Prisons (Property) Bill

Peter Bottomley Excerpts

Friday 14th September 2012 Commons Chamber

[Stuart Andrew]

No, my hon. Friend is quite right. We would not be giving guns back; they would, of course, be given to the police to deal with. However, there will be anomalies along the way, and I am sure that many hon. Members will help me to ensure that the Bill is as tight as possible on such issues.

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

As my hon. Friend has made such a generous offer, let me congratulate him on introducing the Bill and ask whether during its progress, perhaps in Committee, he might consider the question of illegal drugs. The last time I looked, which was some time back, prisoners were being found with illegal drugs more than 20,000 times a year. Are those recorded as crimes, or does it depend on whether the drugs are discovered by the Prison Service or the police? What happens afterwards? Presumably drugs will not be given back if they have not been consumed already.

[Stuart Andrew]

This debate is already demonstrating that there will be a lot to talk about in Committee. Indeed, I hope that my hon. Friend will consider joining me on that Committee. He is absolutely right: items that are illegal would never be returned. They would be sent to the police to deal with.

To return to the point I was making, it is frankly astonishing that items seized by the governor are held in safe keeping simply to enable prisoners to claim them back on their release. That is not only a perverse part of the law; it is frankly wrong. It is also astonishing to discover that the system is having a huge impact on the public purse in what are very difficult times.

Defamation Bill

Peter Bottomley Excerpts

Wednesday 12th September 2012 Commons Chamber

[Jeremy Wright]

The right hon. Gentleman slightly over-dramatises the position; I am not saying that at all. I am saying that particular circumstances apply to the clause dealing with website operators. New clause 1 is designed to assist us in striking the balance that I have mentioned several times. We hope that the effect of the Bill as a whole will be to encourage all those inclined towards publishing statements that are potentially defamatory to think carefully before they do so. However, we want to strike the right balance between that and ensuring that people are not so afraid of having actions brought against them that they do not allow free speech to operate, either on the internet or elsewhere. I have accepted many times that this is a delicate balance to strike, but we believe that we have done our best to strike it.

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

What would have happened if 22 years ago someone had had a website and they had published their suspicion that the police had had statements altered in regard to a great tragedy such as Hillsborough? Let us suppose that the police had then taken out a defamation action. First, would they have been disqualified from doing so as a public body? Secondly, if an individual police officer took out that action, what defence would have been available to the person who may have been present at the tragedy, and who may have had inside knowledge of what the police statements had contained and how they came out in public?

[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—

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[Robert Flello]

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

I have already welcomed both new Ministers to their places while in a Committee, but I shall repeat the exercise because it is welcome to see them both on the Front Bench today. The spirit of consensus that was started on Second Reading ran into some thick treacle in the Public Bill Committee, but perhaps a fresh approach with a fresh set of Ministers will allow us to return to those heady days.

I make no apology for bringing the new clause to the attention of the House. It was tabled by my hon. Friend the Member for Hammersmith (Mr Slaughter) in Committee only for us to run out of time for a proper debate and a proper Government response. It is important that right hon. and hon. Members on both sides of the Chamber understand the situation and the context in which we propose the new clause.

If I use the term “CFAs”, I hope everyone knows that I am referring to conditional fee agreements. I will also refer to after-the-event insurance, and I might slip into calling them ATEs. Some extremely knowledgeable Members will have no problem understanding CFAs, ATEs and various other acronyms, but I hope the House in general will be clear what I mean if I use them.

Conditional fee agreements, also known as no win, no fee agreements, were first made possible in personal injury cases by secondary legislation under the Courts and Legal Services Act 1990 and were introduced in 1995. They were meant to provide greater access to justice for those who did not qualify for legal aid but were unable to afford legal representation. Defamation cases were never covered by legal aid.

From 1995 until April 2000, there was limited take-up of CFAs, as some of the costs were still borne by the claimant. The Access to Justice Act 1999, which came into effect in 2000, introduced significant changes and reduced the scope of legal aid, particularly for personal injury, on the basis that those cases could now rely on CFAs. At the same time, the 1999 Act made CFAs more usable by allowing the recoverability of the success fee and the after-the-event insurance premium. It therefore became possible for people to take legal action without the fear of losing everything because of significant cost implications, although it was still necessary, of course, to find a lawyer willing to take the case because, if they lost, the lawyer would lose his or her fee. That is an important point at which to pause for consideration, as lawyers would therefore prefer to take on only those cases that they believed they could win.

Just so we are clear, damages awarded to claimants in defamation cases are typically between £10,000 and £20,000, whereas the costs of such litigation frequently run to many hundreds of thousands of pounds, but the Government now seem to think that the fees lawyers charge will come down if fewer people can get access to justice. Two situations could arise—[Interruption.] Before I explain them, let me welcome the Secretary of State, who has just taken his place on the Treasury Bench.

Let us consider a situation in which a person feels that they have been defamed, perhaps by the media, as is too often the case and as happened in the horrendous and tragic case we heard about earlier. The claimant would currently be able to agree a no win, no fee agreement, and if the person won, he or she would keep their damages and the lawyer would be entitled to get a success fee of between 10% and 100% depending on the conduct of the case. The insurance premium could also be recovered. The cumulative effect of the cases that lawyers win helps them to offset the costs of the cases that they lose. If the claimant loses, the insurers will pay the other side’s costs.

Let me give some examples of ordinary people who have been libelled or intruded on by the media and would otherwise not have been able to afford legal representation. Robert Murat was grossly defamed after the disappearance of Madeleine McCann and won significant damages from almost a dozen news outlets. He was supported by the use of a CFA. We all know that Christopher Jefferies was “monstered” by the press after he was arrested for questioning by the police in the Joanna Yeates murder trial, despite the fact that Jefferies was released after two days without charge. It is difficult to see how he could have received fair redress without the use of a CFA.

[Sir Peter Bottomley]

Was the case of Mr Jefferies, which the hon. Gentleman rightly raises, pursued under defamation law or some other provision?

[Robert Flello]

I refer the hon. Gentleman to my new clause; I think he will then get the point.

Sylvia Henry was a social worker who was wrongly accused of being negligent in the Baby P case. As a consequence, she was horrendously defamed and banned from carrying out child protection work. The CFA helped her to challenge the press’s accusations. A newspaper we have heard mentioned many times today, The Sun, apologised after reporting that Mr Abdul Patel was an evil terrorist who had been jailed for his part in a transatlantic terror plot. Mr Patel has never, as the paper acknowledged, had any involvement with terrorism acts. He was helped by a CFA. Finally, Elaine Chase was a paediatric community nurse who was falsely accused by The Sun, on the front page and inside that paper, of hastening the deaths of 18 terminally ill children by over-administering morphine. She fought and won her case with the support of a CFA.

We will now have a double whammy under this Bill and the Legal Aid, Sentencing and Punishment of Offenders Act 2012, whereby a claimant will, quite rightly, have to pass a higher test to bring the claim but will also need the financial resources to go to law. Is that fair? How many people who have been defamed will have the case to go to court but not the means, and will therefore have no way of clearing their name?

Let us consider the other side of the argument, which is the position of the defendant. As the relevant part of the LASPO Act is not yet in force, a defendant also has the ability to use no win, no fee conditional fee agreements and after-the-event insurance. If the defendant is successful, the lawyer gets paid and receives a success fee from the claimant. Of course, the defendant does not receive damages. Alternatively, if the defendant loses the lawyer does not get paid but the ATE policy pays the claimant’s costs.

