Skip to main content

Defamation Bill

Volume 550: debated on Wednesday 12 September 2012

Consideration of Bill, as amended in the Public Bill Committee

New Clause 1

Order for removal of defamatory statement from website

‘(1) Where a court gives judgment for the claimant in an action for defamation the court may order the operator of a website on which the defamatory statement is posted to remove the statement.

(2) Subsection (1) does not affect the power of the court apart from that subsection.’.—(Jeremy Wright.)

Brought up, and read the First time.

With this it will be convenient to discuss the following:

Amendment 7, page 3, line 22, leave out clause 5.

Government amendments 5 and 6.

New clause 1 deals with an issue raised in Committee by the hon. Member for Newcastle-under-Lyme (Paul Farrelly). He was concerned that circumstances could arise in which a claimant who had successfully brought an action against the author of defamatory material online could be left unable to secure the removal of the material. That situation might arise as a result of the fact that an author might not always be in a position to remove material that had been found to be defamatory from a website, while the new defence in clause 5 might prevent the website operator from being required to do so. The Government indicated in Committee that we would consider whether anything further was needed to address such situations.

We have concluded that although such situations are likely to be rare, it would be appropriate to include a provision in the Bill to ensure that claimants in such cases do not experience any difficulty in securing the removal of material that has been found to be defamatory. New clause 1 therefore provides that where a court gives a judgment for the claimant in a defamation action, it may order the operator of a website on which the defamatory statement is posted to remove that statement. Such an order could be made either during proceedings or on a separate application. New clause 1(2) ensures that the provision does not have any wider effect on the inherent jurisdiction of the High Court.

In speaking to new clause 1, it may be helpful if I speak also to Government amendments 5 and 6, and to amendment 7, which has been tabled by the hon. Member for Stoke-on-Trent South (Robert Flello). Government amendment 5 relates to the circumstances in which a claimant might defeat the defence set out in clause 5. Such circumstances are set out in clause 5(3), paragraphs (b) and (c) of which require a claimant to show that he gave the operator a notice of complaint in relation to the statement in question and that the operator failed to respond to it in accordance with provisions to be set out in regulations. In addition, paragraph (a) requires that a claimant must show that it was not possible for him to identify the person who posted the statement. Amendment 5 clarifies what is meant in paragraph (a) by the word “identify”. Again, concerns were raised in Committee by the hon. Members for Newcastle-under-Lyme and for Stoke-on-Trent South that the meaning of the word “identify” was unclear and that possible difficulties in obtaining the true identity of the author—for example, when he was using a pseudonym—might mean that the claimant was left without a remedy. In the light of those concerns, we undertook to consider the position further.

Amendment 5 clarifies that, for the purposes of subsection 3(a), it is possible for a claimant to “identify” a person only if they have sufficient information to bring proceedings against that person. The amendment will ensure that claimants are not left in limbo, unable to bring proceedings against an author because they lack information that would enable them to do so, but also unable to defeat the defence of the website operator if the operator failed to take steps to assist. We consider that that will ensure that the new process operates fairly and effectively and strikes an appropriate balance between the interests of claimants and those of website operators.

Amendment 6 makes it clear that if the website operator moderates material posted by third-party users on his site, that fact alone will not defeat the defence that is available under clause 5 to a website operator who can show that he did not post the statement complained about on his website. We share the view, expressed by the Joint Committee on the draft Bill and Members of this House, that responsible moderation of content should be encouraged. We have listened to the concerns raised in Committee and consider that it would be helpful to include a provision giving reassurance on that point. Amendment 6 therefore provides that the defence under clause 5 is not defeated by reason only of the fact that the website operator moderates the statements posted on the site by others.

There might of course be situations when an operator goes too far. They might, for example, moderate content on the website so much as to change the meaning of what the author had posted in a way that makes it defamatory or increases the seriousness of the defamation. In such cases, the courts will have to consider whether the operator’s actions were sufficient for them to be regarded as having posted the material.

We have considered carefully the merits of seeking to prescribe the particular circumstances in which moderation might or might not lead to the operator being regarded as having posted the material. Precisely when an operator should become responsible for a statement they moderate will depend heavily on the individual circumstances of the case. On balance, we think it is right that the courts should have flexibility in making that assessment. We consider that these are sensible and helpful amendments that will aid the effective operation of the new process under clause 5.

Amendment 7, by contrast, would remove clause 5 from the Bill. I will of course listen carefully to what the hon. Member for Bishop Auckland (Helen Goodman) has to say on the matter, but I am sorry to say that we do not consider removing the clause to be an appropriate move. The current law in this area is unsatisfactory and has created a situation in which website operators, to avoid any risk of being sued, choose to remove material from sites they host on receipt of a complaint, whether or not the material is actually defamatory. That chills free speech.

However, we recognise that when people are defamed online they need to be able to take prompt and effective action to protect their reputation. Including clause 5 in the Bill will mean that the author of a statement is given an opportunity to defend it, rather than it simply being taken down on receipt of a complaint. Should the need arise, complainants will be able to bring proceedings against those truly responsible for statements.

What comment will the Minister make on the fact that Wikipedia publishes biographies of people that are then regularly amended to include untrue, defamatory and unpleasant language? Does he think that Wikipedia should inform those people whose biographies have been re-written in such a way that causes them damage and then allow a truthful statement to be made? At the moment, Wikipedia is an absolute disgrace, allowing the British National party, fascists, anti-Semites and other extremists to alter people’s personal entries.

I understand exactly what the right hon. Gentleman is saying, but he will appreciate that the limits of the Bill are quite constrained, and it is difficult within the confines of our discussion on Report to cover all the issues he raises. What I will say is that clause 5 attempts to strike a balance between protecting freedom of speech on the internet, which he and I are both in favour of, as I am sure is the whole House, and ensuring that there is a quick and effective method by which those who, for example, have their biographies on Wikipedia amended can address the wrong that is done to them. That is the balance we are attempting to strike and that we believe is struck by clause 5 as it stands, which is why I am afraid we cannot support amendment 7. We stand by clause 5 but believe that it can be improved, which is why we ask the House not only to reject amendment 7, but to accept amendments 5 and 6 and new clause 1.

I am pleased to have the opportunity to speak to Government new clause 1, Government amendments 5 and 6 and our amendment 7. Like the Minister, I will speak to them in that order. I would like to begin by welcoming the new ministerial team. It is great to see them in their places. We in the Opposition hope that they will have a more flexible approach—it already looks as though they will. I pay particular tribute to the Under-Secretary of State for Justice, the hon. Member for Maidstone and The Weald (Mrs Grant). She is only the second black woman to speak from the Government Dispatch Box, and it is a great credit to her that she has achieved that.

New clause 1 will enable the court to order a website operator to remove material if it has been found to be defamatory. That follows amendment 44, which was tabled by my hon. Friend the Member for Newcastle-under-Lyme (Paul Farrelly) in Committee. It covers the point where website operators behave in an irresponsible manner and authors cannot remove the material. I must say that some cold water was poured on the proposal by the ministerial team at the time, who were very reluctant to consider it, but, lo and behold, when we saw the notice of amendments on Monday and the Under-Secretary of State’s letter on Tuesday, we found that the Government have thought again and tabled the new clause. We think that is sensible and in line with the issues we raised in Committee, so we support the change.

Amendment 5 is about what identifying the author actually means. It states:

‘For the purposes of subsection (3)(a), it is possible for a claimant to “identify” a person only if the claimant has sufficient information to bring proceedings against the person.’

That follows the spirit, if not the precise wording, of amendment 18, tabled by my hon. Friend the Member for Stoke-on-Trent South (Robert Flello), and amendment 42, tabled by my hon. Friend the Member for Newcastle-under-Lyme, in Committee. The purpose of both amendments was to clarify the situation in which the defence is defeated because the claimant could not identify the author. Again, the Minister at the time, the hon. Member for Huntingdon (Mr Djanogly), said that he would consider it but was not very promising. He said that amendment 42

“would effectively require the website operator to provide the claimant with information that they are unlikely to hold, and that they would, in many cases, find difficult to obtain. The amendment would defeat the simple system that the Government intend to establish”.

On amendment 20, he said that the Government did not consider the processes set out in the Opposition’s amendments to be appropriate. He said:

“The aim of clause 5 is to remove the threat of liability from website operators provided that they assist claimants to identify an author of allegedly defamatory material. That process, which will be set out in regulations, will be quick, clear and practical.”––[Official Report, Defamation Public Bill Committee, 21 June 2012; c. 108-111.]

He went on to say that the Opposition amendments cut across the desire for a simple process.

We are very pleased to see Government amendment 5, which responds to the concerns we raised in Committee and it will ensure that claimants are not left in a position where they have insufficient information to take effective action against an author and would be prevented from defeating the web operator’s defence. We say amen to this amendment. However, I have some questions about amendment 5 and its coverage, which I hope the Minister will be able to clarify in his response. The first is the difficult issue of jurisdictions.

There are two aspects to jurisdiction and we discussed them in Committee. The first is the simple case in which the claimant is a UK citizen and the author is identified but lives in a foreign jurisdiction. In that instance, it might be fairly straightforward to bring proceedings in some foreign jurisdictions—if the author were French, for example, it would be a fairly straightforward matter. One can think of other places, however, such as the former Soviet states or some parts of Africa, where it would be extremely difficult to bring proceedings. The person might be properly identified, but because of the jurisdictional difficulties, it would be hard to bring proceedings. Does the Minister think this international problem is resolved? I suspect that it is not, so the Minister needs to tell us whether it is his intention to crack it or whether he thinks it is too difficult to handle here. I hope we will hear something about what can be done about this international problem.

The second type of international problem is where we have a sort of dog-legging situation: the claimant is in this country, the website operator is abroad, the author is in this country and the website operator is not playing by the rules. I would like the Minister to respond to this problem.

Amendment 6 deals with the “defence is not defeated through moderation” theme. It relates to amendment 17 that was moved in Committee by my hon. Friend the Member for Stoke-on-Trent South. The Minister responded to what we proposed by saying that the defence was not affected by having a policy of amending content in terms of moderation. This is an important issue for raising the tone on the web. I have had conversations with local newspaper editors who say that they do not want to moderate abusive language because they have been told that, as the law stands, they then become liable for defamatory statements. Obviously, if we want people to use the web, we want the tone of debate on it to be civilised and reasonable. It is important that moderation that neither enhances a defamatory statement nor removes a defence against such a statement be allowed. To this extent, we believe that amendment 6 is a good one. We are pleased that the Minister has brought it forward; it was backed by the Joint Committee on the draft Bill, too. Of course, the former Minister, the hon. Member for Huntingdon, said that the amendment was not necessary, but I am pleased that the new team sees that it is.

I deal now with amendment 7, tabled by my hon. Friend the Member for Stoke-on-Trent South. I do not want anyone to think that, having accepted the Government’s improvements to clause 5, which is an extremely weak part of the Bill, we are somehow being churlish in wanting to debate leaving out that clause. When we say we would like to see clause 5 left out, we do not mean that the issue of web operators and defamation on the web should not be addressed. Obviously, we mean that we need a more thorough reform than has been offered by the changes announced by the Minister this lunch time. Let me spell out to the Minister in a little more detail what we see as the remaining problems with clause 5. I shall set out our concerns and I hope that he will take them into account and consider looking further at clause 5—if not today, then when the legislation goes to the other place, which is more likely.

First, we have not been shown the regulations in draft. The ministerial team has repeatedly said that this is a very complex area—we agree—and that it wanted a simple approach set out in the Bill, with the material fleshed out in regulations. When a Department takes that view, however, it is normal to bring forward the regulations. We made that point in Committee—almost three months ago—yet we have still not seen the regulations. I know that the Ministers have been in their jobs for only a week, but their predecessors and officials have known about this problem for three months. It is unacceptable that we still have not had sight of these regulations. We requested that the regulations be approved through the affirmative rather than the negative resolution process, but that change has not been accepted either.

The former Minister, the hon. Member for Huntingdon, wrote to the Committee on 13 June, attaching a note of proposed procedure under clause 5. We raised our particular worries about the drafting at the time—I raise them again now—as it is not as full as the regulations would be. The note states:

“Website operators will be encouraged to set up and publicise the designated email address”

for the purpose of complaints. We have just discussed irresponsible website operators, and we feel that website operators must be “required” to set up and publicise a designated e-mail address.

