the law because they are not wealthy.

We face difficulties in drawing up a new law, but I am pleased that all parties are now committed to doing so. The Labour party manifesto for the election committed us to changing the law to protect the right of defendants to speak freely. The Conservatives and the Liberal Democrats also committed themselves to reform. I genuinely do not believe that this is a party political issue and I say that as someone who is normally a tribal politician. The House needs to scrutinise this issue carefully to get the balance of the law right.

It is clear that so-called libel tourism is causing real concern. In fact, English PEN and Index on Censorship argued that English libel law imposes unnecessary and disproportionate restrictions on free speech, and that the effect reaches throughout the world. Many of us might not go as far as that, but it was clear when the Select Committee considered the matter that restrictions may be necessary on claimants whose primary place of residence or business is not in the UK, and that they should perhaps face additional hurdles before being able to bring a case here.

It is also clear that the scope of the defence of public interest set out in the Reynolds and Jameel cases needs clarification. I hear what hon. Members have said about the risks of putting that defence into statute—I am minded to go down that route—but we must consider the rule on multiple publication, particularly in the age of the internet. The Select Committee suggested a limitation period of one year, with the courts having discretion to extend that. Again, it was clear that a balance must be struck between allowing individuals to protect their reputation, and ensuring that newspapers and other organisations are not forced to remove articles from the internet simply because the passage of time made it difficult and costly to defend them.

The report for the Ministry of Justice set out two options: a one-year limitation rule, or retaining the rule on multiple publications but allowing exceptions—perhaps the extension of qualified privilege or a similar freestanding defence.

[Paul Farrelly]

Lord Lester’s Bill addresses qualified privilege. Does my hon. Friend agree that the law on qualified privilege is not now working to provide protection as it should and was intended to do, particularly of the work of non-governmental organisations? They often feel constrained, for example, in referring to United Nations reports or reports from overseas bodies that make allegations because they fear a libel suit in which they must prove all the allegations themselves rather than relying on the report of otherwise august bodies?

[Helen Jones]

My hon. Friend makes a valid point, and I hope that we can examine the issues in detail when the draft Bill is before us. I want to state clearly that by focusing on, for example, libel tourism and cases brought by wealthy individuals, we are sometimes in danger of forgetting that others must also have access to the law. We all agree that justice is not justice unless everyone has access to it.

That leads me to what is frequently described as the elephant in the room—costs and conditional fee agreements. The Constitutional Affairs Committee considered the matter in the previous Parliament, and received a large number of submissions from media organisations indicating that they are particularly affected by the use of CFAs. The Committee said that one of the main issues for defendants in libel cases is costs. When Lord Phillips of Worth Matravers gave evidence to that Committee, he highlighted the problem of costs in defamation actions, and expressed many people’s concern that fighting and winning a case could incur substantial costs that a defendant might not be able to recover. That is a valid point, but the Committee pointed out and we must bear it in mind that while it received many submissions from media organisations, it is much more difficult to receive submissions on behalf of claimants because they are not in organised groups that can give evidence to Select Committees.

We all know that the balance is delicate. The previous Government sought to deal with the costs of defamation actions before taking action on Lord Justice Jackson’s report by limiting the uplift in CFA cases to 10%, but that did not find favour with the Committee that scrutinised it in the House. I remember that very well because I was the Whip on the Committee, and it was the only one I have ever lost. Since then, some wise heads have suggested slightly higher limitations and other ways of capping costs.

[Paul Farrelly]

As other hon. Members have said, we made a distinction between limiting the uplift in defamation cases and limiting recoverability. Does my hon. Friend agree that in such cases the issue is reputation, and that damages should be secondary? It should be possible for claimants to share damages with solicitors in part to contribute to their costs. That would not be limited by capping recoverability from the other side.

--- Later in debate ---

[Mr Djanogly]

With the leave of the House, I thank the hon. Member for Newcastle-under-Lyme (Paul Farrelly) and my hon. Friend the Member for Maldon (Mr Whittingdale) for the interesting and helpful views that they have expressed during the debate. I recognise that the co-operative approach taken by the hon. Member for Warrington North (Helen Jones) is the best way to help the Bill to become law.

The wide range of issues that have been raised and the strongly held opinions that exist serve to illustrate the complexity of this debate. They also show the importance of finding solutions that are workable in practice and will achieve a fair balance that preserves and upholds the right to freedom of speech, while not preventing people from taking action to protect their reputation from defamatory material where appropriate. The views that hon. Members have put forward will be of considerable help to the Government in developing proposals for a draft Bill that will endeavour to strike the right balance on those important and sensitive matters.