Let me give a couple of examples to illustrate my point. Members of the Public Bill Committee will be familiar with the case of Peter Wilmshurst, but it is important that it is understood by the wider House. Peter Wilmshurst was a scientist who was sued by the American pharmaceutical firm NMT Medical after he criticised its research at a US cardiology conference in 2007 and his comments were quoted by a journalist. Henrik Thomsen, a Danish radiologist, was sued by GE Healthcare for comments he made about a drug, again at a conference. If they had been unable to rely on CFAs and ATEs, they probably would not have been able to defend themselves at all.

As a result of the LASPO Act, defendants will now be faced with three options. First, they can issue a grovelling apology, even if they were absolutely right to say what they did, and hope that that is sufficient to avoid being sued. Secondly, they can try to defend themselves in court without legal assistance or any legal advice and face losing; they will also probably face highly paid, highly skilled lawyers on the side of a major corporation. Thirdly, they can try to scrape together the money to pay a lawyer while bearing in mind that if they lose, the cost might wipe out all their resources. Do we really want eminent doctors and scientists running the risk of losing everything, or preferring not to take the risk and retracting what they said, even though it might be correct and that scientific and medical research might save lives? Of course, the Minister will say that the barrier to pursuing a case will be higher once this Bill is enacted and that that will stop vexatious and intimidatory claims, but that will not happen without an early strike-out route.

My new clause also covers privacy cases, and there can be better illustration of the harm that the LASPO Act will cause than the terrible case involving Milly Dowler. Sally Dowler has gone on record, saying:

“At the outset we made clear that if we had to pay the lawyers, we could not afford to bring a claim; or if we had any risk of having to pay the other side’s costs, we couldn’t take the chance. If the proposed changes had been in place at that time we would not have made a claim. Simple as that, the News of the World would have won, because we could not afford to take them on.”

That is why it is so important to exempt defamation and other matters covered by my new clause from the LASPO Act.

We are not alone. Even Lord Justice Jackson talked about moderated success fees, but the Government have not included his proposals to mitigate the impact of the LASPO Act. The Bill rebalances defamation law in favour of defendants. If we do not remove cases from the LASPO Act, we will condemn wrongly accused people to not receiving justice. How can that be right?

We did not have sufficient time to explore the issue fully in Committee, so let me take the opportunity to put on record what was said in a letter to the Prime Minister on 26 March, in advance of the final stages of the LASPO Bill. The letter was signed by Christopher Jefferies, Gerry and Kate McCann, Peter Wilmshurst, Robert Murat, Hardeep Singh, Nigel Short and Zoe Margolis.

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I am glad that this unfinished business is on the agenda, but I do not think that we can deal with it appropriately here and now simply by accepting the new clause—well intentioned and perfectly understandable though it is. I look forward to the wider debate that we will have on other matters and hope that, before the Bill becomes law, we will have arrived at a position in which the rights of “the ordinary person” or “the ordinary citizen” are defended and they are not at a disadvantage when defending their reputation against people who are much more powerful and influential than they are.

[Sir Peter Bottomley]

On 24 May, in a written ministerial statement, my hon. Friend the Member for Huntingdon (Mr Djanogly) spelled out the exceptions to implementation of sections 44 and 46 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, stating that there would be a delay in implementation for cases involving mesothelioma and insolvency. He referred to the Civil Justice Council, which was to carry out a review. I suspect that I would not come to a firm view on the proposal currently before the House without hearing from that review, so that is an argument for delaying.

It is clear—I am not a lawyer or a parliamentary draftsman—that it is open to the Government to make by statutory instrument exceptions or changes. The Bill might not be the right place to deal with issues that go beyond defamation. Our debate is in order; otherwise the decision to select the new clause would not have been made by the Speaker or his advisers, although I was a bit surprised by it.

We must be clear in our minds whether aid should be qualified by cost shifting or by conditional fee agreements for both claimants and defendants. To do it only one way would be a bit odd. To do it both ways would be a bit like the old civil disputes in families—costs might rocket for issues that should be determined in different ways.

I ought to declare that I have been involved in a number of defamation actions. I have been defamed more often that I have taken action. If anyone hacked my phone, the only defamatory stuff they would hear would be my wife telling me I ought to be at home, rather than in the House of Commons Chamber.

In the early 1980s, a newspaper said that I was going to stand for one party, but switch to another one later, which was clearly defamatory. When I asked the journalist involved what had happened, he said that the story had been improved by the sub-editing process, and asked whether I was going to sue. I said no. Later, he asked why I did not do so, as everyone else got £25,000 each. That was not damaging to me, as the journalist explained what the process was and I did not mind. The idea that if I had no money I could go to a lawyer and ask them, at the expense of their other clients or of the public purse to take action, in a case in which there was not substantial damage to me, strikes me as absurd.

There are therefore counter-arguments to the cases raised by Lord Prescott and others. [Interruption.] My hon. and learned Friend the Member for Harborough (Mr Garnier) says that it is not compulsory to sue, and I made that point when I was asked why I never sued Auberon Waugh who made a living out of me for about four years.

I have, however, taken serious action in some cases. This does not fall directly under the new clause, but it is the only occasion on Report when I can mention it in passing. I was successful in making a claim that lasted a week and a half in the High Court. The newspaper group concerned was aggrieved that the jury found against it, and said that it was going to appeal on the grounds that the judge’s summing up was deficient. If that appeal had been approved, I could not have gained any more money, because the award was not going to be increased. Costs would only have gone up, and not all of them would have been recoverable. Those who look after the procedure rules ought to watch out for such abuse by big, powerful people.

Having said that, there are other issues to which I wish to pay more attention on Report. The point made by the Civil Justice Council about the opportunity to make changes by statutory instrument is a better way of dealing with the matter than by doing so in the Bill.

[Jeremy Wright]

May I begin by expressing pleasure at seeing my hon. and learned Friend the Member for Harborough (Mr Garnier)—if he is not a right hon. Gentleman, he should be—in the Chamber, as he brings considerable professional expertise, as we all know, to the debate? I also welcome the contributions of other right hon. and hon. Members who have spoken.

I am delighted that the hon. Member for Hammersmith (Mr Slaughter) is speaking for the Opposition. He and I spent many happy hours discussing the Legal Aid, Sentencing and Punishment of Offenders Bill, but I am sure that neither he nor I nor you, Mr Deputy Speaker, would want to rerun all those happy hours. I accept the provisions under consideration relate to the substantive law of defamation; we are not here to review LASPO, which was subject to full parliamentary scrutiny—as I recall, very full parliamentary scrutiny—before receiving Royal Assent only a few months ago.

It is important to make it clear what the Government’s proposals will do. We are not talking about removing access to CFAs. We are talking about reforming and changing CFAs. The basic rationale for those reforms is that we wish to rebalance the system to make it fairer between claimants and defendants and correct the anomaly whereby those who bring cases have no incentive to keep an eye on legal costs. At the moment, the recoverability of success fees and insurance premiums from the losing side can have the perverse effect of preventing defendants from fighting cases, even when they know they are in the right, for fear of disproportionate legal costs if they lose.

High and disproportionate costs have a negative impact, not just because they can deny access to justice but, more broadly, because they can lead people to change their behaviour in damaging ways because of the fear of claims. Nowhere is that more true, as has been said in our debate, than in relation to responsible journalism, as well as in relation to academic and scientific debate. In MGN v. the UK—the so-called Naomi Campbell privacy case—in January 2011, the European Court of Human Rights found that the existing CFA arrangements, with recoverability in that instance, which the new clause would preserve, were incompatible with the right to freedom of expression under article 10 of the European convention on human rights.

