Defamation Bill

Debate between Simon Hughes and Peter Bottomley

Wednesday 24th April 2013 Commons Chamber

[Simon Hughes]

I understood that and I will say why I think the measure is a reasonable last change that the House should support. I wish to pay tribute to several people, including Lord Lester of Herne Hill who introduced a private Member’s Bill to Parliament some years ago and in many ways triggered this reform of our defamation legislation. I also pay tribute to my noble Friend Lord McNally, who has steered a controversial Bill through many stages. He referred in his speech yesterday to the fact that it has been through the pre-legislative stage and the legislative stage. It has been considered by the Liberal Democrat party; there were conference debates and resolutions were passed on it, and there have also been many cross-party conversations.

I was a little troubled that the hon. Member for Stoke-on-Trent South (Robert Flello) was slightly churlish about the point we have reached. His party and mine, as well as the Conservatives and Cross Benchers, have worked together on the threshold for dealing with corporate claims, and we have made progress on that. Therefore, today is progress along the lines that he wanted, and that he knows colleagues from all three parties wanted. He pretends to be naïve—which he is not—about the way these things work, whether or not there is a coalition Government. At the end of a political process in Parliament, negotiations take place in the public light and also behind the scenes. As he knows perfectly well, that has happened with all three parties to try to get to the most agreeable and consensual place. My party has been as much a part of that process as the Labour party and the Conservatives in arriving at this point.

The Minister rightly says that this is not about what is known as the Derbyshire principle. For those outside the House who have no clue what that is, in essence—I do not pretend to be legalistic about this—it is a principle enunciated by the courts in a case to do with a local authority, which effectively stated that local authorities cannot generally sue to protect their reputation because they are public authorities. However, as I think everybody has agreed in both Houses, common law will evolve, which does not stop it being dealt with by further judgments of the courts across the United Kingdom. In light of the Localism Act 2011, there may be further definitions of a public authority that seek to deal with the issue of a private body that does public authority work. That business remains unaltered by the Lords amendment.

The Lords amendment, which has returned to this House in a form I hope will be accepted, would provide one additional hurdle for people who are seeking as companies to use this country’s defamation legislation. It states:

“For the purposes of this section, harm to the reputation of a body that trades for profit—”

therefore not a body that makes no profit—

“is not “serious harm” unless it has caused or is likely to cause the body serious financial loss.”

I heard the previous speech and we can debate whether that is the perfect wording. It is, however, a clear statement that there must be “serious financial loss” before someone gets to a position from which they can win a defamation case. The Government rejected the idea of a pre-hearing. I understand that and think they were right because it would have meant going round the courts twice.

The Government have accepted that the bar for companies should be higher than that for individuals, which I am sure is right. That measure is meant to deal with the sort of cases that my hon. Friend the Member for Worthing West (Sir Peter Bottomley) alluded to where in the past individuals were clobbered by companies with huge resources and assets in a way regarded as totally unfair. As Lord McNally pointed out yesterday in the House of Lords, not only have we now, I hope, protected the little person in financial terms against the big corporate giant, we have also done things to protect academic reputations and academic dispute, and to allow that to go on without the threat of defamation. We have also, I hope, made the law clearer and brought it up to date.

The hon. Member for Stoke-on-Trent South said that if the Labour party returns to government, it may wish to return to these matters, and I suppose any Government may want to do that. In this country, however, we understandably do not reform defamation law—generally a cross-party exercise—very frequently. This is a major piece of legislation and I hope that we have dealt with the last tricky issue in a way that provides greater protection for the individual against the big corporate. I think that is a job well done in both Houses of this Parliament.

[Sir Peter Bottomley]

I apologise for not being present at the start of the debate, and I am grateful to my hon. and learned Friend the Member for Harborough (Sir Edward Garnier) for introducing my interest. I should declare that I have been successful in three major defamation actions, and I hope I shall not have to take another.

I want to tell the story of Richard Doll, who drank too much college beer when applying to study mathematics at Trinity college, Cambridge. He did not get chosen, so he went to St Thomas’ instead. He had an interest in asthma and lung diseases. In 1950, he did a quick study on whether motor fumes or tarmac caused lung cancer, as was suspected at the time. He and his colleague, Bradford Hill, discovered that the common factor was smoking. They did not show until 1955 beyond any doubt what had first been suspected by German scientists in the 1930s, namely that, if a person smokes 25 cigarettes a day, their chances of developing lung cancer or associated serious illnesses increased by 25 or 50 times—I forget the actual figure.

