Defamation Bill

Debate between Paul Farrelly and Robert Flello

Tuesday 12th June 2012 Commons Chamber

[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.

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[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.

Business of the House (Thursday)

Debate between Paul Farrelly and Robert Flello

Wednesday 8th December 2010 Commons Chamber

[Paul Farrelly]

I was the first in my family ever to go to university. It is certainly a challenge for the Government to ensure that students who do not come from a background where higher education is the norm are not put off. I fear that that will be the starting point if we are allowed to debate the matter for only five hours tomorrow.

[Robert Flello]

Will my hon. Friend give way?

[Paul Farrelly]

I will certainly give way to my hon. Friend and next-door neighbour.

[Robert Flello]

I am grateful to my hon. Friend and next-door neighbour. My constituency covers a third of Stoke-on-Trent, a very challenged area, where one of the best ways forward for young people is to go either to the fine university of Keele or to the fine university of Stafford. How will they be able to do so if we do not have the time tomorrow to debate the full intricacies of the issues, so that they can be reassured?

[Paul Farrelly]

I thank my hon. Friend for raising the situation in north Staffordshire, where we live, which is a situation that will be replicated across the country. The danger is that we will not have the time to debate, area by area, the risk to the entirety of an institution that will follow—or may follow—the teaching cuts and the fees combined.

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[Paul Farrelly]

I do not know where the hon. Gentleman has been for the past few days, but we have just had an Opposition day debate on that very subject.

If we had the time, one of the things that we should look at is the experience in the US. Some 34% of young white people in the United States earn an honours degree, compared with only 19% of African-Americans and 10% of Hispanics. Again, we will not have time to look at the international experience. In Canada, when fees for medical schools went up from roughly the same level as ours are now—the equivalent of £3,000 in their currency—to $15,000, which is much the same as £9,000, participation among children from lower income backgrounds dropped by a third. We simply will not have the time—[Hon. Members: “Hooray!”] We will not have the time to rehearse all that evidence.

[Robert Flello]

My hon. Friend is making some extremely important points about having the time—[Laughter.] He is talking about having the time tomorrow to debate these important issues, yet all that we can hear from across the Chamber is hysterics. Is it really that funny to prevent young people from going to university because of these fee increases, and not having time to discuss it?

[Paul Farrelly]

Most Members of the House are very well behaved and listen politely when other Members are on their feet. Mr Speaker, I will not try your patience by going through every fee level, which we will not have time to debate, in Australia, New Zealand, Canada and the United States, institution by institution and region by region. The fact is, however, that if the motion goes through tomorrow, we will have the highest levels of fees across the board outside the United States. The implication of that—

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[Paul Farrelly]

My right hon. Friend’s point is well made. Traditional industrial areas, such as his and mine, are in need of all those schemes to encourage people and give them a fair chance to go to university. We need time to discuss that.

We need time to discuss other matters of which young people may not be fully aware. At the moment, they are just aware that it will cost them more to go to university, but perhaps they are not aware that some universities might not exist in future because they are threatened by teaching cuts. Without being parochial, I should like to discuss my university, Keele, where there will be an estimated 46% cut in the teaching grant, from £29 million to £13.5 million.

[Robert Flello]

I am most grateful to my hon. Friend for his generosity with his time—

[Robert Flello]

My apologies. It is good to see the hon. Gentleman in his place; he has been a little bit on and off over the past few hours. [Interruption.] I hope he is saving himself for my speech later as well.

My point, of course, relates to the motion before us this evening. Would my hon. Friend the Member for Newcastle-under-Lyme (Paul Farrelly) care to comment on the fact that there are a huge number of organisations on which the House relies for information, support and knowledge that wish their views to be represented through their Members of Parliament, but that under the motion we will not have time to discuss properly the issues that they have raised with us?

[Paul Farrelly]

My hon. Friend is correct. There are wider issues involved in the contribution that higher education makes to local economies. For instance, in our area, Staffordshire university may face cuts across the board that will damage the great job it does in regeneration and teaching new ceramics skills and design.