Editors and journalists have long warned of the chilling effect of the current libel regime and argued that part of the problem is the huge costs that no win, no fee cases impose. However, as others have said, defendants are not always rich and powerful newspapers—they are also scientists, non-governmental organisations, campaigners, academics and on occasion, it seems, my hon. Friend the Member for Worthing West (Sir Peter Bottomley). It is important that when we discuss balance—this has been a theme of our conversations and debates so far—we recognise what else is going on. We should recall that clause 1 says that defendants will not be subject to actions for defamation, whatever their means, unless the claimant can demonstrate that he or she has suffered serious harm. That is important in this context. It is also important to recognise that we intend to make procedural changes—this relates very much to the remarks by my hon. Friend the Member for Worthing West—to try to reduce the costs that are paid by both sides, or either side, in the course of defamation actions. We believe that considerable progress can be made in that regard.

The CFA changes that we intend to make will apply to all areas of civil litigation as set out in the Legal Aid, Sentencing and Punishment of Offenders Act, and will do so from April 2013, apart from, as my hon. Friend reminded us, in mesothelioma and insolvency cases. The Government believe that any further exceptions to the CFA reforms are unnecessary. Our CFA reforms will ensure that meritorious claims can still be brought, but at more proportionate cost. However, I share the concern that individuals who are not wealthy or powerful sometimes need to bring defamation or privacy cases. Nothing in our proposals should prevent this where a case is a good one.

As the hon. Member for Newcastle-under-Lyme (Paul Farrelly) said, there is a degree of cross-party consensus on this. In March 2010, the then Labour Justice Minister, Lord Bach, said:

“There is a substantial body of opinion that 100 per cent recoverable success fees should not continue in defamation cases.”—[Official Report, House of Lords, 25 March 2010; Vol. 718, c. 1156.]

That was on the back of a consultation that said that

“immediate steps are needed in respect of defamation proceedings”.

It was the Labour Government’s policy to reduce the impact of success fees in defamation and privacy cases.

The Bill and the procedural reforms that we intend to take forward with it are about reducing the complexity and therefore the expense involved in defamation cases. In order for those aims to be achieved, on 27 March 2012 Lord McNally gave a commitment in the other place that we will look at the rules on costs protection for defamation and privacy proceedings. That is very much in accordance with what my right hon. Friend the Member for Bermondsey and Old Southwark (Simon Hughes) said. We will look at the rules for costs protection for defamation and privacy proceedings before the defamation reforms come into effect. I repeat that commitment here today. There is clearly more work to do, and I know that my noble Friend will be keen to consider the matter further.

In view of those remarks, I hope that the hon. Member for Stoke-on-Trent South (Robert Flello) will, on reflection, feel able to withdraw new clause 2.

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[Simon Hughes]

This debate is about how we deal with what is or is not a matter of public interest—which, in itself, is increasingly becoming a matter of public interest.

I had a few days off in August. I tried to escape the British media by going to Spain—in particular, to watch Barcelona play Real Madrid in the first half of the super cup, in that most fantastic of stadiums in Barcelona. I did not succeed entirely in having five days free from the British media, because even the Spanish media were reporting that The Sun was publishing photographs of Prince Harry, defending its actions on the basis that they were in the public interest. In that way, the debate starts to take over everything that people want to justify. However, in the light of the Prime Minister’s statement earlier and the comments across the House, I hope that The Sun understands today what is in the public interest and that that appears on the front page of tomorrow morning’s paper by way of an apology to the supporters of Liverpool who were killed or injured at Hillsborough 23 years ago.

I want to introduce the debate by tracing where we have got to in terms of legislation. My new clause 4 suggests an additional way of dealing with public interest matters, which I hope will commend itself to the House. I have had the benefit of a brief word with the new Secretary of State and the Under-Secretary of State for Justice, the hon. Member for Maidstone and The Weald (Mrs Grant), who will be responding to this debate, both of whom we welcome to their posts. It is not my intention to divide the House on my new clause today; we just need to flag up where the issues are. Also, given that the time we have been given since the Bill was in Committee has been foreshortened, I accept that the issue will need more consideration.

Until recently, the question of what was in the public interest was dealt with by the common law, as opposed to by statute. I can do no better than to quote a short excerpt from the excellent Library note on the Defamation Bill—research paper 12/30, published on 28 May—to explain what the position was then. The case of Reynolds v. Times Newspapers in 2007 established what has become known as the “Reynolds privilege”, which is a common-law defence that a publication is acceptable and therefore cannot be the subject of a successful libel action because it is in the public interest. That defence is of particular importance to the press and broadcasters, although it is available to anybody, publishing in any medium, who wishes to use it. There was then a further case in the House of Lords, called Jameel v. Wall Street Journal Europe Sprl. The commentary on those two cases, which followed one another pretty speedily, by the authoritative book on the subject, “Carter-Ruck on Libel and Privacy”, said that, in the case of Jameel,

“the House of Lords sent a strong signal that the direction of travel, post-Reynolds had not been sufficiently in favour of press freedom,”

and, as the Library paper sets out, highlighted:

“Lord Hoffman’s comment that the non-exhaustive list of ten factors that had been set out in Reynolds to consider whether the journalism employed had been responsible had been taken by some judges as a set of hurdles to be overcome by a defendant.”

Before the Reynolds case, it seems that

“it was clear that, although no generic privilege existed for fair publication in the press on a matter of public interest, there were some situations in which a qualified privilege would attach to publications to the general public,”

yet it was unclear quite how that would work.

The Bill we are considering today was preceded by a draft Bill, which was considered by a Joint Committee of both Houses. It concluded on the subject:

“The Reynolds defence of responsible journalism in the public interest should be replaced with a new statutory defence that makes the law clearer, more accessible and better able to protect the free speech of publishers. The Bill must make it clear that the existing common law defence will be repealed.”

Therefore, clause 4, which is entitled “Responsible publication on matter of public interest”, contains a proposal to replace the common law defence with a statutory defence. Subsection (6) states:

“The common law defence known as the Reynolds defence is abolished.”

[Sir Peter Bottomley]

The right hon. Gentleman might prefer to leave this question to the Minister to answer. If that substitution becomes part of our law, does that mean that no other common law could be found by judges that would allow a defence against a claim for defamation?

[Simon Hughes]

My understanding of the situation is that, once we expressly repeal the common law defence and enact a statutory defence, that becomes the basis of all the decisions the courts will make subsequently. Of course, common law will build up as the new statute is interpreted, but it will be an end to the old case law and we will start again with this legislation. Therefore, if we are taking the opportunity—I think we all want to take it—to bring to Parliament the way we define these things, it is important to try to get it right. That is why I have proposed a new clause that would deal with some of the issues, which I hope colleagues in the House believe are appropriate ones to have in the legislation. I will return to that point in a moment.

The Government’s explanatory notes to the Bill state:

“The factors listed at subsection (2) are not intended to operate as a checklist or set of hurdles”.

Clause 4(2) provides a list—paragraphs (a) to (i)—setting out matters that are defined as follows:

“in determining for the purposes of this section whether a defendant acted responsibly in publishing a statement the matters to which the court may have regard include (amongst other matters)—

(a) the nature of the publication and its context”.

For example, is it a broadsheet newspaper with a national circulation, a paper published by three people, or whatever? The list continues. The Joint Committee had suggested:

“When deciding whether publication was responsible, the court should have regard to any reasonable editorial judgment of the publisher on the tone and timing of the publication.”

That suggestion did not find support with the Government, who responded:

“We have considered the need for a specific provision of this nature, but believe that this is unnecessary, as in practical terms in determining whether a publisher had acted responsibly in publishing the statement complained of, the court would in reality be considering whether the publisher had exercised its editorial judgment responsibly. There is also the need to ensure that the defence is clearly applicable in a wide range of circumstances beyond mainstream media cases, and focusing on editorial judgment in this way might cast doubt on that. Including a specific provision would therefore appear unnecessary and potentially confusing, and we consider that the clause already provides protection for responsible editorial judgment as it stands.”