As to the contents of the notice of complaint, we come to the issue of why a statement is considered to be defamatory. The note says that authors need to appreciate why the words are “inaccurate” or “damaging”—they are fine and not controversial—but also mentions “insupportable”. We have not had any explanation of the meaning of “insupportable”; it is a completely new concept. We want to know whether this is the wording that will appear in the regulations; we must have some explanation.

The draft note sets out three possible scenarios. The third scenario is that in which the author replies and refuses to agree to the removal of the material. Two paragraphs are of particular concern. The note says:

“If the author indicates that he does not wish his identity and contact details to be released then the website operator must contact the complainant… to inform him that the author refuses to agree to removal of the material and has requested that his contact details are not released.

If the complainant wishes to take further action he will need to seek a court order for the website operator to release the identity and contact details that it has in relation to the author.”

I put it to the Minister that his amendment 5 does not resolve the problem of authors refusing to hand over their identities. In such circumstances, a complainant will be required to take out a court order—I understand that it is called a Norwich Pharamcal—to establish who the author is. That will require the complainant to spend a lot of money, although the Minister’s aim is to introduce a cheap and easy process that can be used by any member of the public. We still have worries about situation c), and we fear that if they are not properly addressed there is a risk that many authors will take advantage of that loophole to avoid their responsibilities. Having met members of the Hacked Off campaign, I understand that they have devised some wording which they think would resolve the problem. I hope that the Minister has read it, and will consider incorporating it at a later stage.

Because we have not seen the regulations, we do not know what time limits are envisaged. Everyone agrees that there must be time limits, and that things should not drag on for months and months; I think it reasonable for us to want to know what those time limits will be. The fact that the notes circulated by the former Minister do not give a proper definition of “website operators” also makes the position very unclear.

There are other problems with clause 5 that do not relate to the notes. For example, it does not appear to be in line with the e-commerce directive. In Committee my hon. Friend the Member for Stoke-on-Trent South tabled amendment 21, which drew attention to that. Under the directive, website operators are not liable unless they know that a statement is unlawful and not simply defamatory: apparently that is covered by regulations 17, 19 and 22. The lack of consistency with the directive will make the law unclear. The object of presenting legislation to the House is to clarify and improve the law, but it seems that a new source of confusion is being created, and I should like to hear what the Minister has to say about that.

One of the recommendations of the Joint Committee, which did some excellent work, was that a notice of complaint should be put next to a posting that has been complained about. I understand that the Minister has still not tackled that suggestion. I know that those in the industry say that it would be technically difficult to implement, but they would say that, wouldn’t they? Of course it would cost them some money, but, as the hon. Member for Devizes (Claire Perry) keeps reminding the House, the internet service providers have an income of £3 billion a year, and I think we can expect them to spend money on setting up facilities that will give us the kind of web that we all want.

There is a general issue relating to anonymity and the web with which the Bill does not deal. Many of the problems that we experience with the web are driven by the bad behaviour in which people feel more free to engage because they are protected by anonymity. Ministers need to think about that again, because at present the Government have no properly co-ordinated approach. The Ministry of Justice is trying to deal with the issue of defamation, the Home Office is trying to deal with the issue of the interception of communications, and the Department for Culture, Media and Sport is examining the economic benefits of the net. We need much more co-ordination. Labour has a cross-departmental team to deal with the Bill, because we believe in a strategic approach to internet issues.

As I said earlier, I think that there is still a major problem with external jurisdictions, and I hope that the Minister will say something about it, because the Bill is weak on that front. We gave many examples of the problem in Committee, although I will not repeat them now because I do not want to take up too much time.

The Joint Committee recommended that the Department should produce guidance that was clear and simple to use. There is no clarity on clause 5. There is no guidance, there are no regulations, and the Government are not taking a strategic approach. For all those reasons, we will press amendment 7 to a vote later this afternoon.

Let me begin by welcoming my colleagues who have just joined the team—the new Under-Secretaries of State for Justice, my hon. Friends the Members for Kenilworth and Southam (Jeremy Wright) and for Maidstone and The Weald (Mrs Grant). I know my hon. Friend the Member for Maidstone and The Weald the better of the two, and have great confidence in her. If her colleague is as competent as she is, we shall be in good hands in the days ahead. I also welcome the new Secretary of State, who I expect will join us later. I have already had the welcome opportunity of holding a brief conversation with him about the Bill, and I look forward to a more general conversation with him about it after the completion of its House of Commons stages later today.

I have taken over responsibility for the Bill from my right hon. Friend the Member for Carshalton and Wallington (Tom Brake), who has joined the Government as Deputy Leader of the House. I congratulate him on that. I shall be carrying out a holding operation today without other support, but we will bolster our troops when the Bill goes to the other place.

Our general position is that it is absolutely right to reform the law. These new clauses and amendments relate to a matter of great significance out there in the real world. As was pointed out by the hon. Member for Bishop Auckland (Helen Goodman), this is real live legislation for 2012 and beyond. Bills, and the drafting of Bills, may appear to be somewhat esoteric, but what is done with websites, how people are held to account for what is said, how the transmission of information is managed, and how inappropriately transmitted information is controlled are important issues.

The right hon. Member for Rotherham (Mr MacShane) also raised the general issue of appropriateness. Items can appear on websites overnight, for instance on Wikipedia, and catching up with them, correcting them and ensuring that information is accurate is an extraordinarily difficult job. It may be thought that people’s reputations are not hugely adversely affected by something that may be there one day and gone the next, but that is clearly not the reality of the world. A message that has appeared on Twitter can subsequently be removed, but by that stage—I am afraid that I cannot quote “A Midsummer Night’s Dream” accurately—it will, like Puck, have gone around the world before anyone has had a chance to do anything about it.

I welcome the Government new clause and the two new Government amendments. All the matters with which they deal were discussed in Committee. It was decided that new clause 1 was necessary, and it is a welcome proposed addition to the Bill. It may need to be tidied up further, and I am sure the Government do not pretend that this will definitely be the end of the conversation.

We debated the issues raised in Government amendment 5 in Committee in June. It was requested that something be done, and they have put forward a proposal.

The Liberal Democrats have for a long time been calling for the sort of change that is made by Government amendment 6, because comment moderation is clearly a good thing and should not be discouraged by a risk of liability to an author who is trying to moderate and improve an intolerant comment. That may need additional work, too, however.

The Bill has returned to the House earlier than we expected because of the lacuna in the Government programme caused by a larger Bill—that on House of Lords reform—having been taken out and parked in the sidings for while. As a result, all of us—including the Department and the new ministerial team—have been caught short, and I therefore accept that the right place to deal with a lot of these issues will be the House of Lords, which is unusual for me because it is my general view that any changes to legislation that originate in the House of Commons should be undertaken by elected representatives in the Commons. We should leave the Lords to sweep up and do other things, rather than rely on it as the place to make substantive changes. I accept that this will be a slightly unusual Bill, therefore, and I will willingly work with colleagues in other parties to get it into the best possible shape.

I do not think Labour amendment 7 offers the right approach. We should not remove clause 5. The Government amendments to the clause are welcome and, as the hon. Member for Bishop Auckland half-conceded, removing the clause would be inappropriate as we are adding two amendments and a new clause to improve its provisions. As I have said outside this place to shadow Ministers, however, I am sure more work will need to be done. So long as we all share that attitude, I trust we will be able to work constructively.

If votes are called, I will invite my party colleagues to support the Government on their new clause and the two amendments and to resist the Labour amendment, in the knowledge that Ministers, shadow Ministers and other Members are willing to work collaboratively together and with those outside this place who have taken a good and informed interest in helping us get the law right. There is a strong mood in this place and in the country in favour of reform to the law on defamation, as it has clearly fallen into disrepute. I pay tribute to those who have done all the work so far, and I support the Government, who are clearly in a constructive mood to improve the Bill.

May I both welcome the new ministerial team and put on record my sadness that the hon. Member for Huntingdon (Mr Djanogly) will not pilot the Bill through? He did a lot of work on the Bill. He said he would reconsider certain details in respect of websites, and the Government have brought forward amendments, which I welcome.

New clause 1 seeks to address a perverse and, no doubt, unintended anomaly, whereby so long as a website operator complies with all the requirements and delivers up the identity of the poster, they can continue to publish content on the site. I pointed out that anomaly in Committee, using the example of a political website that, having complied, continued to run defamatory material about rivals for the sheer mischief of it. This is a live issue.

I have one principal question. The new clause seems to be very narrowly drawn. It appears to say that the claimant must first succeed in an action for defamation for the court to be able to order a website operator to take down material. The amendments I tabled in Committee, but then withdrew, were broader. They covered, for instance, circumstances where an individual could ask for an injunction ordering that material be taken down in advance of an action for libel, which might, of course, take some time to be heard. Is it the Government’s intention that courts should be able to issue injunctions or other orders only after a successful libel action? It would also be helpful if the Minister could clarify the meaning of subsection (2) of the new clause.

I thank Members for their kind words of welcome to me and my fellow Justice Minister, my hon. Friend the Member for Maidstone and The Weald (Mrs Grant). I also echo the tribute the hon. Member for Newcastle-under-Lyme (Paul Farrelly) has just paid to my predecessor, my hon. Friend the Member for Huntingdon (Mr Djanogly), whom I thought the hon. Member for Bishop Auckland (Helen Goodman) was very harsh on, as he certainly was involved in the concessions—

Well, I have read the Hansard reports and I thought the hon. Lady was harsh on my hon. Friend.

I welcome the official Opposition’s attitude to new clause 1 and amendments 5 and 6. The hon. Member for Bishop Auckland made a couple of points, however, which I shall try to address. On jurisdiction, the Government would not pretend that in this Bill we have resolved the international problem she describes. As she knows, it is an extraordinarily complex problem that requires a great deal of work. We are not there yet, and work will continue.

On clause 5, claimants can begin proceedings and obtain judgments in this country even if the operator of the website or the person making the statement is abroad. Then, of course, the issue becomes one of enforcement of judgments. There are international agreements with some countries for that, but I do not pretend that the situation is perfect, and we will look again at what we can do to improve it. The fact that we cannot do everything should not mean we do nothing, however, and this Bill goes a considerable way to dealing with many of the problems.

On amendment 6, I entirely agree with what the hon. Lady said about the desirability of moderation on websites. We do not want disincentives to that, which is why we have tabled amendment 6, and I am grateful for her support for it.

There is no consensus on amendment 7, however. I cannot subscribe to the hon. Lady’s view that clause 5 should be removed. I acknowledge that she said it is not the official Opposition’s intention simply to leave the problem in question unaddressed by removing the clause, but, for the purposes of Report stage, that is the effect of her amendment. It would remove clause 5 and it would not replace it with anything. It is important to bear that in mind.

We will be seeking views on regulations. It is important to ensure that a broad range of views are sought, and that we make sure we get things right. We hope to have secured the necessary input by the end of the year.

The hon. Lady referred to the note of proposed procedure presented to the Committee. It was never intended that that should be the regulations. That was intended as an indication of the Government’s thinking on these matters. Clearly, a good deal of detail is yet to be confirmed. I hope she will accept that that note was designed merely to give an indication of where we are headed.

The hon. Lady made a perfectly fair point about authors refusing to hand over their contact details, rightly saying that if they refuse to hand those over to website operators we will still be requiring claimants to go to court to obtain the Norwich Pharmacal orders, of which she is now intimately aware, and that will put them to expense. That is true but, again, I say to her and to the House that we are trying to strike that delicate balance between the interests of defendants and the interests of claimants. Our procedure attempts to make things easier for claimants, in respect of authors who do not want to say who they are to the website operator, in which case their comments will, of course, be taken down from the website, as well as for authors who are prepared to make their contact details available and whose details will then be passed on by the website operator to the claimant. The hon. Lady said that the Hacked Off campaign has wording that may resolve this problem. If that is the case, I am sure that Lord McNally, who is dealing with this matter in the other place, will be delighted to hear from the campaign and will give that full consideration.

As for the suggestion of placing a notice of complaint next to the posting that was originally causing the problem, I do not think it is fair to say that it is simply a problem of cost. As I understand it, potentially defamatory statements may be embedded in more than one website. We therefore also face the problem of deciding which website operator should be responsible for placing a notice of complaint next to the posting, and that technical problem should not be entirely passed over.

