One of the first questions raised with me by a constituent when I was first elected some 20 years ago was this: who gave the authority to start the misinformation through the police to the media and so on? Is the Prime Minister satisfied that he can identify those persons, and those

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persons who were subsequently involved in the cover-up to protect the person who started the misinformation? That is a key question. The hon. Member for Suffolk Coastal (Dr Coffey) put it exactly right: there ought to be prosecutions on that point.

The Prime Minister: The hon. Gentleman asks the right question. It is necessary to study the report. The families have long believed that, although the Taylor inquiry came to the correct conclusion about police culpability, there was then a move engineered by some police officers—I believe there is evidence in the report about this—to try to put forward an alternative narrative, which was wrong, deeply insulting and very hurtful. That and new evidence on it is contained in the report, which is worth while.

Yasmin Qureshi (Bolton South East) (Lab): I echo the sentiments of the statements of the Prime Minister and the Leader of the Opposition, and thank my right hon. Friend the Member for Leigh (Andy Burnham) for setting up the inquiry. Those who have died cannot come back, but does the Prime Minister agree that their families can be assisted by two things at least? First, although I accept that politicians cannot make the emergency services and public officials apologise, perhaps the Prime Minister could ask the Mayor of London for an apology for the derogatory comments he made about the people of Merseyside many years ago as a result of the Hillsborough disaster. Secondly, in the light of the clear dereliction of duty and negligence by the emergency services and the police, will the Prime Minister consider setting up a compensation fund to make ex gratia payments to the victims’ families, so that they do not have to go through a lengthy legal process to get compensation?

The Prime Minister: The hon. Lady makes a number of points. On what the Mayor of London or others have said, the report is important. As I have said, for people right across the country, whether they are in positions of power and influence or not, the report is the proper explanation of what happened. People who thought that something else happened need to come to their senses and realise what actually happened. One of the moments that struck me in trying to understand what happened was when the right hon. Member for Leigh (Andy Burnham) gave that address to the fans on that anniversary. When those of us who are not from Merseyside and who have not followed this as closely as others saw just how many people turned out on that day, we also saw just what an enormous sense of outrage and injustice remained. That was an important moment. It is now for others to understand that the truth is out. Everyone needs to come to terms with it and to make the right arrangements.

Mr David Hanson (Delyn) (Lab): I thank the Prime Minister and my right hon. Friend the Leader of the Opposition very deeply for their comments and apologies, and my right hon. Friend the Member for Leigh (Andy Burnham) for establishing the inquiry in the first place. It will come as some comfort to the families of my constituents who died at Hillsborough on that day.

The issue of accountability is central to the debate today. Has the Prime Minister had any indication as yet on which police force could take forward any future

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investigation? What process does he expect to undertake to bring to account those who have allegedly taken part in criminal activity?

The Prime Minister: I thank the right hon. Gentleman for his question, but we received the report at 9.30 am, so it clearly has not been possible to make those considerations. The Government often—not always—get a public inquiry report and are able to consider it and put more into lining up all the elements that must come next. In this situation, the report was rightly given to the families first. I have had time for a very brief look and some explanation, but the sort of questions he asks will take longer to answer.

Mr David Anderson (Blaydon) (Lab): In welcoming the Prime Minister’s statement and thanking him and the Leader of the Opposition for what they have said, may I raise one point with the Prime Minister? He has mentioned “new evidence” and “new documentation” a number of times, but the truth is that it is not new—the vast majority was old but buried and concealed. We have heard that the Prime Minister at the time was advised by her private secretary that

“the defensive and…‘close to deceitful’ behaviour of senior South Yorkshire officers was ‘depressingly familiar.’”

We have also been told that the report says that no Government have tried to conceal the truth. The real question for politicians is this: what failures did politicians create in not trying to expose the truth?