That is how the Bill came to the House and to the Committee, and the Under-Secretary of State for Justice, my hon. Friend the Member for Maidstone and The Weald, who was a member of the Committee, and others then looked at those issues. I think that the debate hinged on two things. First, did the drafting of the statutory defence in fact take account of the law as it now is, because things had moved on? There had been a case called Flood, which had just been decided and was reported this year. The Government were asked whether they appropriately took that case into account as the latest interpretation of the Reynolds case. The hon. Member for Stoke-on-Trent South (Robert Flello) suggested that it did not look as though the Government had taken that case into account and therefore argued, with the support of the Libel Reform Campaign, that there had not been enough flexibility in trying to catch up with the position the judges had arrived at. Secondly, was that sufficient in any event anyway? The debate on the second point hinged around whether it should be for the claimant to prove that the publisher had acted irresponsibly and, therefore, what the balance of argument should be. Should there be more of an onus on the claimant or on the defendant? The hon. Member for Huntingdon (Mr Djanogly)—I join others in thanking him for his collaboration and assistance when he was the Under-Secretary—said that it would “unfairly tilt the balance” against the defendant. At that stage, he therefore resisted a change. He made it clear that the Government were seeking to bring the Bill to Parliament to reflect case law as it had developed after the Reynolds case and in the light of the Flood case. Ministers, including the hon. Gentleman, were good in saying that they would consult further and hear further points. My right hon. Friend the Member for Carshalton and Wallington (Tom Brake) and I subsequently went to see Lord McNally, to put the case for a broader definition.

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[Sir Peter Bottomley]

Clause 4(6) states:

“The common law defence known as the Reynolds defence is abolished.”

My hon. and learned Friend rightly reminds us that the judge in that case made the statement about “amongst other matters”. Does he interpret subsection (6) as meaning that no other matter may be brought up by any judge, and that we are left only with what will be the statutory law?

[Mr Garnier]

Yes and no. Subsection (2) includes the phrase “amongst other matters”, so it puts what Lord Nicholls said in the Reynolds case into statutory form. I think that it is more sensible to leave this in the form of developing common law, but if we are to set something in stone, clause 4 is better than the somewhat confusing provision tabled by my right hon. Friend the Member for Bermondsey and Old Southwark.

Bad points are never improved by repetition, but it is a pity that we are doing away with the common law. Although I have lost that battle, I might as well wear my black in mourning at its passing.

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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.

[Robert Flello]

Clause 4 is an important, central part of the Bill, but some commentators believe that, as drafted, it does not represent an effective public interest defence. Others, as we have heard, believe that it should either be amended or improved by new clause 4.

Members will notice that my copy of the Joint Committee’s report is well-thumbed, and I draw their attention to what it has to say about the matter. I am sure that the Minister has already read it, but it would be worth her while to look again at what it says about what was clause 2, on responsible publication. It is important and relates to some of this afternoon’s amendments and comments. It will also elaborate on the Bill and inform views as the Bill makes its way through Parliament.

Today’s has been a good debate, as was the one in Committee, and I begin with a few observations on new clause 4. It was tabled by the right hon. Member for Bermondsey and Old Southwark (Simon Hughes) but bears an uncanny resemblance to the new clause that I tabled in Committee.

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

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

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

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

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

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

[Sir Peter Bottomley]

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

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

[Mrs Grant]

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

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

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[Simon Hughes]

I agree that there is complete and utter whatever-it-is between the two.

[Sir Peter Bottomley]

I disagree with the good people on the Opposition Benches. This Bill is about defamation. We know that there will be something on privacy, and we also know that Lord Leveson is likely to talk about the way in which the press and others operate. If this Bill, dealing with defamation, is held up to bring in something dealing with privacy in its own time, we will end up with the kind of confusion that we are trying to get away from.

[Simon Hughes]

We are hearing a quick last set of bids for how the Government should proceed. The point that will reconcile those views and mine is this. Although my noble Friend Lord McNally is keen that we should introduce reforms and have a modern law on defamation, the Ministry of Justice should none the less have a wider debate with colleagues in both Houses, particularly in this House, about how that should be achieved, while at the same time ensuring that we do not lose the opportunities to do what Lord Justice Leveson recommends. We need to have that debate. It would not preclude concluding the Defamation Bill, but whether it would include this part of the Bill, for example, or whether we would leave the issue to be addressed in the public interest debate post Leveson is a matter to be resolved. I hope that there is agreement that that sort of conversation could happen. I am sure that Ministers will want to be helpful, and I will certainly talk to my colleagues across Government in other Departments, including the Deputy Prime Minister, and say, “There is an issue here and Government collectively need to address it.” With those words, I beg to ask leave to withdraw new clause 4.

Clause, by leave, withdrawn.

Clause 5

Operators of websites

Amendment proposed: 7, page 3, line 22, leave out clause 5.—(Robert Flello.)

Question put, That the amendment be made.

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[Robert Flello]

I beg to move amendment 8, page 8, line 26, leave out from ‘court’ to end of line 28 and insert—

‘(a) is satisfied that it is not reasonably practicable for an action to be brought against the author, editor or publisher; and

(b) there is a prima facia case that the statement complained of is defamatory; and

(c) is satisfied that such person did not know that the statement was defamatory until a claim to that effect was made and did not reasonably believe that there was a good defence to any action brought upon it.’.

In Committee I moved a similar amendment—I think it was amendment 16—which sought to weed out, at an early stage, unnecessary cases coming before the courts involving no defamation. Replying to the debate, the then Minister expressed concern about the requirement for a court to determine at an early stage whether a statement was indeed defamatory. I therefore withdrew the amendment in order to reconsider it. Amendment 8 recasts it, requiring simply that a prima facie case should exist. However, it also incorporates more of the concerns raised by the Booksellers Association which I raised in Committee on 26 June. That debate can be found at column 162 of Hansard, if the Minister wishes to grab her copy and look it up quickly. No, I thought that she would not.

The then Minister gave what I felt, and indeed the Booksellers Association felt, was an unsatisfactory response.

The points made by the Booksellers Association are as follows. First, although section 1 of the Defamation Act 1996 is available to booksellers as a defence, it is very much weaker than the common law defence of innocent dissemination which that section replaced. It has been suggested that section 1 was never intended to do what it has done, and that the problem was inadvertently caused by sloppy drafting. In Committee, the then Minister felt that there were differing views on the section and on whether it was weaker than the common law defence. If that is so, it would be helpful to know who feels that it is not weaker than the Booksellers Association and other observers believe it to be.

Secondly, under section 1 booksellers, and indeed other secondary publishers such as newsagents and distributors, lose that protection if they know, or have reason to believe, that a publication contains any defamatory statement. Under the previous defence of innocent dissemination, a defence would have existed if the bookseller had a reasonable belief that the alleged defamatory material was not libellous, having been assured by his or her own lawyers, or by lawyers for the author or publisher, that one or more of the statutory defences applied.

Thirdly, as a result of the elimination of the innocent dissemination defence, a technique known as the sending of “clogging letters” was adopted. A clogging letter was a letter sent by the claimant’s lawyers to a bookseller warning that unless a publication containing the alleged libel was immediately withdrawn from sale, proceedings would be started against the bookseller. The bookseller invariably had to remove the publication from his shelves, as he did not have the resources with which to defend himself against litigation without the availability of the innocent dissemination defence. The claimant therefore achieved the withdrawal of the publication whether or not he had a proper case, without having to issue any proceedings against the author or publisher or, indeed, the bookseller. That device has been used by a number of vexatious litigants.

