Defamation Bill

Peter Bottomley Excerpts

Tuesday 12th June 2012 Commons Chamber

[The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)]

I beg to move, That the Bill be now read a Second time.

I am confident that everybody in this Chamber agrees that freedom of expression is the cornerstone of our democracy. In an open society, people should be at liberty to debate a subject without fear or favour, whether the matter be political, scientific, academic or anything else. That is how power is held to account, abuses of authority are uncovered and truth is advanced. But freedom of speech does not mean that people should be able to ride roughshod over the reputations of others without regard to the facts. Life and career can be destroyed by false allegations that go unanswered. The issue for our defamation laws is ultimately one of striking the right balance between protection of freedom of expression on the one hand and protection of reputation on the other.

I share the mounting concern of recent years that our defamation laws are becoming out of date, costly and over-complicated, and that they are at risk of damaging freedom of speech without affording proper protection. No one can be satisfied with a situation where the threat of lengthy and costly proceedings has sometimes been used to frustrate robust scientific and academic debate, to impede responsible investigative journalism and to undermine the good work undertaken by many non-governmental organisations. The practice of issuing gagging writs has been resorted to by many people over the years. I once had the privilege of receiving one myself from Mr Robert Maxwell, but we must make sure that the practice is not encouraged to spread further. Nor can it be a matter of pride when powerful interests overseas with tenuous connection to this country use the threat of British libel laws to suppress domestic criticism in cases of so-called libel tourism.

Turning to what is the most innovative and difficult part of the Bill, I am also very concerned that our current libel regime is not well suited to dealing with the internet and modern technology. Legitimate criticism sometimes goes unheard because the liability of website operators, as providers of the platform on which vast amounts of information is published by users, puts them in the impossible position of having to decide when to defend or censor information. Meanwhile, individuals can be the subject of scurrilous rumour and allegation on the web with little meaningful remedy against the person responsible. We need to refocus and modernise the system so that it offers effective protection, whether offline or online, both for freedom of speech and the reputation of those who have been defamed.

Those are the main reasons for the introduction of the Defamation Bill. It fulfils the commitment in the coalition agreement to review the law of libel while protecting legitimate free speech. It also, of course, draws heavily on the draft Bill published last year. I do not want to tempt fate, but I must say that I think that thus far producing a draft Bill and consulting has proved to be a very good way of proceeding on what could otherwise have been an extremely contentious issue.

The draft Bill benefited from detailed, and very helpful, scrutiny by a lot of interested people. We were particularly helped by the Joint Committee, and I am grateful to all who contributed to it, especially my old friend and colleague Lord Mawhinney and his fellow Lords for their extremely helpful contribution, which we have reflected in the Bill.

[Sir Peter Bottomley (Worthing West) (Con)]

On the subject of that Committee, may I say that it was my experience—which I think was shared by others who served on it—that the attitude of the Minister, Lord McNally, especially in answering questions and being very open about what was in his mind and in the mind of the Department, was very useful? Such openness brings results.

[Mr Clarke]

I am grateful to my hon. Friend for those comments, because it is one of the ironies of this Bill starting in the Commons that the member of my ministerial team who has devoted the most time to producing it is unable to introduce it. My ministerial colleague, my hon. Friend the Member for Huntingdon (Mr Djanogly), will wind up this debate, and both he and I would acknowledge that our noble and right hon. Friend Lord McNally played a leading part in the whole consultation and scrutiny process.

Before I discuss the detail of the Bill, let me say that parliamentary debate always elicits a broad spectrum of opinion, and defamation reform is no exception. At one end of the range of views are still some who would like this country to move towards the United States’ model, with free expression always trumping other considerations and with little or no legal redress for those who have been defamed. I find that idea unattractive and think that the current process of American electioneering shows the dangers. The well-financed production of untrue or dubious personal allegations can be taken to great length if there is no adequate protection. At the other end of the range are a few people who think, particularly in light of recent media excesses, that we should teach newspapers a valuable lesson by encouraging anyone whose feelings have been hurt to sue them. I am not sorry to say that the Bill will disappoint those with either extreme of opinion, which I hope will be echoed very little by hon. Members on any Benches in this House.

