Defamation Bill

Sadiq Khan Excerpts

Wednesday 12th September 2012 Commons Chamber

[Sadiq Khan (Tooting) (Lab)]

First, I take the opportunity to congratulate and welcome the entire Front-Bench Justice team to their new roles; I wish them well. I also welcome the Justice Secretary to the Dispatch Box for his first outing in his new office. I congratulate him on his well-deserved promotion to the Cabinet and look forward to working with him in those areas where we have shared objectives, such as the updating of our outdated defamation laws. I agree with much of what he said and the tenor of his speech on Third Reading.

Many people have played a role in getting the Bill to this stage and I thank all those who have been involved in its long passage: the Libel Reform Campaign, whose members have shown dedication and passion in rightly pushing Parliament to modernise our outdated defamation laws; the working group established under the previous Government by my right hon. Friend the Member for Blackburn (Mr Straw); the Joint Committee of both Houses that scrutinised the draft Bill; and all those who participated in the Second Reading debate and Committee stage, including all the former Ministers.

We welcome much of the Bill—a single publication rule, measures to protect foreign defendants from actions brought in this country, clarification of and improvement to the defence of honest opinion, and additional protection for a limited number of scientific and academic publications—so let me say straightaway that, despite being hugely disappointed with the Government’s approach in Committee, when they failed to take on board our concerns and those of experts, and their approach to some of the issues raised on Report, we will not oppose Third Reading. We have high hopes that the new team and those in the other place will revise and improve the Bill.

We firmly support the principle of modernising our out-of-date defamation law—indeed, we set the whole process in train when in government. This Bill is the vehicle to bring our defamation law into the 21st century, making it fairer, simpler and cheaper so that public debate is encouraged, not stifled. Our emotional attachment to the Bill is therefore strong. That said, as it stands the Bill is a wasted opportunity. Blue moons come around more often than defamation reform: the most recent reform took place in 1996, and the one before that in 1952—even the Justice Secretary’s predecessor was not in Parliament then—so we should not expect the next opportunity to arise soon. We need to take full advantage of this window. Furthermore, there is political consensus: all three main political parties called for an update of our defamation law in our election manifesto. The absence of major policy differences should allow us to focus our energy on getting the Bill right and make the most of an infrequent opportunity. That is why we are so disappointed: we have not grasped that opportunity.

The Bill has reached Third Reading without any major improvements or changes since it was first published back in May. The Joint Committee did some excellent work, and its members must be tearing their hair out because most of their hard work has been wasted. The Bill is deficient in several respects: it makes no specific provision on corporations bringing defamation proceedings; it deals inadequately with the treatment of website operators; and there is no definition of serious harm. To add insult to injury—or perhaps I should say injury to insult—the Bill risks making matters worse by codifying an earlier version of the Reynolds defence of responsible publication.

We have other concerns. The Bill fails to provide a new and effective public interest defence. The Government still want to rely on regulations to sort out the mess that is clause 5, but despite more than four months having elapsed since the Bill was first published, no regulations or draft regulations have been seen. No effort has been made to address the issue of costs or judicial case management. What is the point of reforming the law if, at the same time, we take away the ability of the ordinary citizen to use it or of the courts to prevent it from being abused?

As you know, Mr Speaker, I am an optimist. This week, we have seen evidence to encourage my optimism. On Monday, the new-look Justice team showed their willingness to recognise the errors of their predecessors by withdrawing the statutory instrument that would have resulted in deep cuts in compensation for victims of crime. Perhaps that was the first indication of a new approach—a Department with completely new Ministers that is not afraid to accept that it got things wrong in the past. The Justice Secretary said that his new team do not have a closed mind on clause 4. I hope that they do not have a closed mind on the rest of the Bill either.

I accept that two major U-turns in a week may be one too many. I accept that there has not been sufficient time over the past week to look at all the mistakes by the team’s predecessors over the past 28 months, but if this is indeed a new approach by the Ministry of Justice, I hope that it might be applied to the Bill in the other place. I am happy to work with Ministers to that end. Not for the first time, we look to the other place to address the shortcomings of a Bill leaving the Commons.

[Several hon. Members]

rose—

--- Later in debate ---

[Mr Garnier]

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

[Sadiq Khan]

Especially for free.

[Mr Garnier]

Yes, especially for free.

The Derbyshire county council case was a development of the common law. The judges decided that it was no longer appropriate for a local authority to bring an action for damages in defamation. As it happened, it was against our right hon. Friend Lord Tebbit—but I am sure that that had no influence on the judges. As I understand it, nothing in the Bill has any bearing on whether the Court of Appeal or Supreme Court can reach a similar decision based on argument in respect of a learned society. Since we have a Bill and if we are to do that, however, we might as well think about it between now and October or November—whenever the Bill moves to the other place—and deal with it in legislation, not least because the issue is hot and strong following the Simon Singh case.

The Bill has good intentions and contains some good, defensible and sensible clauses. It also probably promises more than it can deliver, particularly in relation to libel tourism. I disagree with the right hon. Member for Rotherham about its being a bad thing that people want to come to London to litigate. Nobody seemed to complain the other day when Abramovich sued Berezovsky were in this jurisdiction. That demonstrates that in the United Kingdom people can find uncorrupted judges who will deal fairly with difficult cases. If foreigners want to sue other foreigners in our courts, I see no problem with that. Before the right hon. Gentleman rises again to defame others under the cloak of absolute privilege, he might consider that if the courts find that there is no real connection between the litigants and the jurisdiction, they can strike out the claim under the Spiliada principles, with which I am sure he is familiar. They essentially mean that that court is not the appropriate forum in which to bring an action.