The hon. Lady rightly highlights a wider problem for the Government in respect of anonymity on websites. Again, it is right to say, in the interests of balance, that anonymity can in some cases be entirely justified. Whistleblowers are the most obvious example in that regard, and we would not wish to legislate in a way that prevented whistleblowers from acting under cover of anonymity. We hope that, under the procedures in clause 5, if someone maintains their anonymity and refuses to give their details to the website operator, any defamatory statement or potentially defamatory statement that is complained about will be taken down from the website. Finally, may I reassure her that nothing in the Bill conflicts with the e-commerce regulations?

I very much welcome the support of my right hon. Friend the Member for Bermondsey and Old Southwark (Simon Hughes) for new clause 1 and for amendments 5 and 6. He rightly echoes the comments of the right hon. Member for Rotherham (Mr MacShane) about the difficulty of catching up with Wikipedia. The internet in general is a fast-changing landscape. All of us, as legislators, are running to catch up with it and to do our best to ensure that we achieve the right balance between freedom of speech and the protection of those who may be defamed within that arena.

My right hon. Friend is also right to say that further consideration of the Bill will be given by Lord McNally, with whom I know he is in conversation, and by the other place. However, my right hon. Friend will recognise, to be fair to this place, that there has at least been some movement by the Government on this clause. Even with the time constraints imposed on us, we have been able to shift our ground somewhat through the amendments I have proposed today.

That brings me to the comments made by the hon. Member for Newcastle-under-Lyme (Paul Farrelly). He deserves thanks, and I pay tribute to him, for his assiduous contributions in Committee. His contribution, along with that of the hon. Member for Stoke-on-Trent South (Robert Flello), has obviously moved us towards the Government amendments that I have proposed today. The hon. Member for Newcastle-under-Lyme says that new clause 1 is narrowly drafted, and that is so to a degree. The problem is that with a wider amendment the Government would risk continuing the situation where people who run websites take down statements that they fear may be defamatory and that may leave them open to condemnation without those statements necessarily being defamatory. That is why we have made our judgment in new clause 1 that only when a judgment has been reached will the order be available for courts to make to ensure that those statements can be taken down.

Inadvertently, the Minister has just torn up, buried, driven a stake through one of the oldest principles of journalism: when in doubt, leave it out. That has saved a lot of newspapers in a lot of countries from defamation cases, so it is a very good idea. He is reversing that by saying, “Let it be published. If you have doubts, let’s see whether the person we are defaming can get an action and then a decision from a court judge.” I hope that when the Bill goes to the other place we will enshrine the very good principle of journalism: when in doubt, do not publish and leave it out.

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.

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?

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—

The Minister has been clear that he wishes courts to make orders only after successful defamation cases. What he has not answered is my question about the meaning of subsection (2) of the new clause, which refers to subsection (1) not affecting

“the power of the court”.

The courts, of course, have the power to issue injunctions.

Of course they do. The hon. Gentleman is right to say that I omitted to mention that and of course that is exactly the point. The court’s right to make injunctions remains, and although interim injunctions are rare, they are still available. The purpose of the subsection is to ensure that they remain so. With that, I ask that hon. Members support new clause 1 and amendments 5 and 6, and I urge them to resist amendment 7.

Question put and agreed to.

New clause 1 accordingly read a Second time, and added to the Bill.

New Clause 2

Disapplication of Legal Aid, Sentencing and Punishment of Offenders Act 2012

‘Sections 44 and 46 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 shall not apply in relation to civil actions for defamation, malicious falsehood, breach of confidence, privacy or publication proceedings.’.—(Robert Flello.)

Brought up, and read the First time.

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.

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

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.

You will be relieved to hear, Mr Deputy Speaker, that I shall not read the entire letter, but it is important that the House hears the important points that it makes. It says:

“We strongly object to the passing of this unjust measure and urge you”—

the “you” is the Prime Minister—

“to amend it before it is too late…Of course we are the first to recognise that legal costs in many cases are too high and also that some reforms are justified, but the bill includes changes to Conditional Fee…Agreements and to After-The-Event…Insurance schemes which will effectively make them non-viable in libel and privacy cases, where financial damages to a successful claimant are far too small to cover these costs as the bill currently proposes they should. So only the rich could take on a big newspaper group. 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 or corporate libel claimants. Although the aim of reducing costs is very laudable, the position of lower and middle income claimants and defendants in these types of cases has simply been ignored.

Even if a lawyer will take a high-profile case without a ‘success fee’ that compensates for the risk of losing some cases, or even does the case pro-bono, there is still the enormous risk to defendants and claimants that if they lose, they will have to pay the other side’s costs. A person of ordinary means in that position basically has the choice of living with injustice or risk losing their home…In practice this means that in future ordinary defendants…will also be unable to get support for legal action taken against them often by large institutions with deep pockets trying to silence them. That would be bad news for science and medicine, for free religious debate and for transparency in the public interest…We urge you to take action now to amend the Legal Aid, Sentencing and Punishment of Offenders bill.”

Obviously, such action was not taken. Subsequently, the Prime Minister promised the Dowler family that, prior to the abolition of no win, no fee, there would be a regime in place that would protect claimants, but no such regime has been established to date.

If we cannot get things right in this House, I trust that, when the Bill reaches the other place, Lord McNally will honour a promise he made to Lord Prescott. Let me remind those hon. Members who might be blissfully unaware of what was said. When Lord Prescott, the former Deputy Prime Minister, was moving an amendment to the LASPO Bill, he said:

“I have benefited from the current no-win no-fee arrangement in pursuing my case against the Murdoch press and the Metropolitan Police. I would not have been able to pursue that case without such an arrangement because, quite simply, I would not have been able to afford it. This Bill strengthens the media’s case by reducing their costs, even if they are found guilty and damages are awarded against them. However, not only does it reduce their costs but it transfers the costs to the successful complainant. However one looks at it, it is not justice for the person who wins the case to be penalised by further costs.”

Lord McNally’s ministerial response was very clear:

“I give noble Lords as full an assurance as I can. Bills have to go through Cabinets and Cabinet committees, et cetera, but they also have to go through two Houses of Parliament, where this issue is extremely live. 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.”

In anticipation of Lord McNally’s response, Lord Prescott had said:

“The Minister is talking about whether this can be put into the Defamation Bill. If it is right to put it in that Bill, why wait? I fear that when the Defamation Bill is debated it will be all about defamation costs but there will be very little about privacy breaches, which is what the amendment is concerned with…To duck behind the Defamation Bill and say that it will be dealt with then is frankly not giving the issue the justice that it is entitled to. I am saying that we should side with the weak in this case, not the powerful. Let us have justice. That is what this place is about.”—[Official Report, House of Lords, 27 March 2012; Vol. 736, c. 1324-1332.]

Let me repeat Lord McNally’s crucial words:

“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.”

I, like many others, have pored over every line of the Defamation Bill, so perhaps the Minister will be able to shine a light and point out where the Bill fully deals with such issues. New clause 2 would flush out those hidden words, and if the Minister cannot find them in the Bill, let us agree to the new clause so that they are put in. I hope that he will either highlight where those words have hidden themselves, or find a way of ensuring that we get what was promised.

It is a pleasure to speak in the debate because it gives me the opportunity to congratulate my hon. Friends the Members for Kenilworth and Southam (Jeremy Wright) and for Maidstone and The Weald (Mrs Grant) on their promotion to the Government. I cannot think of two finer people to receive such an honour. I served on several Public Bill Committees with my hon. Friend the Member for Kenilworth and Southam when we were in opposition, and I could not think why he was not made a Minister as soon as we came into government. At least he got there in the end, however, and I sincerely trust that he will stay in his post for a good long time, not least because the Bill is of considerable public importance and interest.

I must disclose a form of interest in the Bill because there was a time when I knew quite a lot about the law of defamation, although I then spent two years as a Law Officer during which I forgot all the law I ever knew. While I was listening to the hon. Member for Stoke-on-Trent South (Robert Flello), I was reminded of our debates during the passage of the Bill that became the Access to Justice Act 1999. At that time, it was apparent that the then Labour Government were not terribly interested in providing access to justice, and I said that that Bill would more properly be called the Denial of Access to Justice Bill. However, that was a long time ago.

I come to our debate on the new clause untrammelled by any knowledge of sections 44 and 46 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, but I did listen to the hon. Gentleman’s speech. I do not think that my hon. Friend the Minister will have to look very hard to find the references that the hon. Gentleman was after, but if the situation is as it has been described, that would be a pity, to say the least.

If the words of my noble Friend Lord McNally that were cited are to mean anything, I trust that the Government will do something about the problem, because a failure to provide access to justice for people without deep pockets should not be encouraged. Conditional fee arrangements—I have benefited from one or two—do not cost the Government any money. They are not an ideal system of achieving access to justice, but they are a way of allowing those without access to funds from trade unions, companies, employers or others to bring or resist actions for defamation. I therefore hope that the Government will consider carefully—if not today, during the gap between the Bill leaving this House and its consideration in the other place—arrangements whereby those without funds can defend either their reputation or a defamation claim.

That said, I hope that the Minister’s speech will persuade the hon. Member for Stoke-on-Trent South that it is not necessary to press new clause 2 to a Division. I hope that we can take the Minister’s word that the matter will be given a lot more thought before the Bill reappears in the other place. Knowing my hon. Friend, I think that we can be reasonably sure that that will be the case.

I support the comments of my hon. Friend the Member for Stoke-on-Trent South (Robert Flello) and the hon. and learned Member for Harborough (Mr Garnier), who I see is still plain “Mr Garnier” on the monitors.

It has been a long road to libel reform. For newspapers and other media, the real issue is cost. Responsible newspapers have been concerned about conditional fee agreements with 100% success fees and the sheer costs involved in such cases, especially as it seemed to be a case of “always win, double the fee”. Of course, we have heard examples where that is not the case: my hon. Friend cited the case of Dr Peter Wilmshurst, consultant cardiologist at Royal Shrewsbury hospital and our local University hospital of North Staffordshire, who needed that measure to be able to defend himself and give some certainty in a fraught situation to his family that, if he were to lose his case, all their worldly goods would not be forfeit.

Over time, proposals have been made, including by Lord Justice Jackson and my right hon. Friend the Member for Blackburn (Mr Straw), who laid a statutory instrument which was—almost uniquely—defeated by a cross-party ambush in Committee, because Members felt so strongly about the issues involved. In addition, the Culture, Media and Sport Committee, of which I am a member, produced proposals to limit the uplift in fees to 10%, rather than 100%, and not to recover after-the-event premiums—often, there is a false market in those premiums. I will put on the record now my belief that, in that report, we went too far, but our proposal was not to abolish an uplift, which would encourage lawyers to take on difficult cases, in their entirety. On the one hand, we are reforming libel law to protect responsible journalism, but on the other hand, we are potentially denying people access to justice, and I think the whole environment has become unbalanced.

What we have to remember, with phone hacking and Lord Leveson soon to report, is that we have a macho media world and some highly aggressive corporations. If we remove people’s ability to fight to restore their reputation, we risk giving a carte blanche to libel and going back to the bad old days when the only questions a newspaper asked were, “How much have they got? Can they afford to sue us?”

There seems to be some consensus that the main obstacle to pursuing a defamation claim would be lack of cash. Does my hon. Friend agree that, rather than resolve that crucial issue, the Government’s proposals could make the situation worse?

I entirely agree. I do not propose a return to the bad old regime, but I hope that the Government will give some thought to the remarks made by my hon. Friend the Member for Stoke-on-Trent South and the hon. and learned Member for Harborough. The situation is unbalanced now and we need to address that.

So often, if people do not sue, our media do not take them seriously. That simply increases the licence to libel. I know people who defend responsible journalism and investigative journalists who have had to take that course of action because newspapers with an agenda have been out to get them; if they did not threaten or take legal action, the situation would never change. I believe the culture of our media needs to be borne in mind, as we will be reminded when Lord Leveson reports next month.

I welcome back to our debates the former Solicitor-General, whom I thank for his work in that office. It was much appreciated and I wish him well in considering things from a non-Government and non-Law-Officer perspective.