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[Sadiq Khan (Tooting) (Lab)]

We welcome a Bill that seeks to modernise our outdated libel laws. The Bill is very much built on the groundwork done under the previous Government. Indeed, all three main political parties included in their manifestos a commitment to reform our defamation laws. I commend the Justice Secretary for his speech and for taking so many interventions, which means that my contribution will be a lot shorter than it otherwise would have been. The House is in a position of near unanimity in supporting the principle behind the Bill, and we will support the motion to give it a Second Reading.

I will deal specifically with the clauses in the Bill shortly. First, I would like to put on record the thanks owed to a number of key people and organisations who helped to get us where we are today, and whose further help we will need over the coming period to improve the Bill further. I am sure that the whole House will join me in expressing our appreciation to Dr Simon Singh, whose experiences of struggling with unbalanced and outdated defamation law stimulated a coming together of many scientists, academics, science campaigns, and national academies and institutes. We need to ensure that the threat of libel proceedings is not used to frustrate robust scientific or academic debate or to impede responsible investigative journalism.

The Libel Reform Campaign, in which Simon played a key role, has also driven forward the work on defamation reform. Having met people involved in the campaign on a number of occasions, I know just how determined they are to achieve the task they have set themselves. All the constituent members of the campaign—Sense About Science, English PEN and Index on Censorship—deserve praise for their hard work and determination in keeping the pressure on us here in Parliament to sort out our antiquated libel laws. Their petition of 2010 gathered more than 50,000 signatures of support—testament to the success of their campaigning and the level of support for what otherwise might be seen as a minority issue.

I pay tribute to my right hon. Friend the Member for Blackburn (Mr Straw) for the work that he did as Justice Secretary in the previous Labour Government. It was he who established the working party that started on the task of updating our libel laws. Indeed, that group led the groundwork for this Bill. His approach of working in a collegiate and non-partisan manner was instrumental in all three main parties committing themselves to completing the task started under his watch. Without him, the Bill would not be here today.

[Sir Peter Bottomley]

The right hon. Gentleman is right to direct the House’s attention to Simon Singh and others. If he will allow me, I would like to commend the evidence given to the Joint Committee by the editors of Nature and the British Medical Journal. Will he also allow me to add the name of Dr Peter Wilmshurst, who faced an unending campaign from a foreign manufacturer of bogus products? We should also remember that the Trafigura case was not just about libel. A lot of others in the media ought to learn to pile in behind people. If they think that their claims are right, they should help to expose the people who are taking these kinds of actions, who would then be laughed out of them.

[Sadiq Khan]

I associate myself completely with the hon. Gentleman’s comments. I will come to Dr Wilmshurst, the cardio surgeon he mentioned, shortly.

I pay tribute to the work done by the Joint Committee that considered the draft Bill under the chairmanship of Lord Mawhinney. I will come later to some of the excellent conclusions reached by the Committee, some of which have not been adequately addressed in the Bill. I also recognise the hard work of Lord Lester in his original private Member’s Bill.

Finally, I pay tribute to this Government for running with libel reform despite a change of Administration. New Administrations do not often stick with plans that are not wholly their own; this one has. This is not a partisan issue but a problem that needs rectifying. I commend the way in which the Government have gone about doing so and the pre-legislative scrutiny that has been carried out. I commend the Justice Secretary for taking on the baton of reform and ensuring that time was made available in this Session for a Bill to be brought before us.

Time in this House is precious, and using that time for legislation should be done only when there is a clear and demonstrable problem that needs new laws or a change in existing laws, especially when the subject is uncontroversial. Our libel laws deserve this attention, and it is right that we seek to update them. Libel laws were first established in statute through the Libel Act 1843. Since then, only limited changes have been made through the Defamation Act 1952 and the Defamation Act 1996. The law on defamation has primarily been developed by judges via case law.