The Prime Minister: Absolutely. The hon. Gentleman has put his finger on it. When I said “new evidence”, I suppose I meant “newly published evidence”. The inquiry has not uncovered things that did not previously exist—they existed but were not published, so their publication is what is new today. The really important point he makes will take careful consideration, and those in government at the time will want to think this through and provide their own answers. The sense I get from the limited look I have had at the report is that advice went to Ministers that the behaviour was “depressingly familiar” and that the chief constable should resign. The question then is whether the output of that advice resulted in enough action by that Government and subsequent ones to blow away the false narrative that was building up. That is a very important question that people will want to consider.

Chris Bryant (Rhondda) (Lab): The Prime Minister has done a good thing today and he has done it well. Surely to God the role of the media should have been to uncover the corruption and the lies, and not to try to mask the corruption in the police or effectively to perpetuate it. I know the Prime Minister is very reluctant to tell people who should make apologies, but I have tried so many times on television and radio programmes to get Kelvin MacKenzie just to say the simple word “sorry” unambiguously, because every ambiguous apology hurts more than saying nothing. Surely to God The Sun tomorrow should just say sorry. Surely to God Kelvin MacKenzie, if he is to go on any media outlet at all, should be saying sorry. For that matter, surely The Spectator should say sorry too.

The Prime Minister: I thank the hon. Gentleman for his kind remarks. We should not forget that some media publications stood up for the families, examined the issue and helped to get to the truth. We should therefore

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not try to blacken the name of everyone in one go. Clearly,

The Sun

has always been up there because of that appalling article—“The Truth”—and the appalling things written in it. My view is that Kelvin MacKenzie needs to take responsibility for that and he should be very clear about it, but it is for others to decide. My understanding is that

The Sun

and the police have apologised in the past. Lots of apologies have been made, but the point is that we now have a definitive guide to what happened. Now is the time for not only the proper, heartfelt “I’m sorry”, but the “Here’s what I got wrong and here’s what I regret.” It is like what we say when we deal with our children: sorry is not good enough unless people understand what they screwed up in the first place.

Kevin Brennan (Cardiff West) (Lab): It is clear from the Prime Minister’s welcome and important statement that the prevailing cultures in the Murdoch press, the police, and health and safety, played their part in the disaster and the injustice that followed. Will the Prime Minister undertake to reflect soberly and seriously on health and safety to ensure that there is never a return to the slack culture that led to this tragedy?

The Prime Minister: The hon. Gentleman makes an important point. When we talk about trying to deregulate and take small businesses out of health and safety, it is not to say that we do not need higher standards of safety when there are important issues such as large crowds in big public gatherings. However, in recent years, we have had too much form over substance. What really matters in health and safety is the substance and looking at real risks rather than thinking that some micro-business that has nothing to do with health and safety needs the same sort of regulation as a football ground.

Tom Greatrex (Rutherglen and Hamilton West) (Lab/Co-op): I welcome the important statements from the Prime Minister and the Leader of the Opposition this afternoon. Notwithstanding the point that the Prime

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Minister made about the process, may I reiterate to him the inadequacy of the inquest? Up to 59 of those 96 people could have had a different outcome, judging by the statement he has made today. The people who have been affected will not feel a sense of justice being begun to be done while that flawed, inadequate and shoddy inquest remains on the record.

The Prime Minister: The hon. Gentleman makes an important point. There is an entire chapter in the report—chapter 8—on the coroner’s inquiry. There is also an additional entire chapter on the 3.15 cut-off—which is an important point that hon. Members will want to look at carefully—and it seems, from a preliminary reading, to be extremely powerful.

Jim Shannon (Strangford) (DUP): I thank the Prime Minister for his statement and for speaking not just for the Government, but for the whole of the United Kingdom of Great Britain and Northern Ireland. We are deeply indebted to him for that. I was aware of some of the issues, but on TV this morning there was one lady who had lost two children and another lady who had lost one child. The rawness of what took place 23 years ago was clear in their faces, and it is clear from the families of the 96 victims, who live with the grief of what took place. Whenever another inquiry or inquest takes place, as it will, what assurance can the Prime Minister give the House that the sensitivity that is needed for the families, who are still grieving today, 23 years later, will be ensured?