Paragraph (c) of amendment 8 is intended to reinstate the defence of innocent dissemination for booksellers. As they have pointed out, if they cannot rely on other defences and are considered to be an easy target, and if clause 10 does not enable the publisher and the other parties to a publication to mount a challenge, a bookseller wants to be able to at least use other defences.

I do not want to detain the House. That is the crux of what I propose, and I look forward to what the Minister has to say.

[Sir Peter Bottomley]

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

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

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

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

[Mrs Grant]

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

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

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[Mr MacShane]

No, Sir, they are not. They are just filed at the moment and can be discussed. No charges have been initiated.

Such cases are a prime example of libel tourism. One of President Putin’s chief functionaries still thinks that he can get away with libel tourism in this country. I hope that someone in the Russian embassy reads this Bill and understands that that kind of libel tourism is no longer acceptable.

[Sir Peter Bottomley]

You, Mr Speaker, and the right hon. Gentleman may remember that when we debated the Sergei Magnitsky case and the scandalous way he had been treated, an offer was made in public that the Russian ambassador might like to have a discussion with Members of Parliament. Will the right hon. Gentleman join me in extending that invitation to the Russian ambassador?

[Mr MacShane]

I will freely do so. I do not want to drag this debate into the Magnitsky affair, but it is remarkable that, around the world, people think London is still a town called Sue. Pavel Karpov is a $600-a-month state functionary, employed in Russia, who is hiring the most expensive lawyers, QCs and solicitors, and who has even hired a public relations company called PHA Media, which is run by Mr Phil Hall, a former editor of News of the World, to manage his campaign. I hope that the Karpov case will be the first to fall as a result of tonight’s Third Reading, which will go through unanimously.

When the Bill is debated in the other place, I hope that changes will be made to it to help the small man. Much of the Bill—I do not have time to go through the details—remains an absolute paradise for lawyers. The very first clause states that a statement is not defamatory unless it

“has caused or is likely to cause serious harm to the reputation of the claimant.”

Occasionally I read comments about you, Mr Speaker. I do not know whether they cause serious harm and I certainly do not think that you would wish to comment on whether they do, but you would have to shell out six times your salary to pay m’learned friends as they debated whether it did. Even the first clause, therefore, opens the door for more money to flow into the coffers of our undoubtedly underpaid legal fraternity.

It is good that we have debated the Bill and that the Government are prepared to co-operate. I agree with my right hon. Friend the Member for Tooting (Sadiq Khan) that the Bill is seriously flawed and hope that it will be re-examined in the other place and brought back here in a more helpful condition, and that, together with Leveson and, possibly, privacy legislation, we can produce a panoply of laws for our nation that will ensure for decades to come that this is a country not only where good journalism flourishes, but where people cannot be unfairly traduced by things said and printed about them.

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[Mr Garnier]

In parenthesis to what I was saying about the right hon. Member for Rotherham, I thank my right hon. Friend the Secretary of State for Justice for his kind remarks and congratulate him on his new position. I congratulated the new Under-Secretaries of State, my hon. Friends the Members for Kenilworth and Southam (Jeremy Wright) and for Maidstone and The Weald (Mrs Grant) earlier this afternoon. If my right hon. Friend maintains the tone that he adopted during his speech, this Bill will not only be improved, but markedly so. I am grateful for the stance that he took, which was in marked contrast to that taken by the right hon. Member for Rotherham, who thought it amusing, no doubt, to make personal remarks about others who cannot protect themselves here; but let us leave that there.

I also thank the right hon. Member for Tooting (Sadiq Khan), the shadow Secretary of State for his words and the approach that he and his Front-Bench team will take as the Bill goes to the other place. There is now an opportunity to develop a new defamation Act that will meet some apparent needs, such as how the law is applied and libels dealt with in relation to the internet. It is time to deal with such things.

I have noted on my copy of the Bill something that my hon. Friend the Member for Worthing West (Sir Peter Bottomley) said earlier about clause 1. As drafted, the clause confuses what is defamatory and the consequences of a defamatory statement. I hope that by the time the Bill becomes an Act, the clause will read: “A defamatory statement is not actionable unless its publication has caused, or is likely to cause, serious harm to the reputation of the claimant”. Many things are defamatory that might not cause much damage, and many things are not very defamatory but can cause disproportionate damage. The wording that my hon. Friend and I have coincidently come up with deals with that point. I dare say that others will think more carefully about that as the Bill moves forward.

On the issue of truth and honest opinion, the way the Bill is constructed is sensible. In my opinion, the law did not need changing but, if it is to be changed, clauses 2 and 3 deal with it.

I have said what I had to say about clause 4 and the Reynolds defence. I want briefly to talk about clause 6. There has been a huge amount of campaigning from various groups, such as PEN, Sense about Science and so forth, largely based on the case of the chiropractors against Simon Singh. I will not go into the facts of the case. Much of it was misunderstood, but the nub of the case was this: did the words complained about constitute allegations of fact or comment? That does not matter, because the argument and the campaign decided that academic criticism should almost be free from the law of libel.

Once we have got over that concern, we need to think more carefully about whether learned societies, which are not corporate bodies or profit-making companies, should have a right to sue in damages. We no longer allow local authorities to sue for damage to their governing reputation. Thirty five years ago, I used to get injunctions, for goodness’ sake, on behalf of local authorities, as corporate bodies that felt that they had been defamed by the local paper. Looking back, it is ridiculous to think that the Derbyshire county council case was not decided earlier, but it was not. For some decades now, it has not been possible for local authorities to sue in defamation. I rather suspect that the royal college of this, that or the other should not be allowed to sue either, although I must distinguish between that and the right of presidents and other officers of those associations to bring a personal action, if they are defamed.

[Sir Peter Bottomley]

There is one obvious problem with putting into statute things decided by judges and juries, which is common law. Would such a judgment be possible were the Bill to become law? Would the judges—juries would not be involved—be able to make a decision saying that a body corporate, whether charitable, non-profit or commercial, would be barred from taking out an action, even if it had more merit than the ludicrous one of the chiropractors against Simon Singh?

[Mr Garnier]

It is probably unwise to give cocktail advice across the Chamber, even to my hon. Friend.

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[Sir Peter Bottomley]

I will not follow what the right hon. Member for Rotherham (Mr MacShane) said about the Sergei Magnitsky case, except to say that it would be shocking if the British libel courts are used by the Klyuev organised crime group to try to get at those who are trying to expose the truth and get justice for a person who was murdered.

The person who has not been mentioned much in our debates is a man called William Hone, who is the subject of a great book called “The Laughter of Triumph” by Ben Wilson. William Hone was taken to court for criminal libel on a number of occasions. He was disobliging about Lord Liverpool as Prime Minister, he attacked the Home Secretary, who led for 10 repressive years in government, he was disobliging about someone whom he described as a “fat, lascivious toad”—I will not go into that—and he was rude about the Lord Chief Justice. Juries would not convict William Hone. We are now disposing of juries in virtually all cases of defamation or libel that get heard in the courts. I fear that we may find that advances in law in this area will no longer come from juries and judges, but will be left to the vagaries of the parliamentary timetable, which is a danger. I would therefore like to hear from the Government—perhaps with all-party agreement—that they will return to the issue for legislative scrutiny five years after the Bill becomes an Act.

I believe that the press do not just have the right to be right; I believe they have the right to be wrong. There is the question of what they do when they have got it wrong. Just saying, “Only if you can prove something in advance,” means that we will lose most things.

