Defamation Bill

Stephen Phillips Excerpts

Tuesday 12th June 2012 Commons Chamber

[Stephen Phillips (Sleaford and North Hykeham) (Con)]

Thank you, Mr Deputy Speaker and hon. Members on both sides of the House for that very warm welcome.

I rise to speak, having had the enormous privilege of sitting among significantly more distinguished colleagues from this House, including the right hon. Member for Tottenham (Mr Lammy), and indeed from the other place, on the Joint Committee that considered this Bill when it was subjected to pre-legislative scrutiny during the last Session. Let me indicate from the outset in a non-controversial way that the Bill enjoys my support as it enjoys the support of the official Opposition and of all parties.

Like other hon. Members, I have little doubt that the Bill is capable of being improved in Committee, where it will no doubt be debated appropriately, properly and, I hope, at length, particularly in respect of certain Joint Committee recommendations that the Government have not adopted. As it stands, the Bill supplies some, if not all, the certainty required regarding the deficiencies in our libel and slander law previously identified by the noble Lord Lester and others. For that reason, if for no other, I welcome the Bill’s support across the House, as I welcome the Opposition’s decision not to divide the House on the Second Reading of a Bill that evidently does and certainly should enjoy cross-party support.

This Bill is perhaps not the most eye-catching piece of legislation in this Session and perhaps not even the most eye-catching piece of reform in the arena of the ongoing debate on the balance that needs to be struck between free speech on the one hand and other fundamental rights on the other. For reasons that I will attempt to explain in the course of my remarks, it is none the less important.

Let me begin with the problems—not merely those inherent in the existing law, but those of a more fundamental nature concerning any law that seeks to address defamation, whether in this jurisdiction or elsewhere. The first of those problems is naturally the fact that the mere existence of a law of defamation is an intrusion into the area of free speech. Not one Member of this House can possibly begin to doubt the importance of free speech both as a principle of general application in any mature society and, more important, for the health of our democracy and our democratic institutions.

The powerful need to be held to account. They need to be answerable to those in whose name they seek to exercise power. They need to be exposed to hypocrisy or inconsistency, where necessary. Most certainly, as we all know they need to have the balloon of pomposity associated with their position punctured from time to time, perhaps even frequently, and without remorse. That is the nature of free speech. As I say, surely no one can doubt its importance.

But there are other important rights that need to be addressed in a civilised society—even if, on this point at least, I disagree with my hon. Friend the Member for South Swindon (Mr Buckland) that there is no hierarchy of rights and that there ought not to be. The right to a true reputation is particularly important to well-being, given the importance attributed to character in human affairs. The right of those who have not opened up their private lives to scrutiny to keep their affairs private is equally important. That is a right that used more ordinarily to be respected without the need for intervention of the law, but recent events and recent experiences point to those in the media no longer being able to respect that without appropriate restraints. Finally, there is a right not much talked about thus far in our debate—the right to redress, speedily and efficiently, when either of the rights I have already mentioned is dealt a blow from which in an age of immediate global communication neither may recover unless effective solutions to set the record straight are also available.

What the Bill is designed to achieve, as the preamble tells us, is to amend the law of defamation. In so doing, I understand it to be the Government’s aim—it was certainly the aim of the Joint Committee on which I sat—not only to balance the competing rights to which I have drawn attention, but to bring the law more into line with the world in which we now live. In that regard, the potent mechanism of the common law, able as it is to develop and deal with new situations, is not always enough. Occasionally, as in this area, development can run behind the times because of the lengthy processes associated with litigation and as a result of the disincentive afforded by cost to litigants who find themselves in novel situations. When that happens, it is for Parliament to act, triggered where appropriate by a Government’s legislative programme. That is necessary because it is not always the case that we can outsource the change that the common law might deliver, which would require litigants to dip into their own pockets to seek the intervention of the courts to adapt the law to their needs.

That, as I perceive it, is the position in which we find ourselves in relation to the law of defamation. The genuine and general support that Lord Lester’s Bill enjoyed both within and without Parliament demonstrated precisely that. Lord Lester and those who assisted him are to be commended for their initial efforts in this area in the last Parliament, even if they did not bear fruit. This Government, I have to say, are to be commended for having taken forward that work, having established a distinguished Committee—personal exceptions apart—to consider the matter, and having now brought forward appropriate legislation to address the issues in an area that is, as I have already indicated, unlikely perhaps to attract either headlines or even much credit.

[Amber Rudd]

We have heard much about this Committee and its various members, including my hon. and learned Friend. Is it correct that the Committee was unified on most of these points? It appears that the House is unified on the Bill, but did the Committee find itself unified on its key points?