The Prime Minister: The hon. Gentleman makes an important point, and I am sure that the Attorney-General, the Home Secretary and others will listen closely to it. If the decision to hold a fresh inquest goes ahead, clearly an enormous amount of thought would have to be put into where it is held, how it is held and how to deal with what are incredibly sensitive issues after 23 years. The hon. Gentleman is absolutely right to raise that, and if that were to happen, we should discuss it nearer the time.

Mr Speaker: I thank the Prime Minister and all colleagues for their participation.

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Coroners and Justice (Amendment)

Motion for leave to bring in a Bill (Standing Order No. 23)

1.51 pm

Sir Paul Beresford (Mole Valley) (Con): I beg to move,

That leave be given to bring in a Bill to amend section 62 of the Coroners and Justice Act 2009 to apply additionally to the possession of prohibited written material about children; to make consequential amendments to the Act; and for connected purposes.

Section 62 of the Coroners and Justice Act 2009 is entitled “Possession of prohibited images of children”. Such images are pornographic. I wish to add as a prohibition the possession of child abuse pornography in the form of the written word. Some years ago, I went through one of the early parliamentary police programmes with the London Metropolitan police. I highly recommend the course. I spent one day, however, with what the Daily Mail and similar call the paedophile unit. It was a shock. I could not believe that people could do such appalling things to children, including babies. I found the police estimate of active paedophiles in the UK way beyond anything I could have possibly imagined, and I was stunned that approximately 20%, they thought, were female.

Following the course, I had a meeting with the full Metropolitan team, at which it became apparent that some major and minor legal changes were required. I became a member of the then Home Office taskforce, which led to the Sexual Offences Act 2003, which introduced the offence of child grooming. Additionally—either on my own or with others, and with the co-operation of the Government of the day—I have helped to introduce about a dozen changes. As a Home Office Minister, the right hon. Member for Wythenshawe and Sale East (Paul Goggins) was particularly sympathetic and helpful, which explains why he is down as my only backer—although I would expect a considerable following if I asked other Members across the House.

This small Bill would close what I believe to be a loophole and an anomaly. It is illegal to possess indecent images of children. The Child Exploitation and Online Protection Centre—CEOP—has just published a research document on that very topic. Mentioned in the report,

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albeit almost as a sideline, is the fact that some offenders not only possess, distribute and produce photographs, but possess graphic notes or writings of child abuse. For some, the written word is more powerful than pictures. For some, the written word promotes a graphic image in their minds. I have long been aware of the correlation between those who possess or distribute indecent printed material of children and those who commit horrific contact offences against children. Such written material fuels the fantasies of paedophiles, which is a key factor in their offending behaviour. It is therefore vital that we crack down on any form of indecent material in the written form, so that real children can be saved from abuse.

I was shown some examples of such material by then Detective Chief Inspector Dave Marshall, who is a nationally renowned expert in this area. On looking at such material, anybody would see that I am not referring to writings such as “Lolita”. The written material that I am targeting today is absolutely vile. Indeed, it can be as shocking as images described as level 5, based on the classification used by courts when sentencing for the offence of possessing indecent images of children. Section 62 of the 2009 Act describes prohibited images as

“pornographic…grossly offensive, disgusting or otherwise…obscene,”

and

“of such a nature that it must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal.”

That description also applies to the written word that I am targeting. I believe that, interestingly, the distribution of such material is already prohibited, but possession is not. It should be.

I understand that there is some concern that any change along the lines that I am considering will contravene EU legislation. However, a number of our EU partner countries have just such legislation now. If it works for them, it should work for us.

Question put and agreed to.

Ordered,

That Sir Paul Beresford and Paul Goggins present the Bill.