I end with this bit of advice for those who find that an investigative journalist has written an attack on something for which they are responsible. I was a junior Minister for six years, and whenever I spotted a report by an investigative journalist—including some by Paul Foot—I would ask my Department to find out the answers to various questions that would test whether the accusations had foundation. When I discovered that they had, I would take action. However, in one case when I discovered that the accusations had no foundation, I notified Paul Foot, who told me that it was the first time in the whole of his career as an investigative journalist that someone in authority had come back to him with the information that had been sought and asked whether further inquiries ought to be made. The response to attacks in the press is to find out whether they are justified, not to try to defend oneself whatever the truth.

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.

Data Protection in the Areas of Police and Criminal Justice (EU Directive)

Peter Bottomley Excerpts

Tuesday 24th April 2012 Commons Chamber

[Mr Blunt]

Our priority in negotiations will be to resist the application of the directive to all domestic processing—that is, data sent between two United Kingdom agencies. Although article 6a of protocol 21 means that this will not apply to us, we feel that it is important to remove this expansion as such data processing should not be the subject of European Union rules. We will seek to remove that for all European Union countries.

As further examples, the proposal lays down new obligations for data controllers regarding the documentation and records that they must keep and the consultations that they must hold with the Information Commissioner’s Office in order for the processing to be considered compliant with the rules. We also have reservations about the compulsory appointment of data protection officers, a role that will need to be filled ostensibly to ensure that data controllers fulfil the various obligations presented to them, including those that I just outlined.

We already expect robust data protection governance as a matter of course in public authorities. However, we question the necessity of having the European Union telling us how to create, organise and run these arrangements. The more prescriptive and burdensome aspects of the directive are opposed by the Government and we will seek to remove or mitigate them during negotiations in the Council of the European Union. This is the beginning of a lengthy process of negotiating new data protection legislation, not the end. The UK will seek to influence negotiations in order to bring about outcomes that are more in line with our policy objectives, which is to end up with an effective but proportionate framework.

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

Will the Minister give way?

[Mr Blunt]

I will.

[Sir Peter Bottomley]

I think that my hon. Friend the Member for Dover (Charlie Elphicke) could put the question on costs better than I could.

[Charlie Elphicke]

rose—

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[Madam Deputy Speaker (Dawn Primarolo)]

Order. Minister, please resume your seat for a moment. Sir Peter, I thought that you wanted to intervene. You have been in the House a long time and know that you cannot stand up and then ask someone else to speak for you, unless you have lost your voice, which you have not.

[Sir Peter Bottomley]

You are right to correct me, Madam Deputy Speaker, and I think that I am also right in saying that every word in “Erskine May” may create a new precedent. My question, which I think my hon. Friend the Member for Dover would have put better, is this: will my hon. Friend the Minister start talking about costs at some stage during his very good speech?

[Mr Blunt]

I will not. I am unable to, because work is still ongoing on the impact assessment to try better to identify the precise costs of each measure. If my hon. Friend has had a chance to read the impact assessment, he will have noted that much of the assessment in this area is based on fairly tentative criteria. What are not included in the impact assessment are the benefits of a successful negotiation or the costs that would be inflicted on us if we chose to opt out and had to live with the consequences.

As I was saying, this is the beginning of a lengthy process of negotiating new data protection legislation, not the end. We will seek to influence negotiations in order to bring about outcomes that are more in line with our policy objective, which is to end up with an effective but proportionate framework. I note that every other member of the European Union faces that same challenge of finding the right balance between the two principal objectives: the privacy of our citizens and the protection of their data; and the protection of their interests through the operation of our police and criminal justice agencies. However, it is worth noting that the proposed directive is one part of a two-part package of revised data protection instruments that the Commission proposed in January; it also proposed a regulation that would cover general and commercial data processing by public and private bodies. The regulation is neither the trigger, nor the subject of this debate.

To return to the directive, which is the subject of today’s debate, let me summarise our position. We believe that an opt-out decision is a possibility for the Government but that it would be the wrong choice for the United Kingdom. We would need to replace the directive with bilateral agreements with each member state, which would be a time-consuming and tortuous process, and it is likely that in those negotiations we would find ourselves bound by aspects of the directive that we feel confident we can remove in negotiations.

The Government’s position, therefore, is clear: we want to be part of a European data protection framework that enables practical, common-sense sharing of data between member states’ law enforcement agencies engaged in the fight against international crime. We believe that the limiting effect of article 6a on the aspects of the directive that relate to data exchanges within the United Kingdom means that we should be content to be part of it, which will of course substantially reduce the costs identified in the impact assessment. Although there are areas of the proposal that the Government will seek to alter, I can unhesitatingly commend the motion to the House.

[Mr Andy Slaughter (Hammersmith) (Lab)]

I will begin by saying that it is not the Opposition’s wish to divide the House on this resolution—

[Sir Peter Bottomley]

Look behind you.

[Mr Slaughter]

I think I will take interventions a little later in my speech.

It is not my wish to speak for long. These debates, a number of which it has been my privilege to speak in over the past few months, are always animated, if only on the Government side of the House—indeed, sometimes I think mine is the last friendly voice the Minister hears.

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[Mr Slaughter]

I am happy to do that, and I am even happier to note the support from my Back Benchers—the almost unanimous support—[Interruption.] No, 50% might be a better figure.

The key to the balance that I have talked about is the drafting of the directive within very prescribed bounds to restrain the opportunities for data sharing, thus the controls for in-country transfer, to which the Minister has referred, are restricted—if one accepts what the draft directive says. As currently drafted, it covers data transferred between two UK regional police forces with no cross-border elements, but that will apply to the UK only when such processing is pursuant to an EU measure on police or judicial co-operation, and that is indeed what the draft directive states.

I just worry that sometimes the intention is not carried out in practice, and I cite—on a perhaps analogous subject—from the same Guardian article today this note of caution:

“Last week the European parliament ratified plans to allow airline passenger records, including credit card details, for all transatlantic flights between Europe and the US, including in and out of the UK, to be handed over to the US department of homeland security to be stored for 15 years.”

If these proposals are to go ahead, they need to do so in such a way that there are the tightest possible controls on the exchange of data.

[Sir Peter Bottomley]

First, does the hon. Gentleman, who is doing well, if I can say so without being patronising, think that when those data rules are breached the victim of the breach should be notified? Secondly, and separately, does he agree with my hon. Friend the Minister that the problems of cost and of value for money are a matter for another day?

[Mr Slaughter]

I accept what the Minister has said—that the matter is at an early stage and we should not press him on those points. I am very happy to be patronised by the hon. Member for Worthing West (Sir Peter Bottomley), and whether he is asking by himself or by proxy—

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[Mr William Cash (Stone) (Con)]

The issue here is one of process as well as substance. I am sorry that the Lord Chancellor has just left the Chamber. I was glad to note that he was here before I rose, but he seemed to depart rapidly. I can only assume it was because some of the remarks that I am about to make may not be entirely to his liking or that of the Under-Secretary.

This is a Lidington debate, and the significance of such debates is that Parliament has an opportunity to debate, and vote on, motions that clearly set out the Government’s recommended approach—that they wish to exercise their right either to opt into a title V proposal or to opt out of a Schengen-building title V measure.

I pay tribute to my hon. Friend the Member for Camborne and Redruth (George Eustice) for his remarks on the substance of the matter, but there is a very important question to be asked about scrutiny. I speak as Chairman of the European Scrutiny Committee, having just this afternoon come back from duties in relation to the Danish presidency.