I declare an interest that means that I will not vote on the new clause if it is pressed to a Division. I am the recent recipient of a conditional fee agreement in the well publicised series of actions against News International. Even though, like all my colleagues here, I am on a parliamentary salary of more than £60,000 a year, had I not been offered a conditional fee agreement the prospect of taking News International to court subject to the risks that, in theory, followed from that might well have dissuaded me from doing it. If those risks might have dissuaded me and anyone on a salary similar to mine, how much more would they have dissuaded people earning a lower salary, much less experienced than I in such matters—not a lawyer—and not used to dealing with the media? We have to be realistic about the relevance of the issue and be aware of the need to continue the debate.

New clause 2 would remove the provision of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, passed at the end of the previous Session, and return to the status quo. My party has formally debated the matter at our conference and is clear that reform of the law is needed. This has been the subject of two or three debates relating to phone hacking specifically and to libel law reform more generally. Campaigners on both sides—both those who might be claimants and those who might be defendants—have supported some reform of the law. Strong arguments have been made to cap success fees and to replace after-the-event insurance with cost shifting. The Government made a promise—it was cited by the hon. Member for Stoke-on-Trent South (Robert Flello)—to address the issue. As colleagues might imagine, I have discussed the subject with my noble Friend Lord McNally, whose commitment to making progress is on the record. I am sure that the Government, with my noble Friend remaining as Minister of State with a new team around him, will not lose sight of the fact that this is unfinished business.

The simple facts are that damages in privacy and libel cases are often relatively small and the legal costs often relatively large. That is the imbalance. It is not always the case, but it is often the case. There is real concern that the effective removal of success fees will mean that lawyers will no longer be able to offer conditional fee agreements and that that will prevent all but the wealthy from taking action. Even more important, it could be argued, the abolition of insurance premiums would mean that people risked their homes and other assets on legal action against a newspaper. To return to my starting point, most of the victims of phone hacking have made it clear that they would not have been able to bring claims had it not been for conditional fee agreements.

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.

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.

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.

The hon. and learned Member for Harborough (Mr Garnier) suggested that the Defamation Act 1999 was a denial of justice. If he feels that way, he must be incredibly upset about what happened under the Legal Aid, Sentencing and Punishment of Offenders Act, which really is a denial of justice. He, like many others, said that the Minister will take that point on board. I will return to what the Minister has said in a moment.

As many Members have said, it is a pity that what was promised is not in the Bill. My hon. Friend and neighbour the Member for Newcastle-under-Lyme (Paul Farrelly) referred to my right hon. Friend the Member for Blackburn (Mr Straw) being subject to a cross-party ambush. I suspect that after Monday night the Minister will have a lot of sympathy with what happened to my right hon. Friend. My hon. Friend and neighbour said that responsible journalists are made grubby by the scurrilous ones, and that we cannot have this licence to libel.

The right hon. Member for Bermondsey and Old Southwark (Simon Hughes) understands the problem, because he had a CFA for his claim against News International. If he was concerned about the financial implications of taking a case without CFA, what about constituents who are in a far worse position? That goes to the crux of our concerns and is the reason for new clause 2.

How long must we wait for reform? A promise was made when we debated the Legal Aid, Sentencing and Punishment of Offenders Bill. The draft Bill did not mention defamation costs to ensure that people can afford to take action if they are defamed or if they want to defend themselves. The Joint Committee has done some excellent work, but it has not resulted in anything that protects claimants and defendants. There was nothing in the Bill on Second Reading or when it was debated in Committee, and we are now on Report and still nothing has been suggested. I hear what the right hon. Member for Bermondsey and Old Southwark says, but how long must we wait for an answer? The hon. Member for Worthing West (Sir Peter Bottomley) noted that the Government have already made exceptions on mesothelioma and recounted his own examples of being defamed.

The Minister is right to say that the LASPO Bill, which is now the Legal Aid, Sentencing and Punishment of Offenders Act 2012, received full parliamentary scrutiny. I recall that the Government suffered 14 defeats in trying to get it into some sort of shape that was halfway to what it should have been. Yes, there is a rebalancing between claimants and defendants in the Defamation Bill, but if we want to tackle costs, surely the Government should have addressed that and not stopped those without means being able to get justice.

I may have misheard the Minister—if he wants to intervene, I will certainly allow him to do so—but he seemed to defend newspapers that fear the chilling effects of defamation claims. Undoubtedly, newspapers have been on the receiving end of defamation law suits, but my sympathy lies with the ordinary person in the street and our constituents, not the deep pockets of the newspapers.

Let me be clear about what I said: it has long been argued by newspaper editors that there is a chilling effect on freedom of speech and some of the things under discussion, and I think there is broad agreement throughout the House that there is a risk that some defamation actions could have that effect. The costs regime has an impact on that. I then went on to say that not every defendant is a newspaper, and certainly not a well-funded newspaper. That was the substance of my point.

I appreciate the Minister’s clarification, but I think that the newspapers will always claim that there are chilling effects. On balance, this will hit the likes of the McCanns and the Dowlers—people whom we should really be making sure are not hit.

In conclusion, I will push the new clause to a vote, because it is on a matter of principle. We need to send a message that when a promise is made, we expect to see it fulfilled.

Question put, That the clause be read a Second time.

New Clause 4

Publication on matters of public interest

‘(1) The publication of a statement which is, or forms part of, a statement on a matter of public interest is privileged unless the publication is shown to be made with malice.

(2) Subsection (1) shall not apply if the claimant shows that the defendant—

(a) was requested by him to publish, in a suitable manner, either or both

(i) a reasonable letter or statement by way of explanation or contradiction (a “response”), and

(ii) where appropriate, a correction or clarification; and

(b) refused or otherwise failed to do so.

(c) For the purpose of subsection 2(a), “in a suitable manner” means in the same manner as the publication complained of or in a manner that is adequate and reasonable in the circumstances.

(d) In determining what is “adequate and reasonable” for the purposes of subsection (3)(a) particular regard shall be had to—

(i) the need for a response to have equal prominence as the statement complained of;

(ii) the promptness of the publication of a response;

(iii) the extent, prominence and promptness of the publication of a correction or clarification.

(3) In determining whether, for the purposes of subsection (2)(a)(ii), a correction or clarification is “appropriate” regard shall be had to—

(a) whether a correction or clarification is required to extinguish any defamatory imputation of the statement complained of, and

(b) whether the author, editor or publisher knew, or ought to have known, that the defamatory imputation (or, in the case of a statement of an opinion containing a defamatory imputation, the fact on which the opinion was based) was false by the time the complaint was received or upon receipt of the complaint.

(4) For the purposes of subsection (1) malice shall be taken to mean—

(a) the absence of an honest belief in the truth of the statement complained of, or an opinion expressed therein,

(b) reckless disregard to the truth or falsity of the statement complained of, or

(c) the existence of a dominant improper motive for the publication of the statement complained of.

(5) Nothing in this section shall be construed as—

(a) protecting the publication of a matter the publication of which is prohibited by law, or

(b) limiting any privilege subsisting apart from this section.’.—(Simon Hughes.)

Brought up, and read the First time.

With this it will be convenient to discuss the following:

Amendment 9, page 2, line 40, in clause 4, leave out from ‘statement’ to end of line 41 and insert—

‘the court must have regard to all the circumstances of the case and those circumstances may include (among other things)—’.

Amendment 1, page 3, line 5, after ‘it’, insert—

‘or within or a reasonable amount of time following initial publication’.

Amendment 10, page 3, line 7, leave out paragraph (g).

Amendment 2, page 3, line 8, at end insert—

‘within a reasonable amount of time, allowing for the public and commercial interest in publication.’.

Amendment 11, page 3, line 9, leave out from ‘the’ to end of line and insert—

‘urgency of the matter; or’.

Amendment 3, page 3, line 10, at end insert—

(j) whether the defendant had made reasonable efforts to abide by the National Union of Journalists’ Code of Conduct.’.

Amendment 12, page 3, line 10, at end insert—

‘() the extent of the defendant’s compliance with any relevant code of conduct or other relevant guidelines’.

Amendment 4, page 3, line 21, at end insert—

‘(7) In determining public interest, the court shall have regard to whether the claimant is a person in public life, which should be taken to include (amongst others) politicians, public officials, celebrities and others whose influence, earnings or social status is dependent on a public image.’.

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.”

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?

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.

New clause 4 is designed to take as many cases as possible out of the courts. As we heard in the previous debate on conditional fees, this is an area in which avoiding going to court is for the better. I also sense—it is the mood I have picked up when I have heard these issues debated across this Chamber in questions or in Committee—that when most of our constituents discover something in the press that either libels or defames them, what they want most of all is an immediate or very speedy publication of an apology, a retraction or a correction—bluntly, of the same size and in the same place as where the original allegation was made. We can never undo an allegation that has been put out, but if a tabloid newspaper puts something on its front page that is blatantly wrong, malicious and unsupported by the evidence, people will feel that at least there has been some remedy if the next day or the next week, on the same page of the same paper, something appears to say, “I’m sorry; we were wrong”.

The gentleman arrested last year in Bristol on a charge of murdering a young woman—it turned out to be a completely false trail—was willing to stand up and argue his case in public, being fairly combative about it, but that is not the case for all our constituents. Some are not in a position to engage with the media, and would not wish to do so, in trying to correct the record.

New clause 4, with the support of the Libel Reform Campaign, is designed to achieve the following. First, it sets out to ensure that we assert press freedom, by saying:

“The publication of a statement which is, or forms part of, a statement on a matter of public interest is privileged”—

so it would be allowed—

“unless the publication is shown to be made with malice.”

I would argue that in addition to a provision such as the clause currently in the Bill, we need a further protection for press freedom, but one that will be lost if an author is malicious or shown to be malicious. Losing the protection would follow from failing to publish the apology that had been requested. That is provided for in subsection (2): the publication or newspaper would lose its defence if the claimant could show that the defendant

“was requested by him to publish, in a suitable manner, either or both…a reasonable letter or statement by way of explanation or contradiction…and…where appropriate, a correction or clarification; and…refused or otherwise failed to do so.”

There is a definition of “a suitable manner”, which means, in short,

“adequate and reasonable in the circumstances.”

There is also a definition of what is “adequate and reasonable”, and the provision refers to

“equal prominence as the statement complained of;…the promptness of the publication of a response;…the extent, prominence and promptness of the publication of a correction or clarification.”

“Appropriate” is defined, too, and the provision refers to

“whether a correction or clarification is required to extinguish any defamatory imputation”


“whether the author, editor or publisher knew, or ought to have known, that the defamatory imputation”—

or, if it is an opinion—

“the fact on which the opinion was based…was false by the time the complaint was received or upon receipt of the complaint.”

Lastly, there is a definition of “malice”, namely

“the absence of an honest belief in the truth of the statement complained of, or an opinion expressed”,


“reckless disregard to the truth or falsity”,


“the existence of a dominant improper motive for the publication”.

If a newspaper went after a colleague, a councillor, a council leader or a parliamentarian, or any individual, with no evidential basis for its assertions, unless it owned up to its failure and offered redress in the form of a published apology there would be a basis for a malicious claim, and the public interest defence would not apply.

I am fully aware of the provenance of the new clause and of the sterling work done by the Libel Reform Campaign, and I am very sympathetic to what the right hon. Gentleman is trying to achieve, but I want to ask him a question. Let us suppose that an innocent mistake is made, which may not be apparent to the newspaper. When a complainant writes to the newspaper saying “I want an apology”, the newspaper gives the standard response, “We stand by our story: it is true and in the public interest.” I fear that in those circumstances there will be no defence for responsible journalism, because under the new clause it falls away.

I accept that, and I pay tribute to the hon. Gentleman’s work, which has been gleaned from his experience in his previous life as a journalist.

What we are trying to do between us is ensure that if we are to replace the common-law defence with a statutory defence, we not only deal with the general proposition that if something is in the public interest, that should be a defence, but find ways of giving the public a remedy—which they do not currently have, short of going to law—and ratchet up the probability that a public interest defence will be unsuccessful if the defendant has been malicious.

As the hon. Gentleman rightly pointed out, the definition of “malice” in the new clause is not my own handiwork. Others have been working carefully to craft what they consider to be the right second-tier definition. The aim is to establish two tiers of consideration: there should be a general public interest defence, but the situation should be deemed to have gone beyond that when a publisher has flown in the face of the facts or the evidence. That would not apply to the example given by the hon. Gentleman, because if a newspaper could honestly argue that the statement that it had published was ignorant and innocent and that there had been every reason for believing that it was true, it would obviously have a much more complicated public interest defence case to argue. In the absence of my new clause, it would then have to rely on something like the clause that is currently in the Bill.