As I said at the beginning of the debate, I am not in a position today to indicate exactly which provisions may be included in the draft Bill, or to set out conclusively the Government’s position on all the individual points raised. However, I assure hon. Members that I will take all the views that have been expressed fully into account, together with those views that have emerged from the recent debate in another place and the outcomes of the informal consultation with interested parties that will take place over the summer. A large number of points have been raised, and I would like to expand on some of them. I do not wish to restrict the consultation process in any way but, I repeat, today is about the Government encouraging debate, not about providing conclusions.

In that vein, let me congratulate my hon. Friend the Member for Maldon on his re-election as Chair of the Culture, Media and Sport Committee, not least because he can now see through his Committee’s valuable work on defamation. In a report published earlier this year, the Committee made recommendations on a range of issues relating to the law of libel. Those included proposals on a responsible journalism defence, libel tourism, the defences of justification and fair comment, the ability of corporations to bring libel actions, the early resolution of meaning and issues relating to the internet, and the multiple publication rule.

On CFAs, the Committee agreed that costs were too high and that reform was needed. As my hon. Friend said, the Committee also recommended that in defamation cases, CFA success fees should remain at 100% of base costs, but that only 10% should be recoverable from the defendant. The Committee’s approach therefore differed from both the previous Government’s proposal to impose a maximum success fee of 10%, and from Lord Justice Jackson’s recommendation to abolish the recoverability of the success fee and the after-the-event premium.

I am grateful to my hon. Friend and the members of his Committee for the valuable contribution to the debate made by that report. As the hon. Member for Stoke-on-Trent North (Joan Walley) noted, many of the issues raised were also included in a report entitled “Free speech is not for sale”, which was published by English PEN and Index on Censorship last autumn, in a report by the Ministry of Justice’s libel working group in March this year, and in Lord Lester’s private Member’s Bill. I would like to extend the Government’s thanks to all those involved in considering those important matters. I confirm that their views will be taken into account both in our review of the substantive law and in how we progress the issue of CFA reform.

[Paul Farrelly]

Will the Minister give way?

[Mr Djanogly]

I am moving on to CFA reform, if that is what the hon. Gentleman wishes to speak about.

[Paul Farrelly]

It is.

[Mr Djanogly]

Then the hon. Gentleman should listen—I knew that I would not get away by saying just that. He addressed the issue of cost and mentioned the statutory instrument produced by the previous Government at the end of the previous Parliament. I would like to explain our thinking on that issue. I confirm to him and to my hon. Friend the Member for Maldon that we are firmly committed to taking timely action to reduce the high costs under CFAs, while ensuring appropriate access to justice. As my hon. Friend spelled out in great detail, the high cost of CFAs is a concern not only in defamation proceedings, but more widely across other areas of civil litigation. I was pleased that he thought it important to look at the issue in the round, and I confirm that we will not delay the process as a consequence of that.

I am conscious that, as the hon. Member for Warrington North said, the attempt by the previous Government to limit CFA success fees in defamation cases through the Conditional Fee Agreements (Amendment) Order 2010 was not recommended to the House of Commons by the Committee. The Labour Government seemed to believe that by reducing the success fee mark up on CFAs and defamation cases, the problems that we are debating today would simply go away. It is true that those who were not rich would have been denied access to justice, but that would not have been the case for a wealthy individual or a corporation that wanted to suppress academic or scientific research, because they would not have wished to use CFAs in the first place. That blundering piecemeal approach is exactly what the Government intend not to pursue, and we will be looking at the issue in the round. I was pleased to hear the hon. Lady agree to that.

[Paul Farrelly]

The issue is complex. One person who was relieved that the statutory instrument did not succeed was Peter Wilmshurst, who is a consultant cardiologist at Shrewsbury and the University hospital of North Staffordshire. He is being sued by an American company, NMT Medical, and is being defended under a CFA. His problems are that there is one-way traffic. There are costs and delays and ultimately, he has no guarantee of getting his costs back if he is successful in countersuing for libel, or if NMT Medical loses the case. That is an example of the complexity of the issue, and the way that the libel laws urgently need to be reformed because of the costs and complexities involved, and the ability of companies to silence scientific debate.

[Mr Djanogly]

I disagree that the proposed order would have had the immediate impact that the hon. Gentleman suggests. However, we are moving on and the process is under way. That order sought only to reduce success fees in defamation-related proceedings. Although those proceedings are important, we know that CFAs have been a cause of major concern in other areas such as clinical negligence cases against the NHS, or in the context of the compensation culture debate.