I say to the Minister that the way in which this matter is being handled is a disgrace. I will of course refer to the Committee this quite blatant breach of the spirit of the proposals that we have agreed in the past, and I intend to ask the Committee whether it wants to bring him in front of us to explain himself and how this has been handled. It is that serious.

No mention of the Schengen protocol or offer of an opt-in debate was made in the Government’s explanatory memorandum of 13 February, as it should have been, nor was any formal correspondence to that end received by the European Scrutiny Committee. I also mention that the Schengen protocol gives the United Kingdom and Ireland three months to opt out of legislation that builds on the Schengen acquis. The Government’s omission is very significant and has meant that the Committee has not had the opportunity either to scrutinise the opt-in/opt-out decision or report to the House on it prior to a debate taking place.

It may be a matter of some interest to the House that there is no report before the House on the matter. Members can go to the Vote Office and get the Committee’s previous paperwork on the provision, based on our consideration of the explanatory memorandum of 13 February. In that document, we stated:

“It is regrettable that the Minister’s Explanatory Memorandum did not mention any of”

certain opt-in considerations, in blatant breach of Baroness Ashton’s undertaking to Parliament of 9 June 2008. We continued:

“We ask the Minister to keep us informed of progress in negotiations on the points of concern for the Government…We assume, therefore, that the negotiations are unlikely to be completed under the Danish Presidency, and would be grateful to be informed if and as soon as this assumption appears to be incorrect.”

On every single element of what I have just described, the Minister is completely in breach of undertakings and of the requirement to refer matters to the Committee appropriately.

The manner in which the decision has been explained is a disgrace. There has been no attempt to explain it, or its implications, to the House properly. I have to go further and say that Members will need an explanation for the Government’s omission, and I hope the Minister will find an opportunity to provide one before we conclude these proceedings. It must have been obvious to the Government that the draft directive was a Schengen-building measure, because several of the recitals state explicitly that it is and because the framework decision that it replaces was stated to be a Schengen-building measure. Recital 43 states that the UK is

“taking part in this Framework Decision, in accordance with Article 5 of the Protocol integrating the Schengen acquis into the framework of the European Union.”

In order to have a meaningful and informed debate on the Floor of the House under the Lidington arrangements, the Committee should have had reasonable notice of the Government’s recommended approach. A mere 24 hours is clearly inadequate.

I could refer to many other matters, but the question on which I shall conclude is simply this: what negotiating strategy will the Government adopt to mitigate the negative impact of the proposal as drafted, and what is the Minister’s estimation of the likelihood that the Government’s strategy will succeed?

This is a very sorry day in the scrutiny of European legislation. I am only sorry the Lord Chancellor is not here, because if he were, I would invite him to go to the Dispatch Box instead of the Minister, who has let us down so woefully.

[Sir Peter Bottomley]

Were there to be a meeting of Ministers of European Union countries during the next few days, and were there to be either a satisfactory or an unsatisfactory outcome, how could it be reported to the House and how could we take a decision that supports or negates any decision that is taken this evening?

[Mr Cash]

I find it extraordinary that my hon. Friend should seek to defend the Government’s breach of a series of requirements as prescribed in the spirit of the orders before the House, but in addition, it is perfectly clear—to me at any rate—that these proceedings are happening because of the timetable of Prorogation.

Transparency and Consistency of Sentencing

Peter Bottomley Excerpts

Thursday 2nd February 2012 Commons Chamber

[Paul Maynard (Blackpool North and Cleveleys) (Con)]

I must apologise to my hon. Friend the Member for Shipley (Philip Davies) for not being a lawyer but daring to participate in this debate. I hope he will forgive me. I must also apologise for not living in Oxfordshire or in a nine-bedroom mansion. I live in a two-bedroom ex-council flat; I hope that does not exclude me from this debate.

I represent the fourth most deprived Conservative-held seat in the country, and I hope that allows me to participate in the debate because, as my hon. Friend the Member for Gainsborough (Mr Leigh) has just pointed out, it is the poor who suffer most as a consequence of crime.

I should like to question some of the comforting nostrums that have been floating around the Chamber. Those who have read their New Statesman this morning might call it “reassurance” politics—saying things to make ourselves, rather than those we seek to represent, feel better. That is my primary concern. Language is crucial in this debate. We have to be judicious and proportionate in everything we say, but I sometimes fear that is rather difficult.

I also believe that victims have to have a crucial role in this process, not because I believe, as I fear some do, that victims will automatically demand the harshest judgment possible—far from it. We can all swap polling and survey evidence, but I want to highlight a survey I saw from 2009, which said that only 11% of the victims questioned felt that sending more offenders to prison would “do most” to reduce crime. That is not to say that people should not go to prison or that prison should not be unpleasant, but it does indicate that the comforting nostrum that all victims are slavering for the chance to see those who have caused them harm swing high simply is not the case.

I commend the Government for publishing more local, transparent data on sentencing. That is vital to improving not just transparency but public confidence in the system. I firmly believe that a transparent and consistent sentencing policy will be possible only if we start to reduce the prison population. Unlike some hon. Members here today, I do not believe we should seek to turn this nation into a gulag with as many people as possible crammed in.

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

My hon. Friend and I heard the interesting and often entertaining speech of our hon. Friend the Member for Shipley (Philip Davies), who mentioned the Netherlands. Does my hon. Friend the Member for Blackpool North and Cleveleys (Paul Maynard) agree that if the Netherlands can close eight prisons because they do not have enough prisoners to fill them, and if their apparent crime rate and their apparent imprisonment rate are half of ours, on a population basis, we have a lot to learn from those who agree that we need to cut crime, cut the number of victims and cut the number of people in prison as well?

Anonymity (Arrested Persons) Bill

Peter Bottomley Excerpts

Friday 4th February 2011 Commons Chamber

[Anna Soubry (Broxtowe) (Con)]

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

I am grateful, Mr Speaker, for the opportunity, which arose as a result of my being drawn in the ballot for private Members’ Bills, to introduce the Bill in the House. It is important that I begin by explaining where the Bill comes from and what I seek to achieve, because I hope to cure a real mischief. Hon. Members will recall what happened last summer, and I am not keen to rekindle that debate. The coalition Government proposed that anonymity be given to people when they were arrested and subsequently charged with the offence of rape. There was much debate; many of us did not think that it was a good idea and, in various ways, we made it clear that such a change in law was not required.

We made representations both in private and in public, and it is very much to the credit of the Government and of the Under-Secretary of State for Justice, my hon. Friend the Member for Reigate (Mr Blunt), that there was a change of heart. I say that, because I know that he had a long-held belief born quite properly out of a constituent’s case with which he had dealt many years ago, and which had stayed with him. I hope all hon. Members would wish to act when they come across something that they think is wrong, and we have the great benefit of having a place in the Chamber and a process that we can use to succeed in righting a wrong. I should like to play a part in righting what I believe is a serious wrong.

The Bill comes from that debate. Many of us, even though we did not necessarily support the coalition’s proposals, felt that we could all come together and agree that there was a serious problem that had evolved over the years and that needed to be solved. In the past, the press did not publish the name and address of someone when they were arrested, but waited until they were charged to do so. Over the past few years, that has all changed. The press not only publish the name and address of someone when they have been arrested but they give more details. As we have recently seen with events in Bristol, it has reached the stage where many of us believe it has got to stop. A great wrong is being done, and it is time that it was righted. That is what I seek to do—to stop this sort of reporting.

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

The problem with publicity arrangements when someone has been arrested is that the media can refer to all kinds of detail that they are not allowed to refer to once a charge is brought. Is my hon. Friend trying to fill that gap?

