Defamation Bill

Peter Bottomley Excerpts

Tuesday 16th April 2013 Commons Chamber

[Mrs Grant]

I fully understand those reasons, and if the hon. Gentleman will bear with me and allow me to progress on to an explanation of those amendments, I hope that all will be revealed to him.

The separate but related issues are whether there should be any restrictions on the rights of bodies corporate and other non-natural persons to bring an action in defamation and whether any non-natural person, which is performing a public function, should be prevented altogether from bringing a claim in relation to a statement concerning that function. In relation to the first issue, the amendment would mean that in order to bring a claim, a non-natural person would first have to obtain permission of the court. The court would be required to strike out any such application, unless the claimant could show that the publication of the statement complained of had caused, or was likely to cause, substantial financial loss. We believe that a permission stage for this purpose would create unnecessary duplication and additional costs for both parties.

If the claimant was required to show substantial financial loss in order to satisfy the permission requirement, it would in effect mean that the claimant would satisfy the serious harm test introduced by clause 1. We have asked the civil procedure rules committee to consider rule changes to support a new early resolution procedure under which either party could apply at the outset of proceedings for the court to decide certain key issues, including whether the serious harm test is satisfied. The addition of a permission stage would therefore add little or nothing, because any case where the existence of serious harm was disputed could have that issue resolved at a very early stage in any event.

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

I am grateful to the Minister for taking us through this matter. The problem comes when a body—not a person—sends a threatening letter to an ordinary member of the public. Were I to go to a pop concert and be abused by security staff, and then tell my friends not to go to anything organised by those people, and if they then issued and served a writ, what chance would I have, with no money? Do I go straight to court and say, “They’ve shown no loss. Cut it out. They are not a person. They’ve got no feelings. They should not be allowed to do it.”?

[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.

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[Mrs Grant]

I am grateful to my hon. and learned Friend, who makes a very good point indeed.

[Sir Peter Bottomley]

Just two names: Peter Wilmshurst and the hundreds of thousands of pounds by a corrupt organisation, a company that had not allowed clinical research to be published properly; and Dr Simon Singh and the half a million pounds of costs over £5,000 of damages, and the court could not find a way of dismissing the case. That is the problem: such cases should not be allowed to start.

[Mrs Grant]

As I intimated earlier, fixing the problem of fairness and creating the right balance between the claimant and defendant is not just about an early strike-out procedure. It is about a package of proposals that create fairness, are proportionate and allow for freedom of expression while protecting the reputations of individuals.

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[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.

[Sir Peter Bottomley]

rose—

[Sadiq Khan]

I shall give way to the hon. Gentleman in a moment.

I was talking about the huge amount of support for Lords amendment 2. It should also be supported by the Liberal Democrats, whose manifesto stated that they sought defamation reform that would require

“corporations to show damage and prove malice or recklessness”.

That is a far higher threshold than that in Lords amendment 2. If the Liberal Democrats stick to their manifesto and their principles and vote with us this evening, we can defeat this attempt to stifle free speech. I urge them and others to vote with us to support the retention of this crucial clause in the Bill.

I like to keep my promises, so I shall now give way to the hon. Member for Worthing West (Sir Peter Bottomley).

[Sir Peter Bottomley]

The right hon. Gentleman might get as far as I did by doing that.

Atos does disability checks for the Government and a number of disability claimants had a forum where they made their comments about that. Atos, I understand, sent a legal letter that closed it down because the threat was sufficient. The Government could not have done that and Atos should not, so the public function issue matters. There are plenty of other ways in which large corporations can defend their reputation, but using money and legal threats is not one of them.

[Sadiq Khan]

The hon. Gentleman might have been in the House in 1993, when Lord Keith made his judgment, but the numbers of private companies undertaking public functions in ’93 were far fewer than they are in 2013. The hon. Gentleman knows that I have huge respect for him, but if his party has its way, with the support of the Liberal Democrats, even more public services will be tendered and will be run by private companies.

Large elements of the Bill show how Parliament should legislate. Political consensus on the overarching need to reform followed by detailed, expert debate on the substance in both Houses, all informed by a dedicated set of campaigners and non-governmental organisations, has helped to turn the original substandard Bill into a better set of proposals. I hope that today the House will agree with us one more time on the importance of retaining the key changes made to the Bill in the Lords. Do you know what? Defamation Bills do not come around very often—this is only the third since 1853. We must grasp the opportunity and deliver the modern, updated defamation laws warranted by our tradition of open and free speech.

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[Sir Edward Garnier]

That is not only fundamental; it is highly uncontroversial. Human beings can get damages for hurt to their feelings; companies cannot. One cannot libel a company by accusing it, for example, of adultery, whereas one can so libel an individual. There are plenty of obvious and not very surprising differences between the law relating to individuals and the law relating to companies, but there are examples of things which affect companies’ trading reputations, which should be susceptible to protection.

We should also bear it in mind that there are different types of company. There are not-for-profit companies which are not in the business of making money and which, if they were libelled, would not lose money. It may well be said in response to me that the amendment deals with that. They would get permission from the court to bring that action, but that just creates another hurdle, as the Under-Secretary of State for Justice, my hon. Friend the Member for Maidstone and The Weald (Mrs Grant), made clear.

[Sir Peter Bottomley]

I would be grateful if my hon. and learned Friend could advise briefly on two points. First, at which stage should the courts have said, “We are not going to go further with the claim against Dr Simon Singh or against Dr Peter Wilmshurst”? Secondly, with reference to loss, in 1950 two doctors said that tobacco is very bad for people’s health and asbestos is very bad for people’s lungs. That was not the general view. It was an insight, and the companies involved in selling tobacco and selling asbestos could have sued for loss. That should have been struck out as well. There should be no libel for such cases. How would my hon. and learned Friend stop that kind of thing without the proposed new clause?

[Sir Edward Garnier]

I shall not unwind the case of Singh or the Wilmshurst case; they have been before the courts and have been dealt with. As it happens, the case of Simon Singh became controversial because it was an argument about whether the words complained of constituted allegations of fact or whether they were capable of constituting comment. That is the point on which it went to the Court of Appeal.

There was an action in South Africa brought by a tobacco company which sued and recovered damages on the allegation that its products promoted cancer. Things change. That is the advantage of having an organic system of law which enables the courts to deal with evidence and reach conclusions about whether a company or anyone else has been attacked inappropriately.

As I was saying to the hon. Member for Cambridge (Dr Huppert), it is not all that hard to think of statements which seriously injure the general commercial reputation of trading and charitable organisations. An arms company—

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[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.

[Dr Huppert]

It is a pleasure to follow the hon. Member for Worthing West (Sir Peter Bottomley), with whom I have had many promising discussions on the issue. I am delighted that the Bill is back in the Commons. There was a period when, due to the actions of the Labour peer Lord Puttnam, there was a risk. I am glad that that risk did not eventualise and that it turned out not to be a problem.

This Bill will make a significant change to the costs of libel and to free speech and it will reduce libel tourism. I am particularly pleased about clause 6, which provides specific protection for peer-reviewed academic and scientific publications. That is something that I value greatly and I am delighted that we will be able to make those protections, because we have heard of too many cases of learned journals being silenced.

The issue remains, however, of corporations and non-natural persons. As I argued earlier, they are different. They do not have feelings. They are categorically separate and there should be different rules for what happens when they wish to bring libel actions. Significantly, we have heard that they can abuse power, as in the cases of Peter Wilmshurst and Simon Singh. I was going to talk more about them, but a number of speeches have covered them.

There is, largely, cross-party agreement, with the notable exception of the hon. and learned Member for Harborough (Sir Edward Garnier).