Sir Paul Beresford accordingly presented the Bill.

Bill read the First time; to be read a Second time on Friday 19 October, and to be printed (Bill 68).

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Defamation Bill

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.

1.57 pm

The Parliamentary Under-Secretary of State for Justice (Jeremy Wright): I beg to move, That the clause be read a Second time.

Mr Deputy Speaker (Mr Lindsay Hoyle): 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.

Jeremy Wright: 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

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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

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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.

Mr Denis MacShane (Rotherham) (Lab): 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.

Jeremy Wright: 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.

Helen Goodman (Bishop Auckland) (Lab): 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

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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.

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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.

2.15 pm

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.

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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

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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.

Simon Hughes (Bermondsey and Old Southwark) (LD): 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.

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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.

2.30 pm

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

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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.

Paul Farrelly (Newcastle-under-Lyme) (Lab): 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.

Jeremy Wright: 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

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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—

Robert Flello (Stoke-on-Trent South) (Lab): The hon. Gentleman was not in Committee.

Jeremy Wright: 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

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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

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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.

2.45 pm

Mr MacShane: 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.

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

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

Jeremy Wright: My hon. Friend raises some fair questions. I know that he will forgive me if I do not litigate a case that may or may not have happened 22 years ago. As he knows, there is various case law on these issues as they affect public authorities and defamation—if he will forgive me, I will not go down that road. However, I will urge the hon. Member for Bishop Auckland not to press amendment 7—

Paul Farrelly rose

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Jeremy Wright: Before doing so, I will give way, one last time, to the hon. Gentleman.

Paul Farrelly: 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.

Jeremy Wright: 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.

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

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

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

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

Conditional fee agreements, also known as no win, no fee agreements, were first made possible in personal injury cases by secondary legislation under the Courts and Legal Services Act 1990 and were introduced in

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1995. They were meant to provide greater access to justice for those who did not qualify for legal aid but were unable to afford legal representation. Defamation cases were never covered by legal aid.

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

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

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

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

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

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

Sylvia Henry was a social worker who was wrongly accused of being negligent in the Baby P case. As a consequence, she was horrendously defamed and banned

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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.

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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.

3 pm

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.

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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.

Mr Edward Garnier (Harborough) (Con): 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.

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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.

Paul Farrelly: 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.

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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?”

Gloria De Piero (Ashfield) (Lab): 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?

Paul Farrelly: 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.

Simon Hughes: 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

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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.

3.15 pm

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.

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

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

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

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

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

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

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

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

Jeremy Wright: May I begin by expressing pleasure at seeing my hon. and learned Friend the Member for Harborough (Mr Garnier)—if he is not a right hon. Gentleman, he should be—in the Chamber, as he brings

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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

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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.

Robert Flello: 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

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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.

3.30 pm

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.

Jeremy Wright: 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.

Robert Flello: 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.

12 Sep 2012 : Column 333

The House divided:

Ayes 198, Noes 273.

Division No. 64]