[Anna Soubry]

My hon. Friend is quite right—that is exactly what I am trying to do. I do not want to turn this into a debate about press freedom, because it is not as simple as that.

I should like to explain where I am coming from—a dreadful modern expression, but it is an accurate description. About 30 years ago, I first became involved in student politics—you may remember those times, Mr Speaker. I was a student reading law—you were probably at kindergarten—and I became involved in student politics. I then trained to become a barrister. Student politics, rather bizarrely, took me to Scotland, because I won an election. I blame not just the good students of Stirling university for that but my hon. Friend the Member for Finchley and Golders Green (Mike Freer)—we, too, go back many years. I ended up as the honorary president of Stirling university, and I was in need of a job.

It had always been my intention and ambition to work in the broadcast media, for reasons that I do not need to divulge to the House. The only good advice that I ever got about how to achieve my ambition was to start on a local newspaper and learn my trade as a journalist. I did that. I worked for a year on a newspaper called the Alloa and Hillfoots Advertiser and Journal. It was a great publication. It employed at least two reporters, and I was one of them. I covered everything, from the fortunes of Alloa Athletic right through to the editing of the pigeon club—one of my greatest moments in journalism. In all seriousness, I honed a trade there. I learned a great deal. At that time we never published the name and address of anybody who was arrested, because a convention existed.

In due course I was lucky enough to go into television. I worked in television for many, many years, not just as a presenter, but as a reporter. I have always been very proud of my membership of the National Union of Journalists. I was shop steward. That does not make me a good journalist, but I hope it explains where I am coming from, and I do not want my remarks to be seen as an attack on all the people with whom I had the great honour to work and whose skills I still admire.

If we look at what is happening in Egypt, we know that it is because of the courage of the media there that not just all of us know what is going on there, but most importantly, the people of that country, notwithstanding the oppression in place, know what is happening. We sometimes forget the invaluable work that the media do, and how brave and courageous many reporters are, especially in such situations. I am keen to emphasise that this is not an attack on the media, but it is a serious criticism of the antics that have prevailed for too long among certain sections of the media. That is what the Bill seeks to address.

I mentioned events in Bristol. Let me make it clear that I do not intend to name anybody, and I am sure that hon. Members will also be keen not to name anybody, save for this: I do not think there is anybody who is not aware of the publicity and media coverage that was given to the first man who was arrested following the murder of Joanna Yeates. It is right and fair to say that everybody with any sense of decency and sensibility has accepted that the coverage of that individual was, if not outrageous, as I believe it was, certainly unacceptable and plain wrong. It is as if we had forgotten that one is innocent in this land until proven guilty. Unfortunately, it is not the first time that that has happened, but it is the most extreme case that we have seen.

Everyone tends to forget that on being arrested, a person suffers the trauma of the arrest. It is difficult to imagine a worse accusation than to be accused of taking somebody’s life, raping someone or doing something horrible to a child. There is the trauma of the process and the nature of the allegation, and on top of that, the person’s name and address appear in the local paper. If it is a high-profile case, they appear in the national papers.

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[Anna Soubry]

I thank, I think, my hon. Friend for that intervention, although it is the sort of intervention that is not terrifically helpful, in that unfortunately I do not know the answer and I will not pretend that I do. But I do know that throughout the United Kingdom the convention used to be not to report the name and address of someone when they were arrested. When they were charged, it was completely different.

To return to the point made by my hon. Friend the Member for Loughborough (Nicky Morgan), because people who committed offences, especially in their local community, were dealt with in the magistrates court where there was a reporter from the local press, upon conviction or a guilty plea, their name would be publicised locally. People would know that Bloggs down the road had had his hand in the till, or that Mrs Somebody had smashed the bus shelter. It was almost part of the punishment that people’s names would be in the local paper and that neighbours would know who had committed a criminal offence. It is a great shame that, for perfectly understandable reasons, so many of our newspapers now simply do not have the reporters to cover such cases. There is also a very good argument that they are missing a lot of good cases that they should be covering for reasons that I have explained, and also because they provide good copy.

The other reason why our newspapers and television networks are suffering a decline in circulation and are engaged in a war of ratings is the internet. All hon. Members, especially those of us who are new to this place and fought in marginal seats, are more than aware of the great power of the internet, Facebook, Twitter—truly not my bag; I leave that to people considerably younger than I am. But we are all urged to have our websites and update them regularly, and to send out our e-mail newsletters. We recognise the fantastic benefit that the internet has given to society, but there is a downside. With all good things, there is always a downside. The downside of the internet is that there is an abundance of information; as I have said, for false slurs can stay on the internet in perpetuity. The internet is a genuine alternative for sources of information, including news, to newspapers and television. I have a great deal of sympathy for newspapers that put a lot of their news on their website, which is free.

I have to make this point, because it is important. To their credit, by challenging effectively the financing of the BBC, the coalition Government are asking whether it is fair that its website is completely free to view. The BBC website is an outstanding source of news, but it means that newspapers in particular, as well as other broadcasting companies, operate their websites with one hand tied behind their back, because they do not have the advantages that the BBC has through the licence fee and the other freedoms that it enjoys which allow it to produce such an excellent website.

[Sir Peter Bottomley]

I clear my throat by saying that I do not agree with what appears to be a suggestion that the BBC should not be excellent in producing its website. Could the convention that my hon. Friend grew up with be reintroduced, and would it be possible for the Press Complaints Commission to agree to what she is going for, or do we really need this legislation?

[Anna Soubry]

I was going to deal with precisely that point. I would much prefer the profession that I was once a member of to self-regulate in the way that it used to. I am grateful that a member of the PCC contacted me to talk about the code of conduct. I think that in 2003 there was much consideration of a change to the code of conduct following the arrest, under the Terrorism Act 2000, of various people, I think in Birmingham. Unfortunately, that never resulted in anything. With respect to those whom I used to work with, and the profession that I am proud to have once been a member of, I am afraid that we have gone way beyond self-regulation.

I wish that the media would regulate themselves. To be blunt, I wish that people would not buy the newspapers or watch the television news programmes that they then condemn for the type of coverage given to the first man arrested in the Bristol case, but unfortunately that will not happen. We could just wait for common sense to prevail and for the previous convention to be returned to, but my fear is that other people will suffer in the meantime in the way that he has suffered. That is why I believe that it behoves this place to look at how we can improve the law to ensure that this mischief is cured once and for all.

I might have to explain, although perhaps not to everyone in this place, why it is wrong for people who are arrested to have their names published in the newspapers. A slur is placed on them, because the attitude that there is no smoke without fire always prevails. At this juncture, I should explain that the police must have reasonable suspicion before arresting someone, but there is a good argument that they are perhaps a little too keen to secure an arrest. Members may remember the expression, which was used in newspapers and on television and the radio, that a man of such and such an age was “assisting the police with their inquiries”. There now seems to be more of a tendency in those circumstances for the police to arrest someone to secure their attendance at the police station and ensure that the provisions of the Police and Criminal Evidence Act 1984 are abided by, because being an arrested person gives that individual certain rights once they are in the police station. The police need only a reasonable suspicion to arrest someone.

However, individuals are charged only when there is at least a prima facie case, and charging normally comes towards the end of an investigation when all the evidence has been gathered and considered. In serious cases, the charging decision is shared with the Crown Prosecution Service, sometimes with leading counsel brought in so that the right charge is decided upon. The CPS and the police will have gone through various tests to decide, for instance, whether it is in the public interest to charge an individual, whether there is a reasonable chance of conviction and so on. By the time they come to charge the individual, therefore, they are a long way down the track in an investigation, and hopefully closer to securing the right person to be placed in the dock, because once someone is charged, they are very swiftly in court.