[Stephen Phillips]

I am extremely grateful to my hon. Friend for her intervention. My recollection—it is only that—is that the Committee was unanimous on almost all points. I think there was one division—and one only—on the final report; I see my hon. Friend the Member for Cambridge (Dr Huppert) nodding. Unlike with the Joint Committee on Privacy and Injunctions, on which my hon. Friend the Member for South Swindon sat, there is considerably more cross-party agreement in this area.

The Bill of course comes at an interesting and even opportune time, as, indeed, we are all aware. A mile or so down the road—a little less far than the hon. Member for Bishop Auckland (Helen Goodman) suggested—Lord Justice Leveson is sitting in a far more high-profile environment, examining the culture, practices and ethics of the media. The legitimacy and desirability of what an untrammelled free press has recently been up to, for which we as politicians bear some measure of the blame, has rightly been called into question by recent events, which few can have viewed with anything other than horror and disgust.

As we have heard in this debate, another Joint Select Committee of this Parliament in the previous Session, on which my hon. Friend the Member for South Swindon sat, has now reported to both Houses on the subject of privacy and the use of injunctions. New technologies have thrown up new challenges in a number of areas. That they are being addressed piecemeal, although not entirely desirable, as hon. Members have indicated in their contributions, is understandable. That they are being addressed at all is a matter for congratulation, I venture to suggest, for all concerned. Where precisely we will find ourselves at the end of the process is no doubt a matter of debate, but the overall aim is clear: to preserve free speech while respecting other competing rights and the responsibilities that each of those rights entails. For my part, I merely add that this is unlikely to be the end of the process. As the report of the Joint Select Committee on which I sat indicated, there is still work to be done on the issue of parliamentary privilege, just as there remain loose ends to be tied up in relation to those parts of the common law of blasphemy and sedition which remain part of our law.

Thus far, I have dealt in generalities, but the greater raft of problems—at least in terms of number, if not seriousness—relates to the specific difficulties encountered with the mechanistic aspects of the law of defamation. The second issue with which it is necessary to grapple in any reform in this area is, therefore, the cost that is associated with defamation litigation and, when necessary, court proceedings. The evidence taken by the Committee demonstrated that those costs were prohibitive to the defence of reputation by the majority; but, even more important, they are inimical to free speech itself.

Few individuals, save perhaps the very brave such as Dr Ben Goldacre, have been prepared to put their lives and fortunes at stake and raise their right to express the truth above their own financial security and that of their families. As anyone who does not enjoy the luxury of parliamentary privilege is all too well aware, the powerful have deep pockets and frightening lawyers with heavy notepaper and even heavier language. The costs associated with defamation not only prevent ordinary people from defending reputations that are so easily damaged in an age in which anonymous posting online can wrongly create a rapist or a paedophile at the click of a mouse, but prevent public figures who lie, cheat and steal from being revealed for what they are.

How, one is driven to ask perhaps all too often—even if rhetorically—have the individuals who have been involved in many of the scandals that we have seen in the past got away with it for so long? The truth, frequently, is that they had, and continue to have, good lawyers who are adroit at putting those who might otherwise hold them to account through the preventive mills of cost and stress. Any reform of the law of defamation needs not only to take account of that, but to address cost at each and every turn. Yes, legitimate reputation is important in a civilised society, as is the prevention of false accusations which damage it; but such protections ought not to be purchased through prevention of the exposure of that which ought to be in the public domain, something which is perhaps all too often a result of the chilling effects associated with any defamation litigation. Indeed, as the Committee concluded in its report,

“the reduction in the extremely high costs of defamation proceedings is essential to limiting the chilling effect and making access to legal redress a possibility for the ordinary citizen.”

This is, none the less, an appropriate moment at which to pause and recognise a fact that—given the evidence taken by the Committee and the views of many commentators—may be obvious, at least to practitioners: the fact that the true problem with the costs associated with defamation proceedings is driven not by substantive rules but by procedure. Any significant reform to reduce cost is therefore not something that can be exclusively, or even primarily, driven by Parliament. As has been pointed out by Members on both sides of the House today, what we need are reforms of procedure to provide new and effective procedural mechanisms that will level the playing field as between those with deep pockets and those without them.

Much, in general terms, was achieved in that respect by the reforms of civil procedure for which we are eternally in the debt of Lord Woolf, but I should like the Minister to state categorically that the Government, in the person of the Lord Chancellor, will instruct the Civil Procedure Rule Committee—if, indeed, they have not already done so—to review the civil procedure rules relating to defamation proceedings, as well as the pre-action protocol, in an attempt specifically to strengthen the parts of the overriding objective that are directed to addressing the cost associated with litigation and the necessity of ensuring equality of arms between litigants.