The change that the order sought to achieve was inconsistent with more considered proposals in the field, which were known to the Government at that time. Lord Justice Jackson spent a year considering those proposals and wider issues, and made recommendations in January this year for the reform of CFAs across all areas of civil litigation. In addition, the report by the Culture, Media and Sport Committee entitled, “Press Standards, Privacy and Libel” was published under the chairmanship of my hon. Friend the Member for Maldon. The Government recognise the urgency and the complexity of these issues, but we strongly believe that it is important to consider the case for potential reform across all areas of civil litigation, rather than confine it to individual areas. Lord Young of Graffham is conducting a review into health and safety law and the compensation culture, and we await his report with interest. We are examining the options for reform and will announce the way forward as soon as possible.

My hon. Friend the Member for Maldon discussed funding litigation in a wider context, and I should add that Lord Justice Jackson is persuaded that solicitors and barristers should be permitted to use so-called contingency fees in litigation, subject to appropriate regulation and arrangements for costs recovery. Contingency fees are a type of no win, no fee agreement, under which the lawyer’s fee is payable only if the client wins, and is calculated as a percentage of the sum recovered. Importantly, the lawyer’s fee is a percentage of the damages, rather than being fee-based. That type of funding is widely available in other jurisdictions, but is not permitted in civil litigation in England and Wales. Lord Justice Jackson considers that contingency fees could increase access to justice. We shall also need to consider his recommendations on that issue.

My hon. Friend also expressed concern on libel tourism. There is a widespread perception that the English courts have become the forum of choice for those who want to sue for libel and that that is having a chilling effect on freedom of expression in other countries. For example, in the USA, a number of states have introduced legislation to prevent foreign libel judgments from being enforced there. I understand that legislation on the issue completed one of its stages in the US Senate this week. My hon. Friend mentioned that.

Although we need to review the implication of that possible law and other laws, such as those coming from the EU, as far as they relate to English jurisdiction, I am concerned that we should not be stampeded into basing our laws on an American world view of free speech. My hon. Friend the Member for New Forest East (Dr Lewis) expressed that point very well in his strong and valuable intervention.

There are mixed views about how far libel tourism is a real problem. A wide range of interesting views were expressed in the Second Reading debate on Lord Lester’s Bill in another place on 9 July, including by Lord Hoffmann, who in his speech and in a very interesting lecture earlier this year was extremely sceptical about the extent of any problem in that area. The problem with the Ehrenfeld case, for instance, is that she did not defend the action, so it is difficult to draw conclusions from it. Lord Hoffmann suggested that Dr Ehrenfeld could have relied on the Reynolds defence. I make no comment on that, but those issues will need to be reviewed.

Research that we conducted in the context of the Ministry of Justice libel working group’s consideration did not show any significant number of actual cases involving foreign litigants in the High Court in 2009. However, non-governmental organisations have said that a major problem arises from the threat of libel proceedings by wealthy foreigners and public figures, which is used to stifle investigative journalism, regardless of whether cases are in the end brought, so the number of cases alone may not accurately reflect the extent of the problem.

A number of possible approaches have been proposed to deal with any problems that exist. For example, the libel working group proposed procedural steps to tighten the rules and practice to head off inappropriate claims at the earliest possible stage in cases in which court permission is required to serve a defamation claim outside England and Wales. Lord Lester’s Bill has adopted a different approach, which focuses on whether the publication in England and Wales can reasonably be regarded as having caused substantial harm to reputation, having regard to the extent of publication elsewhere. We shall consider those proposals and other possible options carefully in reaching a decision on the way forward. In doing so, we will of course have to keep it in mind that there is relevant European legislation—in particular, the Brussels I regulation on jurisdictional matters—with which we shall need to ensure compliance.

The hon. Member for Newcastle-under-Lyme discussed the timing of our considerations of the Jackson review. I can advise him that we intend to revise the relevant cost-related recommendations in conjunction with our review of legal aid. That will be consulting in the autumn of this year, which he will appreciate is before the draft defamation Bill is to be tabled for consultation.

[Paul Farrelly]

May I come back on that, as the Minister might have expected? I think that I noticed the quizzical brow of my friend the Chairman of the Select Committee, the hon. Member for Maldon (Mr Whittingdale). The Minister’s statement on going ahead and more consultation in line with the reforms to legal aid has left me none the wiser as to when that process will come to an end.

[Mr Djanogly]

As I said, I cannot at this stage give a firm date for when a draft Bill will be published or for when the legal aid consultation will finally be settled. However, I can tell the hon. Gentleman that those matters are moving forward at speed. The legal aid consultation will be published in the autumn. I hope that he will take some comfort from the fact that we are not pushing the issue into the long grass.

[Paul Farrelly]

With respect, I think that comfort will be taken in certain quarters—I can hear the Bollinger corks popping as we speak.