Let me make just two more substantive points. I am keen for us to end up with legislation that will give people a way out of the legal process when that is possible. Who knows what the Leveson inquiry will produce? I sense that one of its main recommendations will concern how we should deal with the public’s desire for inaccuracies to be corrected. I gave evidence before Lord Justice Leveson, as did others, and that was a major subject of debate. We may have to legislate if Lord Justice Leveson proposes legislation, and I hope that that would happen in the Session that will begin next May. It is therefore possible that we will return to this issue.

There is a debate about when the Leveson report will be ready, but if it appears as early as October, it may give us time to incorporate any proposals in this Bill. If it does not produce its recommendations until December, which now looks more likely, I sense we will have to come up with further legislation specifically to deal with the Leveson recommendations. Although we may not come up with a perfect solution in this Bill, however, both Government and Opposition parties have said they want to try to get this issue sorted now and get a better definition of public interest defence.

I want the House to agree to a measure that adds to the current clause 4, with a new defence available to publishers who are prepared to correct the record or publish a right-to-reply response promptly and prominently, thereby avoiding the use of lawyers. That answers the need in the internet age for a much speedier response—otherwise many readers are unlikely to see both the original content and the later clarification. It offers newspapers and other publishers a way of being responsible after the publication of the initial story, too, because they can be shown to have corrected what they have published. It will also serve not to permit the repetition of a defamatory allegation that has been promptly or prominently corrected or clarified. It would, therefore, take disputes out of the courts, thus saving people money, and it would speed up justice and make it more publicly accessible. It would not apply if the author were motivated by malice in its widest definition, which includes political or personal ill will or vendetta, rather than just the old honest opinion defence. The information must also be understandable to the public.

The Reynolds defence no longer works. Everybody accepts that we must move on from that common-law position for all sorts of reasons. We are in the age of the citizen-journalist, and we need to adapt the rules to accommodate that. We need something that will work for conventional newspaper groups and new media organisations. The Reynolds defence has outlived its time. It will no longer be sufficient to have a checklist of tests in every court case. Perhaps we ought to debate again whether to have early strike-out clauses in order to get other kinds of cases out of the courts, too. We need a measure that sorts out at the beginning of proceedings, rather than the end, whether there is a public interest component.

The right hon. Gentleman referred to strike-out clauses. He is probably aware of the case of my constituent Hardeep Singh, who was the subject of a lengthy and unfair—and extremely expensive, for him—case centring on a matter of religious dispute. The judge eventually clearly ruled that the matter should not be dealt with by the courts. A similar doctrinal dispute could arise in future, so if there is not an early strike-out opportunity someone else could suffer as Mr Singh did. What can be done to end this?

I know about that particular case; indeed, it has become something of a cause célèbre. I support having an early strike-out provision. We had a long debate on the subject in Committee, which is why Mr Speaker did not select an amendment on it for debate on Report. I hope we can persuade the Government that an appropriate public interest defence, plus a remedy for resolving disputes along the lines I have suggested, plus early strike-out is the right combination not just to address cases such as that of the hon. Lady’s constituent, but to prevent other kinds of unacceptable attack. I hope she will work with us. I am sure that she will. She also has relevant experience that I hope she can bring to the debates after today.

My final point relates to the offer of amends defence. As colleagues will be aware, that is exactly what it says it is: someone can go to court to say, “Look, I have made an offer to sort this out. Therefore, I am not guilty and I will be let off.” What I am arguing for is not the same as an offer of amends. That means an admission of liability and requires agreed damages—or leaves it for the court to agree damages, with a discount if the offer has been made, and costs and so on. That is a settlement mechanism, which is conventional in the court process, and it has been able to be a defence only if the claimant refused an offer in any case. I am arguing for something wider than that. I believe that what I suggest is compliant with human rights law and that it produces a route to get lots of cases out of the courts. I hope that Ministers will add it to their list of things in their inbox of proposals to consider; that is what I want the Minister to say today. I look forward to the continuing debate. We have a few more months to get this into good shape, but we need to do quite a bit more work before it will be in that position.

Amendment 9 is the first of a series aimed at either improving or clarifying the Government’s thinking on clause 4 regarding “responsible journalism”. Clearly, the right hon. Member for Bermondsey and Old Southwark (Simon Hughes) has given the Government more food for thought, and he usefully clarified that his new clause 4 would in no way be a replacement for clause 4 but that it would be an additional safeguard. I want to say at the outset that I welcome the Bill’s recognition that responsible journalism should be protected, in the public interest. However, during the passage of the Bill we want to make sure that what is codified is not a step back from the current case law that has been largely welcomed, and we also do not want to give a charter for sloppy, frivolous, inaccurate or sometimes downright nasty journalism.

The clause in effect codifies the defence of qualified privilege established in the judgments in the cases of Reynolds v. Times Newspapers Ltd and then Jameel v. Wall Street Journal Europe, as we have heard. One of the concerns among serious journalists about the current state of the law, and therefore about the construction of this clause, is that the list has the potential to be interpreted by lower courts in particular as an inflexible tick-list: a set of hurdles, each and everyone of which needs to be surmountable before the defence can be deployed.

In his landmark judgment in the Reynolds case in 1999, Lord Nicholls enumerated 10 different matters that a court could take into account in allowing a defamatory article the protection of qualified privilege. They are slightly different from the nine in paragraphs (a) to (i) in subsection (2), but clause 4 seeks to capture their essence. Lord Nicholls made it clear from the start that his list was by no means exhaustive and was meant to be flexible, depending on the circumstances. He said:

“The weight to be given to these and any other relevant factors will vary from case to case”.

That important point was underlined in 2006 in the very different case of Jameel v. Wall Street Journal Europe. The first case concerned an article in The Sunday Times regarding the former Irish Taoiseach Albert Reynolds, whereas the Jameel case concerned a Wall Street Journal article in the aftermath of the events of 9/11 saying that US law enforcement agencies and the Saudi Arabian central bank were monitoring bank accounts associated with prominent Saudi business men. The central question was what sort of reporting might be in the public interest, even when the imputations and the allegations carried might be untrue and defamatory. In the Jameel case, Lord Bingham of Cornhill set out very clearly how the Reynolds factors should be interpreted:

“Lord Nicholls....intended these as pointers, which might be more or less indicative, depending on the circumstances of a particular case and not, I feel sure, as a series of hurdles to be negotiated by a publisher before he could successfully rely on qualified privilege.”

That is indeed how the lower courts had interpreted the list. In the Jameel case, the House of Lords was critical of the High Court—in that instance, Mr Justice Eady—and the Court of Appeal in denying qualified privilege on one narrow ground taken from the list.

Indeed, because of the operation of the lower courts, newspapers and non-governmental organisations also prepare for and approach Reynolds defences according to a tick list. That accounts for the complaints about how costly it is in practice to “run a Reynolds”. The likely bill would be calculated by totting up how much it would cost to satisfy the court that each of the 10 factors had been satisfied.

In Committee, the Government said that the wording in the preamble to subsection (2) of clause (4) already made it quite clear that the list was not exhaustive. The purpose of amendment 9 is to make it even clearer that a court should take all circumstances into account. I admit that the wording is essentially not mine, but is taken from the noble Lord Lester’s Defamation Bill, a private Member’s Bill that gave much impetus to the Bill that we are now considering.

Amendment 10 is aimed at probing, as we did in Committee, whether or not clause 4 is a step back from the case law as it has developed. The right hon. Member for Bermondsey and Old Southwark mentioned the case of Flood v. Times Newspapers, which came up in Committee. For the uninitiated, that concerned the case of a policeman, Detective Sergeant Gary Flood, who was being investigated internally by the Metropolitan Police over alleged corruption by wealthy Russians but who was later cleared. The central question for the case was whether it was in the public interest for the fact of an investigation to be reported, with the officer’s name, even though the allegations were plainly defamatory and he was eventually cleared.

The Supreme Court found this year that in the circumstances of that case, the newspaper group could rely on qualified privilege. The case is very recent, coming just weeks before publication of the Bill, and I mention it in relation to the amendment because there is concern among serious journalists and defamation lawyers that the clause as drafted is a step back from Flood. Indeed, the case is not even mentioned in the explanatory notes.

The concerns crystallise around the drafting of clause 4(2)(g) and the question of whether courts will require newspapers in every case to investigate and prove the truth of allegations that are subject to investigation—for example, by the police, as they were in the Flood case. As drafted, paragraph (g) appears to go beyond Reynolds, where one of Nicholls’ factors or tests is to “verify the information”, which is a very different thing to verifying the truth of the allegations. That is where the concerns about paragraph (g) lie.

I understand the hon. Gentleman’s point about the reporting of investigations, but is not one of the problems with the potential removal of paragraph (g) the fact that it essentially enables journalists to print almost anything, subject to the other conditions, without taking any steps to verify the truth of something that is not under investigation? If the paragraph is removed from the Bill, it will amount to a charter for libel.

The hon. and learned Gentleman makes a fine point. The purpose of my amendment, which I shall not press to a Division, is to probe the Government’s thinking. Other suggestions for amendments were made in Committee and some of those might reflect the judgments given in Reynolds more closely than paragraph (g).

Any decisions by lower courts can be appealed, but going all the way to the Supreme Court is very time-consuming and expensive. The purpose of my amendment 10 is therefore to get the Government to clarify what they mean by paragraph (g) and whether they have fully taken into account the most up-to-date case law, and to give them the opportunity to state to the House that there is no intention that the clause should be at odds in any way with how the “responsible journalism” defence has been developed by the courts over the years.

Amendment 11, which relates to subsection (2)(h), simply reflects the actual wording used by Lord Nicholls in his list in the Reynolds case, in which the court considered whether a newspaper might reasonably have delayed publication—for instance, to wait longer for a comment from the subject of an article—rather than going to press when it did. The concern in the legal profession about the current wording of sub-section (2)(h) is that it is neutral and does not capture the essence of the urge, or the urgency, to publish. It is a concern for weekly, fortnightly or monthly publications, for example, that withholding a comment can be used to try to ensure that a story does not appear in a particular edition. I shall pray the noble Lord Lester in aid again. Urgency appears explicitly in his list of factors that the courts may take into account. In his private Member’s Bill, he proposed that they may consider

“whether there were any factors supporting urgent publication”.

Amendment 12 is lifted word for word from Lord Lester. It is intentionally broader than amendment 3, which my hon. Friend the Member for Hayes and Harlington (John McDonnell) will speak to shortly. It also seeks to address a concern that was not addressed in Committee. Following the phone-hacking affair and the failure, yet again, by certain aggressive tabloids to put their own house in order, there is now a crisis of confidence in the press in this country. The Press Complaints Commission palpably failed over phone hacking, and in cases such as that of the McCanns. It is broken, and the “son of PCC” advanced by the industry to replace it looks all too much like the PCC itself. The mantra in the industry often seems to have been never to let the editors’ code of practice get in the way of a good story or good business. I am sure that, when Lord Justice Leveson reports next month, he will make similar damning judgments about the practices of the press, or certain parts of it.

The amendment seeks to give statutory recognition, if that is the right word, when newspapers are seeking to rely on qualified privilege, to the importance of journalists following a relevant code of practice—be it their own publication’s code, the editors’ code, one from a regulator or that of the profession. It also seeks to bolster the position of journalists. They are frequently asked by editors to do things that breach those codes: “Leave your morals at home or you’ll be colouring in the black squares on the crossword before we sack you” can instil genuine fear in many parts of the industry. Only editors and proprietors have been consulted on the proposals for the reform of the PCC; journalists have not. I believe that in striving for better quality journalism, we should give good codes of practice more weight. The amendment seeks to do that.

I listened with the greatest possible care to what the right hon. Member for Bermondsey and Old Southwark (Simon Hughes) said in moving his new clause, but I confess that I was either unconvinced or did not entirely understand the thrust of his argument. I am sure that that is entirely my fault. I also listened with care to the hon. Member for Newcastle-under-Lyme (Paul Farrelly), and I found him a little easier to follow. Both those contributions have persuaded me, however, that the amendments are not helpful to the wider debate. They have further persuaded me that, if we are to legislate, clause 4 is the way to do it.