The third difficulty, which both the Committee and the Government have sought to address, is one that I have already mentioned: the difficulty posed by technological and other advances. The last statutory intervention in that regard was made in 1996, under the Administration of Sir John Major, mention of whom is, perhaps, opportune today. Even I can remember vaguely what the world was like then, and it was different. For a start, there was no Human Rights Act—legislation on which, as many know, I have my own strong views, but which, in terms of general principle, has had a significant effect on the law of defamation by recognising privacy rights that have been used as a back door to circumvent free speech protections developed in the arena of defamation over centuries. That affords yet another reason why the 1996 Act is, at the very least—I put it neutrally in deference to my hon. Friends—problematic. We had human rights in this country before the Act was passed, but we did not recognise them in the way that we have now, which has enabled judge-made law in one area to trespass on the will of successive Parliaments and higher courts in others.

What is even more important in the present context, however, is the fact that when Parliament last considered this issue in 1996, the internet was in its infancy. Nothing was known of how matters would develop.

[Heather Wheeler (South Derbyshire) (Con)]

Given that technology is moving so fast, as others have pointed out, does my hon. and learned Friend think that, like anti-terrorism legislation, this legislation should be reviewed and renewed more often than annually?

[Stephen Phillips]

I should like to say that I am grateful to my hon. Friend, who has put me on the spot with a point that I do not think that the Government would like. I suspect that whatever legislation is in place, we will need to look at it from time to time to ensure that it correctly balances the right to free speech with the right to reputation in the light of the technological developments that will take place over time. How the Minister and his colleagues will want to do that, and whether it will be dealt with in the winding-up speech, is a matter for them. However, I see the force of the point that has been made by my hon. Friend and, indeed, other Members.

[Mr Buckland]

Might not a possible solution be for the Justice Committee to conduct some post-legislative scrutiny of the Act a couple of years down the line, as is currently happening with the Freedom of Information Act?

[Stephen Phillips]

What a fine idea. I am sure that my hon. Friend the Minister will be able to tell us whether that is the Government’s preferred solution—as, given the quality of my hon. Friend’s intervention, it may well be.

In 1996, Larry Page and Sergey Brin were still at Stanford university. They had met only the previous year, and Google was still two years away from being incorporated. For what it is worth, Mark Zuckerberg was 12 years old at the time. If any Members foresaw what the internet would do for the instantaneous communications that we now have, they were entirely silent in the debates that led to what became the Defamation Act 1996. I know that, because I have read the reports of those debates. We, however, are in a different position. We have the benefit of subsequent events, and—with the possible exception of my right hon. Friend the Member for Louth and Horncastle (Sir Peter Tapsell)—not one of us can now contemplate life without the technologies on which we rely for our daily existence. Perhaps it was ever thus with technological change, but, by the same token, change brings specific issues that must be addressed.

Chief among those issues here has been the ability not only to create defamatory material that is instantly accessible to millions of people with internet access, but to disseminate that material anonymously. Even this week, the common law has demonstrated the flexibility of existing mechanisms to assist those who are determined to protect themselves, but, as always, that has come at a cost. I believe that when Parliament intervenes in an area such as that addressed by the Bill, we must do what we can to help, and the Bill does that—although, like my hon. Friend the Member for Mid Bedfordshire (Nadine Dorries), I have not the slightest doubt that it is another area that we will have little option but to address again, certainly within the next decade, as user-driven change in internet and other technological architectures develops further.

The scale of the problems—the need to balance free speech against other competing rights, the need to address the costs associated with striking that balance correctly, and the need to deal with technological and other changes—is vast. In those circumstances it might well be thought that ambitious reform was called for, but, again, that sort of understandable reaction must be balanced with the caution that good legislators enjoy, and which has been the hallmark of the House from time immemorial. Too frequently, ambitious legislative change reveals itself not only to have unintended consequences, but to stultify the development of appropriate solutions by the courts to problems of which no one has yet dreamt. That point was made earlier by my hon. Friend the Member for South Swindon. Incremental change has been the hallmark of good legislation in this and other areas, and the Bill is rightly no exception. The Government are to be commended on that.

I want to deal with three specific aspects of the Bill: the provisions that seek to codify existing substantive law in a manner that is readily accessible and understandable to the layman, the provisions that deal with the defences for which free speech calls in a modern society, and the provisions that seek to bring reputational protection within the reach of those who have not the funds with which to instruct expensive lawyers.