If the too-frequent current habit of commercial companies suing for damage had been prevalent when Richard Doll published his material, I suspect that the tobacco companies would have shut him down. When he later came out with the proposed link, which was proved, between asbestos and serious lung conditions, the same thing might have happened. One vital question is how we protect scientific speculation and the publishing of preliminary findings without the risk of action.

I believe we should accept the Lords amendments in lieu because they give conditions in which court authority is necessary if the action is to start. There is one condition by which the court “must” rule action out. I hope the courts realise that they “may” disqualify such action on other grounds. There is a “must”, but the measure leaves open the “may” option for disqualifying cases.

Church of England (Women Bishops)

Debate between Simon Hughes and Peter Bottomley

Wednesday 12th December 2012 Commons Chamber

[Simon Hughes]

The hon. Lady and I are on the same wavelength on that. I understand the arguments for establishment, but I believe that a radical Church should not be part of the establishment. We should be outside the establishment campaigning for Christian values, but we have ended up being in the establishment by accident. That is a debate for another time, and we will not resolve it today.

One paradox is that the established Church of England has decided not to have women bishops when the head of the Church of England, the supreme governor, is a woman. The whole thing is inconsistent. There is another anomaly in the argument that, because of the relatively recent history of the Church, only men can be priests, and that people want to be under the pastoral responsibility of a male bishop. The Church has provided that option in relation to priests, and it works. Now it has come up with a similar proposal for those who want a male bishop. It seems to me that if the first worked, the second is likely to work. I ask people to be generous and less suspicious and untrusting. It is understood that some people have a different view, and everybody has tried hugely hard to accommodate it.

[Sir Peter Bottomley]

I remember my wife, as a female Secretary of State, taking the present Bishop of London to see the Queen to present the bishop, who would not ordain women, to be head of the Church of England.

The right hon. Gentleman said that the Church of England decided not to have women bishops. The fair way to put it is that the Church of England Synod decided by a very large majority to have women bishops, and it is now a question of how and when, rather than rejecting that.

[Simon Hughes]

I agree.

I am clear that, in theory, there is no objection to women priests according to the Bible and Christian teaching. I am not a theologian, but the theology seems clear to me. However, it also seems to me that the Anglican Church has accepted women bishops all around the world. According to the information that I have, there are five Anglican provinces that already have women bishops, one of which has a woman presiding bishop—New Zealand and Polynesia, Australia, Canada, southern Africa and the United States. There is also the diocese of Cuba, which is not in any province.

A further 12 provinces have agreed that they can have women bishops and they are not, as it were, the usual suspects—Bangladesh, Brazil, central America, Hong Kong, Ireland, Japan, Mexico, north India, the Philippines, Scotland, Sudan and Uganda. If I may say so, for heaven’s sake, if all those places have dealt with the theological argument and concluded that this is possible, then the Church of England is far from leading the Anglican communion; rather, it is following behind. There is a remaining group of provinces that have not yet accepted that they can have women bishops, but which have women priests, so they are clearly on the way. It therefore seems that many people in the Anglican communion have addressed this issue both in theory and theology and in practice.

Let me repeat what has been said strongly by others. My experience is that the Church has benefited enormously from allowing women into the ministry of the priesthood in the last 20 years, not just through their life experience, pastoral, academic and intellectual qualities and preaching ability, but simply through the sheer numbers. The right hon. Member for Exeter, who opened the debate, referred to that. At the moment, 20% of ministers in the Anglican Church are women. Across the Christian denominations in the UK, 20% is the average—the Methodists have 40%, but the average is 20%. In 2010—the last full year—more women than men were ordained as Anglicans into the priesthood for the first time. There are now 50% more women in the Church of England in full-time parochial appointments than 10 years ago. One in five of the paid clergy are women. All the evidence is that people are saying—from evangelicals to those in other parts of the Church, from women to men, from old to young—that they believe there should be women bishops in the Church.

The Church desperately needs more people willing to be its priests, its bishops and its leaders, to get out there and do the job of preaching and teaching. To say that women cannot be allowed any further than the first two rungs of the ladder—that they cannot be in the leadership—is ridiculous. It is to deny a pent-up opportunity that all of us who have watched women at work in the Church have seen—and I would not be forgiven if I did not say that among them is my wonderful sister-in-law, who is currently a chaplain for a hospice in Essex and who has served in the Chelmsford diocese for many years as a wonderful priest and member of the Church.