[3.34 pm

AYES

Abbott, Ms Diane

Ainsworth, rh Mr Bob

Alexander, rh Mr Douglas

Alexander, Heidi

Ali, Rushanara

Allen, Mr Graham

Bailey, Mr Adrian

Bain, Mr William

Banks, Gordon

Barron, rh Mr Kevin

Beckett, rh Margaret

Begg, Dame Anne

Benn, rh Hilary

Benton, Mr Joe

Betts, Mr Clive

Blears, rh Hazel

Blenkinsop, Tom

Blomfield, Paul

Bradshaw, rh Mr Ben

Brennan, Kevin

Brown, Lyn

Brown, rh Mr Nicholas

Brown, Mr Russell

Burden, Richard

Byrne, rh Mr Liam

Campbell, Mr Alan

Campbell, Mr Ronnie

Caton, Martin

Clarke, rh Mr Tom

Clwyd, rh Ann

Coaker, Vernon

Coffey, Ann

Crausby, Mr David

Creagh, Mary

Creasy, Stella

Cruddas, Jon

Cryer, John

Cunningham, Alex

Cunningham, Mr Jim

Cunningham, Sir Tony

Curran, Margaret

Dakin, Nic

Danczuk, Simon

Darling, rh Mr Alistair

David, Wayne

Davidson, Mr Ian

Davies, Geraint

De Piero, Gloria

Denham, rh Mr John

Dobbin, Jim

Dobson, rh Frank

Docherty, Thomas

Dodds, rh Mr Nigel

Doran, Mr Frank

Dowd, Jim

Doyle, Gemma

Dromey, Jack

Durkan, Mark

Eagle, Ms Angela

Edwards, Jonathan

Efford, Clive

Ellman, Mrs Louise

Esterson, Bill

Evans, Chris

Farrelly, Paul

Field, rh Mr Frank

Fitzpatrick, Jim

Flello, Robert

Flint, rh Caroline

Flynn, Paul

Fovargue, Yvonne

Francis, Dr Hywel

Gardiner, Barry

Glass, Pat

Glindon, Mrs Mary

Goodman, Helen

Green, Kate

Griffith, Nia

Gwynne, Andrew

Hain, rh Mr Peter

Hamilton, Mr David

Hanson, rh Mr David

Harman, rh Ms Harriet

Harris, Mr Tom

Healey, rh John

Hendrick, Mark

Hepburn, Mr Stephen

Hermon, Lady

Hillier, Meg

Hilling, Julie

Hodge, rh Margaret

Hood, Mr Jim

Hopkins, Kelvin

Howarth, rh Mr George

Hunt, Tristram

Irranca-Davies, Huw

Jackson, Glenda

Jamieson, Cathy

Jarvis, Dan

Johnson, rh Alan

Johnson, Diana

Jones, Graham

Jones, Helen

Jones, Mr Kevan

Jones, Susan Elan

Jowell, rh Dame Tessa

Kaufman, rh Sir Gerald

Keeley, Barbara

Kendall, Liz

Khan, rh Sadiq

Lammy, rh Mr David

Lavery, Ian

Leslie, Chris

Lewis, Mr Ivan

Llwyd, rh Mr Elfyn

Long, Naomi

Lucas, Ian

MacShane, rh Mr Denis

Mactaggart, Fiona

Malhotra, Seema

Mann, John

Marsden, Mr Gordon

McCann, Mr Michael

McCarthy, Kerry

McClymont, Gregg

McDonagh, Siobhain

McDonnell, Dr Alasdair

McDonnell, John

McFadden, rh Mr Pat

McGovern, Jim

McGuire, rh Mrs Anne

McKechin, Ann

McKenzie, Mr Iain

McKinnell, Catherine

Meale, Sir Alan

Mearns, Ian

Michael, rh Alun

Miliband, rh David

Miller, Andrew

Mitchell, Austin

Moon, Mrs Madeleine

Morden, Jessica

Morrice, Graeme

(Livingston)

Morris, Grahame M.

(Easington)