As for the first—the attempted codification of parts of the existing common law as it has now developed, particularly in recent years—my colleagues who sat on the Joint Committee with me are aware that I and others, notably Lord Morris, had our reservations. The difficulty Parliament faces in this area is that our attempts to reduce the nuances of the common law to writing are on occasion ineffectual. The Marine Insurance Act 1906 was a codifying Act prepared by Sir Mackenzie Dalzell Chalmers when he was permanent under secretary at the Home Office. He was subsequently chief justice of Gibraltar. As the draftsman of both the Bills of Exchange Act 1882 and the Sale of Goods Act 1893, if anyone could achieve the codification of four centuries of common law, he was the man. Yet subsequent events tell us that he got things wrong, such as the test in relation to loss, which now differs between marine and non-marine insurance. Can he be criticised? No, but the experience teaches a valuable lesson: that codification is not always successful in reflecting either the existing law or its nuances or flexibility.

Attempted codification can, through drafting error, lead to uncertainty, change and stultification, all of which can lead to increased costs for litigants. However, I am persuaded that it is desirable in clauses 1 and 2—as well as in part of clause 3—only for two reasons: first, because the codification is modest in scope; and, secondly, because, as Lord Mawhinney, who chaired our proceedings, persuaded those of us who were sceptical about either the necessity or desirability of pursuing this path, if the protection of the law of defamation is to be made more accessible, it must be written down as simply as possible in a manner that most can understand. That point was made well by the right hon. Member for Tottenham. While I had reservations, therefore, I am now persuaded that these clauses have their rightful place in the Bill. Better and more erudite minds than mine will have addressed the question of whether or not they do what they are supposed to do. If they do not, it will not be for want of trying.

The second area I wish to discuss is the defences with which the Bill deals. One clause at least—clause 3—involves a slight amendment to the existing defence of fair or, as the Supreme Court seems to have taken upon itself to rename it, honest comment. We are now renaming “honest opinion”. It is my understanding that the change is minor—I would be grateful for confirmation of that from the Minister—and merely removes the necessity for it to be shown that the matter on which the opinion is expressed is in the public interest. If so, there seems to have been little justification for any such limitation in the first place. Any such limitation between public interest and private interest is unjustifiable and unprincipled.

That step is therefore to be welcomed, as is the new defence—in so far as it is a new defence—based upon, or clarifying, Reynolds v. Times Newspapers: responsible publication on a matter of public interest. That does much to clarify what would no doubt have been clarified by the common law in due course, but at vast expense and inconvenience to litigants and those defamed.

The third area on which I want to touch is those parts of the Bill that I perceive to be addressing substantive matters that affect cost and accessibility. Among those is the removal of the presumption of jury trial. In no other significant area of civil litigation has jury trial been retained, at least in practical terms, and the evidence that the Committee received appears to demonstrate that, even in the field of defamation, trials have increasingly been conducted before judges alone. However, the threat of jury trial—with the processes it involves and the reluctance of judges to intervene early to remove matters from a jury, with the consequent prolongation of litigation and considerable increase in cost—has long exacerbated the chilling effects of the existing law, and many of us are only just persuaded that it should even be possible to retain a discretion to permit a jury in a libel or slander case.

[Paul Farrelly]

I agree with what is being said. I have inquired into these matters for several years. The publishing industry and the newspapers have long pleaded for an early resolution of meaning, and the retention of juries is inimical to that. It plays into the hands of those litigants who have no interest in a resolution because their intention is to use force of money and arms to prolong the agony as long as possible.

[Stephen Phillips]

The hon. Gentleman makes a valid and compelling point, and I agree with him. I do not sit on civil cases, but I do still sit as a recorder for a few weeks each year. When judges know there is going to be a jury, they are reluctant to take anything away from the jury because it is supposed to be determining the factual issues. In order to reduce the costs associated with litigation, in most defamation cases there should be no jury, just as there is no longer a jury in other cases heard in the Queen’s bench division, whereas a century or so ago there was the discretion to order one, and, indeed, one was frequently ordered, with all the consequent increase in cost and delay.

The third area on which I want to touch is the one I consider to be the most important aspect of the Bill, clarifying or codifying as it may be: the requirement that in order to be actionable a statement must cause, or be likely to cause, serious harm to the reputation of the claimant. There is, of course, once again every indication that this is the direction in which the common law was moving in any event, but here, in an age when trivial statements are capable of being published immediately, we, as a Parliament, can give our sanction to this worthwhile development and enshrine it once and for all as part of our law. It will lead to fewer cases—certainly fewer trivial cases—being brought forward and therefore to a reduction in costs. It is consistent with the balance that I believe must be struck between free speech and the protection of reputation; it is consistent with the need to render the law accessible in a written form to ordinary individuals not versed in the intricacies of precedent; and it is consistent with enabling courts to act at an early stage in order actively to manage cases and to drive settlement and compromise in those which are serious and require early redress. Like the rest of this Bill, in my judgment—which I think the House shares—these provisions are to be welcomed. They deserve, and should command, our entire and full support.