Clause 4(2) proposes that, when determining whether a publisher has acted responsibly, the court may have regard to a list of factors, “amongst other matters”. The phrase “amongst other matters” reminds us of the words of Lord Nicholls in the case of Reynolds. His list of factors was non-exhaustive. In an ideal world, however, legislation is not the right way to go about this. The proposals in clause 4 are better to be found in the common law and in the development of case law. I appreciate that if courts are to develop the common law, that leads to a need for litigants to litigate, but such an approach provides necessary flexibility. By setting in stone clause 4, or another version of it, we will face the problem that it might not always be fit to deal with future circumstances. We are probably unwise to be doing that, albeit not so unwise that I would suggest removing clause 4 from the Bill. I do not think that we should have started from where we are, but I did not draft the Bill, and in so far as I had any influence on the people who did so, they sensibly ignored my opinion.

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?

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.

It is entertaining to be following the hon. and learned Member for Harborough (Mr Garnier), not least because he was a junior in a libel action that was taken against me some years ago, which almost cost me my home. I think that it was one of the cases when Carter-Ruck was roving wildly.

Let us not go into it now; we can discuss it another time.

I am the secretary of the parliamentary group of the National Union of Journalists, which obviously has taken an interest in the Bill. The right hon. Member for Bermondsey and Old Southwark (Simon Hughes) said that this is something of a dress rehearsal for what comes out of Leveson and, as my hon. Friend the Member for Newcastle-under-Lyme (Paul Farrelly) said, there is real concern about the Bill’s practical implications and what might arise from Leveson.

It is clear, as hon. Members have said, that good journalism is essential for a healthy democracy and that investigative journalism plays a vital role. As the right hon. Member for Bermondsey and Old Southwark said, we have heard today about the worst journalism, in the form of the performance of The Sun on Hillsborough, but there are examples from recent years of the best journalism, such as the exposure of corruption in the House with MPs’ expenses and of ministerial relationships. For me and the NUJ, it is critical that the Bill does nothing to undermine the vital role of good journalism and the contribution that it makes to our society. Of course, it is also important to ensure that journalists uphold decent standards of behaviour, so we must get the balance right, and I have tabled amendments to deal with the Bill’s practical implications on the basis of the way in which journalism operates and the pressures and pace of journalistic practice.

Although I welcome the context of clause 4 and the range of factors of which a court must take account when reaching a decision about the protections of privilege, the measure raises questions about practice on the ground. Subsection (2)(f) deals with the court taking account of

“whether the defendant sought the claimant’s views on the statement before publishing it and whether an account of any views the claimant expressed was published with the statement”.

Amendment 1 inserts a reasonableness test with the words

“within…a reasonable amount of time following initial publication”.

The aim is to broaden the potential for journalists to claim the defence of having contacted the claimant within a reasonable time frame, not necessarily before publication.

We all agree that it is good practice for a journalist to contact the claimant before publication, but that is not always possible for a variety of reasons, some of which relate to the way in which the courts have been used—the threat of a lawsuit or the triggering of an injunction or a super-injunction, and, in some cases, the threat of physical force. Often injunctions are sought by the rich and powerful, who are keen to prevent the publication of a detrimental story, or to delay its publication until they have had time either to hide the damaging evidence, or develop an appropriate public relations strategy to limit the damage. I believe that it should be a defence that the claimant’s views were published either concurrently with or within a reasonable time after initial publication, as existing journalistic codes already demand.

Amendment 2 is designed to acknowledge the fact that, yes, journalists should take all reasonable steps to check the accuracy of facts, but to recognise also the pressures of a news environment. While rushing to print is no excuse for poor journalism, journalism is part of a commercial operation and getting the story first is often crucial for a newspaper or broadcaster’s commercial viability.

Many years ago, early in my trade union life, the Daily Mail made up quotes, attributed to me, regarding a BBC meeting on a strike issue. When I remonstrated with him, the journalist said, “Oh, come on Denis, it’s the kind of thing you’d have said anyway.” It was, but that missed the point, which was that I had not used those words. I am worried that a future judge, reading my hon. Friend’s speech as he tries to work out how to interpret the clause, will think that it is quite all right to wait until after a story is published to seek a quote. Paul Dacre would thoroughly approve.

I would say that falls on the basis of clear malice on the part of the journalist.

The point of the amendment is to recognise the commercial environment in which journalists work. To have a scoop, it is important to get out there and publish a story. Of course, if there are errors or inaccuracies, there is the opportunity at a later date to publish the appropriate corrections. Often, public interest news stories are perishable, lasting only a limited period. It is important to get a story out there while it can influence the public debate.

Amendment 3 follows on from the points made by my hon. Friend the Member for Newcastle-under-Lyme about codes of conduct. Under the amendment, the courts, when considering matters of privilege, would have to have take into account whether the defendant had abided, or tried to abide, by the standard code of practice, which was introduced by the National Union of Journalists and developed from the 1930s onward. That code of conduct includes a requirement that the journalist

“Strives to ensure that information disseminated is honestly conveyed, accurate and fair…. Does her/his utmost to correct harmful inaccuracies”


“Differentiates between fact and opinion.”

The NUJ says that within the code of conduct

“material for stories should be obtained by honest, straightforward and open means”.

Only exceptionally in the public interest should any other means necessarily be used to obtain a story.

We all know from the evidence provided to Leveson the pressures that are applied to journalists. Michelle Stanistreet, the general secretary of the National Union of Journalists, presented evidence collected from journalists about the pressures put on them to fail to abide by that code of conduct, which is one reason we tried to amend employment legislation. We wanted the code of conduct to be written into employment law, so that journalists would have protection against wrongful dismissal if they were seeking to abide by the code and refused to write a story that broke it or went against it. This measure is another way of introducing the code in legislation, which we should use to uplift the standards of journalism and give people protection.

Finally and more contentiously, I wish to add to clause 4 a further category for consideration. Amendment 4 states:

“In determining public interest, the court shall have regard to whether the claimant is someone in public life, which should be taken to include (amongst others) politicians, public officials, celebrities and others whose influence, earnings or social status is dependent on a public image”.

I introduce that provision with some trepidation, because it is a red light for any journalist who wants to trawl through my private life to demonstrate how someone could be defended on that basis. I do not have any criminal convictions—I have spent a few nights in the cells as a result of demonstrations and so on—and I have no bizarre sexual proclivities that I am aware of, although I have noticed my wife and her friends reading “Fifty Shades of Grey”, so I shall keep Members updated on that one.

The whole point of the provision is to recognise that there are two different categories of people. Civilians do not rely on their public reputation for their earnings and do not parade their standing or use their public image to that effect. Journalism has a role in exposing the wrongdoings or antisocial behaviour of individuals in public life. It has been an essential part of our democracy for centuries in enabling us to judge whether someone is suitable for public office. That applies too to those celebrities who earn a living from their celebrity status and exert some influence in our society. There is case law on this, including a recent case involving Steve McClaren, in which Justice Lindblom said that it was clearly in the public interest to expose a story about someone whom he described as “undoubtedly a public figure”.

In America, there is a public figure defence, which establishes some form of privilege. That means that someone in public office would have to prove either a reckless disregard for the truth or malice when damaging information is published. Refusing to print corrections or clarifications, for example, would constitute evidence of reckless disregard. My proposal recognises what the public appear to appreciate, even if others do not do so: those who enter into public life should be open to public scrutiny. As long as that scrutiny is honest and produces evidence that can be substantiated, they have to take the rough with the smooth. On that basis, we can maintain both the standards of journalism, by making sure that journalists report accurately and fairly, as well as the role of journalism in exposing falsehoods, lies and corruption.

I shall not press my amendments to a Division. Overall, they seek to put into context the reality of journalistic practice. We live in a fast-flowing, 24-hour multi-media world. There are limited staff resources, and journalism is highly competitive, with immense pressures just to survive. Journalists need protection just as much as other individuals if they are to perform their role in society and if we are to value them as the foundations of our democratic society.

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.”

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.

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.

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.

Indeed. As I was about to say, because we both know their provenance, we understand the reasons for that uncanny resemblance, so it would be hard for me not to support new clause 4, especially given that my new clause was withdrawn with the specific intention of fighting it another day.

You will be reassured, to know Madam Deputy Speaker, that I have no intention of rehearsing our discussion of clause 4. Instead, I invite the House to read in Hansard what was said. However, I was dissatisfied with the previous Minister’s assurances on the predecessor to new clause 4, and was not reassured that it encompassed Reynolds, as revised by Flood and Jameel. I hope, therefore, that the other place can pin down the Minister on this matter and get some better legislation out of this.

As I understood the observations of the right hon. Gentleman, new clause 4 is intended as an addition to the statutory version of Reynolds. The existing clause 4 defence would be available to publishers with deep enough pockets who did not wish to publish a clarification, contradiction or, where relevant, a correction. The new clause 4 defence would be available to publishers prepared to correct the record promptly and, if needs be, prominently, and to publish a right of reply promptly and prominently, avoiding the use of lawyers.

As Members on both sides of the House have said, in the internet age, a prompt and prominent clarification, contradiction or correction can be an adequate remedy for non-malicious public interest publication, particularly given that some readers might see an original posting but not a subsequent one. So publishing a correction straight away online is often a good way of doing it—perhaps we could call it a post-publication responsible publication. The Opposition are concerned that we end up with a clause 4 that does the job. As I said, I support the direction of travel in new clause 4, and look forward to hearing the Minister’s comments. I hope to hear something new, not what we heard in Committee, and something from which we can take reassurance.

On the amendments tabled by my hon. Friends the Members for Newcastle-under-Lyme (Paul Farrelly) and for Hayes and Harlington (John McDonnell), my constituency neighbour, my hon. Friend the Member for Newcastle-under-Lyme, pointed out that the Reynolds list was meant to be flexible, but that this had led to a catalogue of problems. I welcome his attempt to tidy up clause 4 while seeking to probe the Government’s thinking. It is important that the Minister gives us the reassurance and advice we seek.

My hon. Friend the Member for Hayes and Harlington outlined the NUJ’s understandable interest. It will have concerns that good journalism will suffer because of the behaviour of bad journalists and the unfair pressure placed on good journalists by editors and owners not as concerned about good journalistic standards as they are about profits and getting the sensational headlines to generate them. I see where he is going with his amendments, and I understand the positive intentions behind them. I suspect that much of clause 4 will need to be revisited following the conclusion of Lord Leveson’s work. It is almost a great pity that the Bill has proceeded so quickly through the House. If it had been delayed, perhaps by a few months, we could have incorporated conclusions and findings from the Leveson inquiry and the inquiry into privilege. It should all be looked at as a package, rather than taking defamation as a stand-alone issue. This is an important subject and the law has not been amended since 1996. All the party manifestos wanted the law amended, but the undue haste of trying to get the Bill through Parliament—specifically clause 4 —means that the amended Bill with its additional new clauses does not currently pass the test of good and effective potential legislation. In the spirit of trying to get a good result, I look forward to what the Minister has to say.

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.

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.

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.

I shall be brief in winding up this valuable debate. I am grateful to colleagues, who have expressed different views on how we should proceed. My hon. and learned Friend the Member for Harborough (Mr Garnier) said that it would be best to leave it to common law, but the problem with the common law argument, as he conceded, is that someone is required to go to court to take the law on and test the case. Libel and defamation cases are hugely expensive. I and many hon. Members are trying to ensure first that the law is clearer, and secondly that we protect our constituents from having to go to court to assert their rights.

The hon. Member for Hayes and Harlington (John McDonnell) argued for a differential test for those in public life and those not in public life. Those of us in public life are much better equipped and able to go to law if we want to do so. If the bar were to be lower for people in public life, so the capacity to respond would also be easier. I do not necessarily accept that that is where we want to go, but that is another debate. The bulk of my constituents and the hon. Gentleman’s are not in a position readily to go to court to defend their interests, and nor could they get an adequate remedy. The new clause therefore seeks to find a remedy outside the courts.

I hear what my hon. Friend the new Minister says about the level of evidence needed to establish malice, and therefore understand that we need to have a debate on that. However, I am encouraged by the fact that she and her colleagues are willing to draw breath, as it were, and to look at the arguments as they have been presented and at the unanswered questions that both current and previous Ministers have said they will address.

There is one last thing to say before asking the House for leave to withdraw new clause 4. Will Ministers look at the big question of the timetable for the Bill, and particularly this part of it, in the light of the Leveson report? We need to ensure that we are seen to be legislating carefully, but we would perhaps make ourselves look foolish if we tried to legislate this year or a few months into the next year in the certain knowledge that we would need to return to the matter. The House and the Government should reserve a space to legislate in the light of Leveson. It would be unacceptable for anybody in the months ahead to put the argument that we cannot return to the matter because we have addressed it in the Bill.