As with many elements of our legal system, legislating on defamation is about calibration. We must calibrate correctly the balance between freedom of expression and the protection of reputation. Freedom of expression is one of the essential foundations of a free and open democratic society: citizens must be free to express their opinions and views on issues, people and organisations. However, there are limits to the freedom to express opinions. Freedom of expression does not trump everything else. Indeed, in the Human Rights Act 1998, it is a qualified right. It must be balanced against the impact that the expression may have on the reputation of those affected. That is obvious.

The besmirching of reputations without supporting evidence, perhaps for vindictive reasons, is something that society should rightly guard against. That is why we have defamation laws. They are a deterrent against the unwarranted or vindictive expression of opinion, and provide recourse for those who have suffered damage to their reputation. Exactly where the line is drawn between what causes injury to reputation and what is simply the expression of free opinion is not clearly defined, nor could it be. There will always be the need for discretion at the interface of those two opposing tenets.

That said, there has been growing concern in recent years that our libel laws have not kept pace with the changing nature of society. Some have expressed concern that the balance has become too tilted towards protecting reputations, at the expense of free speech, leading to a chilling effect whereby the legitimate right to speak freely and openly is inhibited or discouraged by the threat of legal sanction. Others are worried that England and Wales have become a destination for libel tourists because our perceived claimant-friendly environment attracts litigants who are unwilling or unable to pursue cases in Europe or the USA. Technology, through the expansion of the internet, has transformed the way in which comment and opinion are disseminated in a way that the world has never before witnessed.

Our overriding objective must be to ensure that people from all backgrounds have access to the legal system, should they be genuinely defamed. The chilling effect is underpinned by the system appearing to be out of reach for many people. We therefore risk a dangerous skewing of the balance away from freedom of expression and towards those seeking to protect reputations. The Defamation Bill should leave us with laws that are clearer and more proportionate.

I will now discuss specific provisions of this relatively short Bill, which contains only 16 clauses. Clause 1 will introduce the hurdle of “serious harm” and states that a statement does not defame

“unless its publication has caused or is likely to cause”

serious reputational harm. That is sensible. That hurdle is intended to prevent mundane actions that can cost considerable amounts of time and money to head off. We want to discourage trivial claims.

However, how does “serious harm” differ qualitatively from harm? On that, the Bill is not clear. My right hon. Friend the Member for Tottenham (Mr Lammy) has illustrated some of the problems. Case law refers to a “threshold of seriousness” in determining what is defamatory. To provide genuine protection against trivial cases, we need greater clarity. Otherwise, vexatious claims will not be tackled. The Law Society, of which I am still a member, is concerned that this higher hurdle is likely to inhibit many people in making valid attempts to protect their reputation. That is one issue that I hope the Committee will clarify when the Bill moves upstairs.

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[Sir Peter Bottomley]

On clause 11, if the judge is making the decision alone, and if the case is determined by meaning and there is a range of meaning, does the right hon. Gentleman agree that it is far better that the judge should say to the parties at an early stage, even before the case gets to court, that where the person who has published has used a word with a hard meaning and a soft meaning—for example, in the case of the Hutton report, “sexed up”—they have an opportunity to say, “I actually meant the soft meaning, not the hard meaning,” and thereby have the whole case disposed of, rather than having it fought out, even in front of a judge alone?

[Sadiq Khan]

For the second time the hon. Gentleman has made an intervention about a point that I am coming to. I shall come to the procedural pre-action work that I think is missing from the Bill and which the Committee should look into.