Let me refer to what we do now, because that is the question. I do not think we should take over the role of the Church of England now, not just because I believe in disestablishment, but because I think it would be inappropriate. I share the view of the right hon. Member for Birkenhead (Mr Field)—that we may however want to take control of what happens at the other end of this building in deciding who is admitted to represent the Church of England as bishops. It has long been anomalous that in the House of Lords—the Lords itself is anomalous—one bloc has to be all-male. That seems inappropriate.

Government and Parliament need to offer their best offices to the Church of England so that the new proposal—which the bishops mercifully have today announced they will make for Synod next year—can receive their support and technical advice and therefore pass both the Synod and this place. The bishops need to know in advance—I pay tribute to other colleagues on the Ecclesiastical Committee—that what they come up with will not be tripped up in Parliament, and we need to know in advance that it is compatible with our principles of equality, of which colleagues have spoken around the House.

The majority of people who go to church in this country are women. The leadership that the country calls for must include the majority of people in Britain, who are women. I hope the Church has learnt its lesson. I have every confidence in the leadership of the Archbishop of Canterbury-designate, who is coming to meet us tomorrow. I hope that by this time next year we will be celebrating not just the change in the Church’s rules, but the beginning of a transformation that will embolden the Church, improve it and increase the effectiveness of the ministry of the Church to proclaim the gospel to everybody, which is best done by everybody who is capable of doing it.

Ugandan Asians

Debate between Simon Hughes and Peter Bottomley

Thursday 6th December 2012 Commons Chamber

[Simon Hughes (Bermondsey and Old Southwark) (LD)]

I am happy to do that, Mr Deputy Speaker. I shall make just a few short comments.

First, let me thank our hon. Friend the Member for North West Cambridgeshire (Mr Vara) for his timely and persistent attempts to secure the debate. He naturally wanted to ensure that it took take place, but the rest of us are happy to associate ourselves with his wish.

Although she has left the Chamber, I also want to pay tribute to the hon. Member for Slough (Fiona Mactaggart). She worked for the Joint Council for the Welfare of Immigrants for a long time, and did a very reputable and important job in that organisation. Her continuing commitment to the cause of immigrants to this country, and to others who have not come here but may wish to do so—and have a claim to do so—deserves to be put on record. She paid tribute to others, and I think that she deserves a tribute herself.

The backdrop to today’s debate is the legislation of the 1960s, which was not our country’s most glorious hour, and the mercifully much better response to that terrible “90 days” threat to an entire community, the entrepreneurial heartbeat of Uganda, in 1972. Thank God we responded as we did and other countries in the Commonwealth and elsewhere responded as they did, and thank God there were enlightened local authorities in Britain which, as was pointed out by the hon. Member for North West Cambridgeshire, were positive in their response.

It was not easy for the people who came here in 1972. The weather, as I recall, was grim, and, as we have been reminded, conditions were often grim as well. Those people had a very difficult start. Not only did they come with, literally, the clothes that they could take from their homes and the suitcases that they could pack—often with no finances, and with young children in tow—but they then went into pretty grim accommodation, which we provided in various parts of the country at short notice. The fact that their conditions were made much better was due solely to the wonderful volunteering spirit of members of the community who offered their help, as well as the work of those for whom it was a statutory duty.

[Sir Peter Bottomley]

On 15 August 2005 an article was published by Martin Wainwright, describing how our former colleague Richard Wainwright, who was Member of Parliament for Colne Valley, took in one of these families. That description gives life to what Members are saying today.

[Simon Hughes]

I knew that, and, as my hon. Friend would expect, I know Martin Wainwright well: he is Richard Wainwright’s son. Many others did the same.

My constituency has a proud association with Uganda, because King Freddie of Buganda settled there and made it his home, thanks to the generosity of, in particular, the Carr-Gomm family. It was Richard Carr-Gomm, a former Liberal MP for Rotherhithe, who set up the Carr-Gomm Society and the Abbeyfield Society. In what was, in those days, a very white Bermondsey, hospitality and recognition were given to King Freddie and his family, and that spirit has continued through the ages. What happened then changed the cultural mood of a community, transforming white docklands London into the wonderfully multicultural community that we have now.

Defamation Bill

Debate between Simon Hughes and Peter Bottomley

Wednesday 12th September 2012 Commons Chamber

[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.

--- Later in debate ---

[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.