I suggest to the right hon. Gentleman and the parties that there should be a discussion on the process through the usual channels. I agree that the Bill could be completely abortive, and that we would look ridiculous if we returned to it so soon after it was passed. There is potential for an agreed discussion on the timetable between the parties.

It is vital that the other place slows the Bill down because it is in lock-step with Leveson. There is complete and utter parallelity or parallelness between the two—[Laughter.] Hansard can sort that out. I strongly second what the right hon. Gentleman says.

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.

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.

Amendments made: 5, page 3, line 33, at end insert—

‘(3A) For the purposes of subsection (3)(a), it is possible for a claimant to “identify” a person only if the claimant has sufficient information to bring proceedings against the person.’

Amendment 6, page 4, line 9, at end insert—

‘(10) The defence under this section is not defeated by reason only of the fact that the operator of the website moderates the statements posted on it by others.’—(Mrs Grant.)

Clause 10

Action against a person who was not the author, editor etc

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.

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.

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.

I hear what the Minister says. However, I urge her to consider the amendment again, if I am not successful in the Division I shall now seek.

Question put, That the amendment be made.

Third Reading

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

I am pleased to be here for this Third Reading debate. I thank my two colleagues, the Under-Secretaries of State for Justice, my hon. Friends the Members for Maidstone and The Weald (Mrs Grant) and for Kenilworth and Southam (Jeremy Wright), for their role in the debate so far, and for picking up the subject so quickly. We have all been in our jobs for only a few days. I also look forward to sparring with the shadow Secretary of State, the right hon. Member for Tooting (Sadiq Khan), in the Chamber over the coming months. I pay tribute to Members for the quality of today’s debate, which has been constructive. These are serious matters and we need to get them right.

The Bill has now proceeded through its scrutiny stages in this House. The issues that it addresses go to the core of what it means to live in a free and open society. The right to speak freely and to debate issues without fear of censure are a vital part of a democratic society. However, that freedom should not be used to damage the reputation of others without regard to the facts. Lives and careers can be destroyed by false allegations that go unanswered. The issue for our defamation laws is ultimately one of striking the right balance between the protection of freedom of expression and the protection of reputation.

The Bill reflects our view that the law is out of kilter, and that our defamation regime is out of date, costly and over-complicated. It needs urgent reform so as to offer more effective protection for freedom of speech and to stop the threat of long and costly libel proceedings being used to stifle responsible investigative reporting and scientific and academic debate. We also need to stop powerful interests overseas with little connection to the United Kingdom using the threat of British libel laws to suppress domestic criticism as part of libel tourism.

Equally, it is vital to ensure that people who have been defamed are not left without effective remedies when their reputation has been seriously harmed. It would not do to move from one extreme to the other, with sensible reform of the law giving too much licence to those who exercise freedom of expression without responsibility. The core aim of the Bill is therefore to ensure that the right balance is achieved, so that free speech is not unjustifiably impeded by actual or threatened libel proceedings, but so, too, that people who have been defamed are able to protect their reputation.

I am grateful to all right hon. and hon. Members who have taken part in the Bill’s scrutiny, not only this afternoon but on Second Reading and in Committee. I welcome the support that has been expressed from all parts of the House, during the debate today and at earlier stages, for the principles underlying the Bill and the need for reform. Inevitably, there are differences of opinion on the detail, many of which have been expressed today.

I would like to use this opportunity to explain again the Government’s approach and our position on a number of key issues. In the light of our core aim, the Bill contains a range of measures aimed at supporting freedom of expression. One of our central objectives has been to ensure that trivial and unfounded actions for defamation do not succeed. Clause 1 therefore provides that, for a statement to be defamatory, it must have caused, or be likely to cause, serious harm to the reputation of the claimant. That test raises the threshold for claims, and represents a higher hurdle than the one that currently applies. This will help to discourage trivial claims, while ensuring that claimants can still take effective action to protect their reputation when it has been seriously harmed.

Other measures through which the Bill bolsters freedom of expression include: a single publication rule, which will mean that a publisher cannot be repeatedly sued for the same material; sensible action to address libel tourism, which has caused considerable harm to this country’s reputation around the world; and greater protection for website operators and for other secondary publishers, such as local booksellers and newsagents.

In addition to those general measures, the Bill takes specific steps to encourage robust scientific and academic debate by creating a new defence against libel for peer-reviewed material in scientific and academic journals, and by extending qualified privilege to reports of scientific and academic conferences. Given the work that my right hon. Friend the Minister for Universities and Science is doing to promote science in this country, the more we can send messages that we value scientific research in this country, the better.

The Bill provides simpler and clearer defences to those accused of defamation, and ensures that they are available outside mainstream media cases. One way in which that is achieved is through the creation of new statutory defences of honest opinion and truth to replace the existing common-law defences.

Alongside those new defences, the Bill introduces a new statutory defence of responsible publication in the public interest, which is based on the common-law defence that has been developed by the courts, initially in the case of Reynolds v. Times Newspapers, and more recently in cases such as Flood v. Times Newspapers. We recognise the concerns from differing perspectives that have been expressed about the measure, so let me reiterate a point that the Under-Secretary of State for Justice, my hon. Friend the Member for Maidstone and The Weald, made earlier. This ministerial team has come to these issues relatively freshly in the past few days. We are not closed-minded, and the important thing is to get this measure right. Although we did not accept the amendments that were considered today, I want to send a clear message that we are open to continued discussions. We are happy to table Government amendments in the other place if that would be appropriate and prudent to improve the quality of the Bill. I am not saying that we will accept every proposal on the table, but we are open to continuing discussions on the Bill and to making changes so that we try to ensure that we get it absolutely right.

Another focus of debate has been the provisions in clause 5 to deal with responsibility for publications on the internet, which is an aspect of our current regime that is genuinely in need of modernisation. Clause 5 gives a defence to website operators in relation to material posted by users of sites that they host. To maintain the defence, the operators will have to comply with a new procedure aimed at ensuring that complaints can be directed to the authors of the material—that is really important—but there must be protection for operators who are doing the right thing. We have made amendments to clarify a number of points of detail in the clause, and we will be seeking views on regulations to support the new process in due course.

Our approach will stop website operators from being unfairly exposed to liability in defamation proceedings while still encouraging them to behave responsibly. It will help freedom of expression by ensuring that material is not simply taken down without the author having an opportunity to express his or her views, which frequently happens now, but it will still ensure that people who have had their reputation seriously harmed online can take action against the person who is truly responsible, not the intermediary. In tandem with that, clause 10 will ensure that secondary publishers such as booksellers and newsagents are not unfairly targeted and that action is taken against the primary publisher whenever possible.

Let me be clear that while we are determined to protect and enhance freedom of expression, we are also determined to ensure that there is no free-for-all. This is not open season for making defamatory comments with no fear of redress. To ensure that a fair balance is achieved between the interests of claimants and defendants, it is important that effective remedies are available for those who have been defamed, so clause 12 adds to existing remedies by setting out provisions extending the courts’ existing power to order the publication of a summary of its judgment to ensure that, when appropriate, a meaningful public clarification can be given that a story was wrong.

I emphasise again our firm commitment to reducing the cost of defamation proceedings, which has been a barrier to people who have found themselves in problematic situations. Clause 11, which removes the presumption in favour of jury trial, will help with that by enabling key issues such as the meaning of allegedly defamatory material to be decided by a judge at an early stage. Allied with that, we are taking forward work on procedural changes to facilitate the early resolution of key issues, and we will be considering how best to encourage alternative means of resolving disputes, such as mediation, to encourage settlements and prevent unnecessary litigation.

I thank Opposition Members, especially the hon. Member for Stoke-on-Trent South (Robert Flello), for the measured way in which the Bill’s proceedings have been conducted. We will not agree about every aspect of the Bill, but such debates are valuable to ensure that we get this important measure right. The Bill’s consideration has been constructive and thorough. We think that the Bill sets out a balanced and fair package of measures that will allow debate on matters of public importance to thrive. We are open to continued debate and dialogue in the other place to ensure that we get the Bill right but, above all, we must make sure that we provide appropriate remedies for those who have been defamed.

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.

It is an honour to be the first Back Bencher called in this debate, Mr Speaker.

This is an important debate, and it is a privilege to have been able to follow the Bill from its early stages in Committee to Third Reading. I thank the many journalists and eminent lawyers, both practising and in academia, who have given me their valuable contributions along the way, as well as the benefit of their knowledge and expertise in this area.

Media law is a dynamic area of the law. Indeed, Lord Justice Leveson is due to report in the coming weeks on press ethics. Today we have seen the damage that the media can do. Earlier this afternoon, the Prime Minister made a statement to the House and informed right hon. and hon. Members that the headlines in The Sun in 1989 about Hillsborough were untrue. I am pleased that the then editor, Kelvin MacKenzie, has now issued an apology. It is my opinion that such comments should never have been made in the first place.

I have said previously in the House that reforming the law of defamation is of paramount importance. In fact, I was asked during the summer why the Defamation Bill was proceeding through this House, and I said that the law of defamation was case-driven. Indeed the definition of defamation is to be found in the 1936 case of Sim v. Stretch, in which Lord Atkin said:

“Would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally?”

If a judge is to interpret the will of Parliament, I think it only fair that we update the existing statute to reflect the will of Parliament, particularly given the emergence of the internet and social networking.

I am somewhat surprised that Lord Atkins’s definition of defamation has never been placed on a statutory footing, although I suspect lawyers would argue that that definition is well settled. The purpose of the Bill is not to have a chilling effect on the freedom of speech; it is about encouraging academics to publish their work without fear of defamation actions, and allowing journalists and broadcasters to report, as long as they do so in a responsible manner.

The Bill is about responsible publication, not about chilling publication. I made the point in Committee that images should be brought into the scope of the Bill. I am pleased that I have received confirmation that they are within its scope, as has been the case for some time in common law, namely in the case of Tolley v. J.S. Fry and Sons. Additionally, I have read the words of Lord Bridge in the Charleston case and recognise the important distinction, which he highlighted, that articles should be read as a whole. If a reader glances at a photograph and draws a conclusion, that does not make them a fair-minded reader.

I have previously stated in the House that I am an opponent of so-called libel tourism. For many years, libel tourism has been a burden on our civil legal system. Media lawyer Ursula Smartt said that

“in September 2010 the Daily Telegraph reported that libel challenges by actors and celebrities in the London courts had trebled over the past year.”

London has been described as the libel capital of the world. At the simplest level, libel tourism takes place when foreign citizens conduct actions against foreign citizens in British courts. Perhaps libel tourism is a result of the extraordinarily high damages that are often awarded. I am pleased that the Bill will make it difficult for litigants not based in the UK to bring actions to our courts. I am pleased that clause 4 incorporates the so-called Reynolds defence—a very useful defence that encourages investigative-style journalism. It is important as part of our democratic process that politicians and those who hold public office are held to account.

The right hon. Member for Bermondsey and Old Southwark (Simon Hughes) suggested that post-Leveson we might have to legislate in some of these areas if Lord Leveson recommends such new legislation. However, I will not presume to second-guess Lord Justice Leveson, and I await his report with interest.

This is a welcome Bill. I welcome the constructive approach of the new Secretary of State and his team and congratulate them on their appointments. The Bill will now go to another place, where we are rather more well provided with learned friends, the lawyers, who may have some thoughts on how it might have to be amended.

Nearly two years ago, in an exchange with the Secretary of State’s predecessor, the right hon. and learned Member for Rushcliffe (Mr Clarke), I asked:

“Do we not need a small claims court for libel cases which could quickly…at a low cost in damages and expenses deliver remedial justice, apology and correction?”—[Official Report, 29 March 2011; Vol. 526, c. 161.]

I very much hoped that this Bill would satisfy that request, but to be honest, it does not. It tidies up many of the problems to do with libel tourism and scientific publication that have caused a great deal of concern and brought together a big coalition of different campaigners who have influenced all parties. However, that does not allow the small person—what one patronisingly calls “the little man”—to have the quick, swift redress that exists in other countries when he has suffered a clear wrong in a newspaper. That is why the parallel work of Lord Leveson must be taken into consideration in the other place and when the Bill comes back here so that we have a complete package of reform that puts right many of the injustices that so many people have faced at the hands of a mixture of very powerful media oligarchs and legal oligarchs.