Let me move on to concerns about access to justice. The Justice Secretary will not be surprised to hear me say that under this Government we have seen access to justice seriously curtailed. The recently passed Legal Aid, Sentencing and Punishment of Offenders Act 2012 will have an impact on defamation cases. Claimants in defamation actions will no longer be able to insure themselves against costs, and even if they are successful, they may have to pay some or all of their damages in lawyers’ fees. Although some other claimants—for example, in personal injury cases—will be protected against costs, no such protection is in place in libel cases. It is not clear whether high profile cases brought by individual members of the public—such as that brought by the McCann family against tabloid newspapers—would now happen. We would like to see similar protection for such cases as that given to personal injury cases, rather than simply limiting defamation cases to the most wealthy.

The Justice Secretary will be aware of the campaign co-ordinated by Hacked Off and the Libel Reform Campaign, which included a letter that the McCanns recently sent to the Prime Minister expressing their concern about access to justice. I want to quote part of that letter, which is very powerful, and which I hope will be considered by the Committee during the passage of the Bill.

“A successful libel defendant obviously does not get any damages so these reforms will prevent all but the rich from being able to defend their right to free speech against wealthy libel clients…In future, ordinary defendants, like Peter Wilmshurst, Hardeep Singh and Heather Brooke would also be unable to get support for legal action against them often by large institutions with deep pockets trying to silence them. That will be bad news for science and medicine, for free religious debate and for transparency in the public interest...And victims of the tabloid press like Christopher Jeffries, Bob and Sally Dowler, Kate and Gerry McCann, and Robert Murat will not be able to take legal action against the tabloids for hacking into their phones, for false accusations and for gross misrepresentation”.

On that subject, my colleague Lord Prescott made it clear during the progress of the Legal Aid, Sentencing and Punishment of Offenders Bill in the other place that his successful defamation claims against newspapers would not have been possible if the Government’s proposals on civil litigation had come into force. In response to Lord Prescott’s remarks, the Minister, Lord McNally, assured the other place:

“I cannot imagine that the kind of issues that the noble Lord, Lord Prescott, has raised tonight will not be dealt with fully in that Defamation Bill.”—[Official Report, House of Lords, 27 March 2012; Vol. 736, c. 1332.]

Yet I do not see those issues being dealt with anywhere in the Bill. If the Government do not bring forward proposals to address this deficiency in Committee, we will have to do so.

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[Sir Peter Bottomley]

On the case of Dr Singh and the chiropractors’ action against him, the House would like to know, if not now then in Committee or on Report, that the changes which are proposed, both in the Bill and in what my hon. Friend the Minister is describing now, would have chilled the chiropractors and they would not have tried to take the bad action that they took, based on bad science and on money and bullying.

[Mr Djanogly]

We intend that issue to be addressed both in terms of the substantive law and in terms of the procedure.

[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.

[Sir Peter Bottomley]

Following up the very important Trafigura issue, if either a solicitor or a barrister ever purports to a client or to someone on the other side that they cannot talk to their Member of Parliament about a matter of public interest, whether international, as in the case of Trafigura, or in a number of medical cases where hospitals or trusts appear to try to silence a consultant, a clinician or a nurse on the issue of patient safety, I hope the Minister will join me in saying that the standards board for the barristers or the solicitors should say, “That person is unprofessional and will be subject to discipline.”

[Mr Djanogly]

If someone has a problem with the advice that they receive from their professional, they can of course go to the complaints organisations.

We indicated in the consultation document that the Civil Procedure Rule Committee would be asked to consider appropriate procedural changes through secondary legislation to support the new approach. A majority of respondents on this issue were in favour of introducing a new court procedure to resolve key preliminary issues at an early stage. Many of these argued that procedural reform aimed at speeding up defamation proceedings and reducing costs is one of the most important elements of any proposed reform of the law. However, a small number of legal professionals argued that it is unnecessary and could add further complexity.

A range of comments were provided on the issues that would be suitable for determination under the procedure and on other points of detail. I can confirm to the House that we are considering these in working up detailed proposals for the Civil Procedure Rules Committee to consider.