I want particularly to refer to the problem of libel tourism. Right now, there is an ongoing case initiated by a Mr Pavel Karpov, who is a 35-year-old Interior Ministry employee in Russia. He was involved in the sequence of events that led to the death of Sergei Magnitsky, which has attracted much attention in this House. Through a unanimous resolution of the House of Commons, it has been decided that he and 59 other named Russian officials should not be allowed to enter Britain, although the Foreign Office and the Home Office are still equivocating on that. On 1 August, Mr Karpov filed an action in the High Court against William Browder, who is a British citizen, and Jamison Firestone, who is an American citizen resident in the United Kingdom—Sergei Magnitsky’s former boss and direct boss respectively—in order to silence them in their campaign to bring about justice for Mr Magnitsky. Pavel Karpov has hired Geraldine Proudler, the partner and head of the reputation and media litigation practice at Olswang, at roughly £600 an hour, when he himself earns $600 a month. He has hired Andrew Caldecott QC—

Order. May I ask the right hon. Gentleman to confirm that the cases that he is describing are not the subject of active proceedings?

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.

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?

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.

I am not sure whether this is the appropriate time, but I am sure that the whole House would like to join me in congratulating my hon. and learned Friend on his knighthood.

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.

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?

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.

The concept of forum non conveniens—I think that is the Latin phrase—is quite well known. An employee of the Russian state has been accused in this House by a Commons resolution of being linked to the murder of someone employed by a British firm. He earns $600 a month but is hiring the most expensive QC, lawyer and media company to sue a British citizen in connection with a huge international scandal. This week, the United Congress will pass its “Justice for Magnitsky Act”, banning Mr Karpov and 59 other named people. That has nothing to do with protecting reputation; it is a cynical abuse of London’s reputation in which any lawyer can be brought to defend anybody on any cause.

I do not want to descend into the right hon. Gentleman’s difficulties with lawyers and he will have to sort out his own problems. If the courts find that the claimant referred to by the right hon. Gentleman has no proper basis for bringing a case in this country, they will knock the case out. That applies to contract, privacy, defamation and any other cause of action. I am looking for a proper assessment of the dangers and damage that could be caused to our integrity as a jurisdiction by the use of our courts by overseas litigants. I think such danger is wildly exaggerated and that the ability of our courts to discipline those hopeless cases is underestimated, so I hope we can deal with the issue in a calm and sensible way between now and Third Reading in the other place.

I wish the Bill well as far as it goes. I hope that tonight’s proceedings are not controversial and that we do not have a Division, as that would be unnecessary and unhelpful. I look forward to listening to or reading the debates in the other place, and trust that when the Bill is returned to this House—if it is returned—it will be improved. Surely that is what we expect of the parliamentary process. This is not a politically controversial piece of legislation; it is deeply technical and, some would say, rather tedious. I wish the Bill well, however, and I repeat my congratulations to the Lord Chancellor and Secretary of State for Justice and his two colleagues.

I, too, welcome the new Secretary of State, but I do not want to forget the outgoing Secretary of State, the long-lasting, right hon. and learned Member for Rushcliffe (Mr Clarke), who ensured that the Government found time for the Bill in their manifesto commitments. I am sure that all Labour Members wish him well in his new roving role. We hope that he ruffles feathers across the Government in his inimitable way.

The Bill is welcome and has much to commend it, including giving scientific and medical communities protection from abuse of our libel laws in order to stifle debate and proper investigation. When our libel laws have been used and abused in the past, it was often by large corporations. The action brought by Tesco four years ago against The Guardian was perhaps the starkest case in recent times of an inequality of arms. The main ambition of the determinant litigant was not really to settle, but expensively to bog down the newspaper and its journalists for as long as possible, as a warning to it and others in the future.

The Bill does not address corporation suing, and we have heard from the hon. and learned Member for Harborough (Mr Garnier) about some of the anomalies regarding who can and cannot sue. I hope that those issues will be looked at afresh when the Bill proceeds to the other place.

The Bill does not include an explicit early strike-out clause to ensure that actions with no merit, that are designed to chill and intimidate at maximum cost, do not proceed. The devil is in the detail of how the courts operate. It is therefore a shame that we do not have the changes to the civil procedure rules that we need to give effect to many of the intentions of the Bill, as the Joint Committee on the draft Bill recommended.

We have discussed conditional fee agreements. As I have said throughout years of trying to bring about sensible libel reform, including via a long inquiry by the Culture, Media and Sport Committee, of which I am a member, it was never intended that success fees should be abolished in their entirety. Given the behaviour of some parts of our press, there is a real problem with access to justice, and reputations are unfairly ruined. I hope their lordships and the House return to that.

As the Bill proceeds, we might have the benefit of Lord Justice Leveson’s detailed thoughts on other issues, such as on a low-cost body or tribunal to settle libel disputes quickly and more cheaply, and on how the Bill might be amended to incentivise the use of such a forum.

Finally, I should like to thank everyone who has helped to inform the debate and me, including the Libel Reform Campaign, Index on Censorship, Sense about Science and English PEN. I also thank a small group of serious, superbly professional journalists and progressive lawyers who work at the coal face and who have given me and other hon. Members invaluable comments and insights. The lawyers include Hugh Tomlinson and Heather Rogers QC, Tamsin Allen of Bindmans LLP, Mark Thomson of Atkins Thomson, Robin Shaw of Davenport Lyons, and Michael Nathanson of Thrings, who represents booksellers. The journalists who have been helpful to me include David Leigh of The Guardian, and my former colleague on The Observer—the doyen of investigative journalism, if I might call him that—the legendary Michael Gillard Senior, who has done so much to advance the cause of responsible investigative journalism in this country over many years.

I also thank the ministerial team for the way in which the debate has been conducted, my hon. Friend the Member for Stoke-on-Trent South (Robert Flello) and my right hon. Friend the Member for Tooting (Sadiq Khan), and the hon. Member for Huntingdon (Mr Djanogly) for all the work he put into the Bill.

I welcome the assurances that the new team have given on their open mind. I hope their lordships seize on that assurance, because the test of the Bill is whether the abuses that hon. Members have highlighted can happen again. If they can, we need to return to the nitty-gritty and ensure that they cannot.

I join hon. Members in thanking the outgoing ministerial team and the former Secretary of State for Justice for their collaboration and work; I congratulate them on that. I also congratulate the new team on their appointment, particularly the new Secretary of State, whom we very much welcome to his responsibilities. As the shadow Secretary of State said, the Conservatives, the Liberal Democrats and the Labour party went into the last election with a commitment to reform defamation and libel law. That commitment was satisfactorily reaffirmed in the coalition agreement. There is consensus that the one thing we must deliver this Session is reformed libel law along the lines of the Bill. We have made good progress, but there is general agreement that we are not completely there yet.

I share exactly the view expressed by the new Secretary of State on why we need the Bill. We need to uphold the rights of freedom of expression, in particular for journalism, and to encourage good journalism, including good investigative journalism, in the process. Journalists should not be afraid of exposing what they need to expose in the public interest. We also need to ensure that ordinary people are protected against poor and misrepresenting journalists, who ruin reputations in such a way that they cannot be recovered. That is the balance we need to strike.

After the election, my noble Friend Lord Lester of Herne Hill was pivotal in putting the matter on the agenda. Both Houses have worked hard through the Joint Committee to make progress, and the Government picked up many, but not all, of its suggestions. My party has twice in the last year looked at the matter at our conferences: to ensure that we have methods for resolving disputes—built into the legislation, if possible—so that if, for example, untrue defamatory statements are propagated, they can be withdrawn without everything having to go through the courts; and to ensure that we enhance our freedom in this country, not reduce it.

There are three matters left to look at, as part of the ongoing debate. One is whether the current processes in the law on early strike-out are sufficient. I heard what the Minister said, but that remains an issue. We want to be able to get rid of nonsense cases—our hon. Friend the Member for Worthing West (Sir Peter Bottomley) made the case powerfully—to stop them clogging up the courts. We need to see whether we have adequate processes to do that. Secondly, we need to ensure that the public interest defence works appropriately. That is probably the most difficult and controversial area to get right. I am grateful that Ministers have said that they are willing to look broadly at the issues again. Lastly, there is the controversial question of whether the law should protect only individuals or also corporations, and, if so, how. I have no doubt that we shall return to that issue.

We now have some time after Third Reading before the Bill goes to the Lords. We will engage with people in the other place. We need to pause to ensure that when Lord Justice Leveson reports we do not confuse things in taking the Bill to the statute book, while at the same time picking up all the proposals he makes. Many people have helped us in the campaign to get libel law reformed, not least the Libel Reform Campaign. We thank them and look forward to continuing to work with them. The work is not completed, but a lot of good work has been done and there is general good will about ensuring that, for the first time in a generation, we bring the libel laws up to date for a modern Britain, in a modern world of communication, but where freedom of speech remains something of which we can be justifiably proud.

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.

It was the late Enoch Powell who was first quoted in The Guardian, in December 1984, as saying:

“For a politician to complain about the press is like a ship’s captain complaining about the sea.”

I hope that all these assurances can be given in the other place. My concern is that the freedom of the press should be maintained and not curtailed, but one would hope that alongside that there was a recognition by the press that with that freedom comes responsibility. We have to acknowledge that the curse of Murdoch has dumbed down British journalism over the past four decades, to the extent that Private Eye is now more accurate and reliable than many newspapers.

I should declare an interest. For a few weeks in 1973 I was a sub-editor on The Sun, then newly acquired by Murdoch and pre-page 3, and that was between jobs as a sub-editor on the former London Evening News and the London Evening Standard. I come from a background of journalistic training where standards were high. In the National Council for the Training of Journalists and in good old-fashioned news gathering there were very high standards. Some 44 years ago I was editor of the Maldon and Burnham Standard, a weekly newspaper in Essex, and before that I was secretary of the north Essex branch of the National Union of Journalists. I mention that because there is no doubt in my mind that journalism is not as strong or as good as it used to be, but that is still no excuse for legislation that could be interpreted as an attack on the free press. I sincerely hope that will not be the case.

Those of us who enter public life must accept that we will be attacked and criticised. I do not think that any of us object to that, provided that we know who is doing the attacking and criticising and that the attacks and criticisms are valid or at least have some merit. Madam Deputy Speaker, you might be aware that last Wednesday I raised a point of order with Mr Speaker about a false Twitter account that had been set up to impersonate me. It was used by someone with a sick, evil and warped mind to make a range of vile comments, such as the inference that I was a paedophile or had paedophile tendencies, which is not very pleasant. I was very grateful for Mr Speaker’s observation that that was unacceptable behaviour and a form of harassment. I am therefore pleased that the Bill includes measures that—I hope—will deal with social media.

When I made my point of order, I said that the Twitter account had to be viewed in the context of three years of dirty tricks against me in Colchester by three immature young men. That included a spoof YouTube video of me, a snooper photograph and letters to newspapers with false names and addresses. With regard to the latter, I have written to Lord Justice Leveson to suggest that one of his recommendations should be that, when a newspaper has been shown to have published in good faith a letter that is subsequently found out to have come from someone who gave a fictitious name and address, the person who has been wronged, as I have been on several occasions, should be given not only an apology by the newspaper, but a right of reply. In fairness, on those occasions when I have been able to take the issue up, I have been given the opportunity to reply.

As a former editor of a weekly newspaper, I argue that the onus is on the newspaper to establish the authenticity of the person who has written the letter. When an attack is made on a public figure, such as an MP or the chairman of a football club, there is an even greater onus on the newspaper to check that the person exists. I have no problem with genuine people having genuine concerns. That is something I hope Lord Justice Leveson will include in his recommendations—

Order. I have allowed the hon. Gentleman to make his case, but we are supposed to be debating Third Reading of the Defamation Bill. References to the Lord Leveson inquiry may be made, but the hon. Gentleman needs to come back to discussing the Bill; he should focus specifically on that.

I think, Madam Deputy Speaker, that defamation takes many forms, and when it is in the printed form, I think the person who has been defamed should have the right of reply. In my case, the author of all the things I referred to is a gentleman called Darius Laws, who is a member of another political party.

Question put and agreed to

Bill accordingly read the Third time and passed.