Mudie, Mr George

Munn, Meg

Murray, Ian

Nandy, Lisa

Nash, Pamela

O'Donnell, Fiona

Onwurah, Chi

Osborne, Sandra

Paisley, Ian

Pearce, Teresa

Phillipson, Bridget

Pound, Stephen

Qureshi, Yasmin

Raynsford, rh Mr Nick

Reeves, Rachel

Reynolds, Emma

Reynolds, Jonathan

Riordan, Mrs Linda

Ritchie, Ms Margaret

Robertson, John

Robinson, Mr Geoffrey

Roy, Mr Frank

Roy, Lindsay

Ruane, Chris

Ruddock, rh Dame Joan

Sarwar, Anas

Seabeck, Alison

Sharma, Mr Virendra

Sheerman, Mr Barry

Sheridan, Jim

Skinner, Mr Dennis

Slaughter, Mr Andy

Smith, rh Mr Andrew

Smith, Angela

Smith, Owen

Spellar, rh Mr John

Straw, rh Mr Jack

Stuart, Ms Gisela

Sutcliffe, Mr Gerry

Tami, Mark

Turner, Karl

Umunna, Mr Chuka

Vaz, rh Keith

Vaz, Valerie

Walley, Joan

Watson, Mr Tom

Watts, Mr Dave

Whitehead, Dr Alan

Williams, Hywel

Williamson, Chris

Winnick, Mr David

Winterton, rh Ms Rosie

Wood, Mike

Wright, David

Wright, Mr Iain

Tellers for the Ayes:

Phil Wilson and

Jonathan Ashworth

NOES

Adams, Nigel

Afriyie, Adam

Aldous, Peter

Andrew, Stuart

Arbuthnot, rh Mr James

Bacon, Mr Richard

Baker, Steve

Baldry, Sir Tony

Baldwin, Harriett

Barclay, Stephen

Baron, Mr John

Barwell, Gavin

Bebb, Guto

Beith, rh Sir Alan

Beresford, Sir Paul

Bingham, Andrew

Binley, Mr Brian

Blackwood, Nicola

Blunt, Mr Crispin

Boles, Nick

Bone, Mr Peter

Bottomley, Sir Peter

Brady, Mr Graham

Brake, rh Tom

Bray, Angie

Brazier, Mr Julian

Brine, Steve

Brokenshire, James

Brooke, Annette

Bruce, Fiona

Bruce, rh Sir Malcolm

Buckland, Mr Robert

Burley, Mr Aidan

Burns, rh Mr Simon

Burrowes, Mr David

Burstow, rh Paul

Burt, Lorely

Byles, Dan

Campbell, rh Sir Menzies

Carmichael, rh Mr Alistair

Carmichael, Neil

Carswell, Mr Douglas

Cash, Mr William

Clark, rh Greg

Clifton-Brown, Geoffrey

Coffey, Dr Thérèse

Collins, Damian

Crabb, Stephen

Crouch, Tracey

Davey, rh Mr Edward

Davies, Glyn

Davies, Philip

de Bois, Nick

Dinenage, Caroline

Djanogly, Mr Jonathan

Dorrell, rh Mr Stephen

Dorries, Nadine

Doyle-Price, Jackie

Duddridge, James

Duncan, rh Mr Alan

Dunne, Mr Philip

Ellis, Michael

Ellison, Jane

Ellwood, Mr Tobias

Elphicke, Charlie

Eustice, George

Evans, Graham

Evans, Jonathan

Evennett, Mr David

Fabricant, Michael

Fallon, rh Michael

Featherstone, Lynne

Field, Mark

Foster, rh Mr Don

Fox, rh Dr Liam

Francois, rh Mr Mark

Freeman, George

Freer, Mike

Fullbrook, Lorraine

Fuller, Richard

Gale, Sir Roger

Garnier, Mr Edward

Garnier, Mark

Gauke, Mr David

George, Andrew

Gibb, Mr Nick

Gilbert, Stephen

Gillan, rh Mrs Cheryl

Glen, John

Goodwill, Mr Robert

Gove, rh Michael

Graham, Richard

Grant, Mrs Helen

Gray, Mr James

Grayling, rh Chris

Greening, rh Justine

Grieve, rh Mr Dominic

Griffiths, Andrew

Gummer, Ben

Gyimah, Mr Sam

Halfon, Robert

Hames, Duncan

Hammond, Stephen

Hancock, Matthew

Hands, Greg

Harper, Mr Mark

Harrington, Richard

Harris, Rebecca

Hart, Simon

Hayes, Mr John

Heald, Oliver

Hemming, John

Henderson, Gordon

Hendry, Charles

Hinds, Damian

Hoban, Mr Mark

Hollobone, Mr Philip

Hopkins, Kris

Horwood, Martin

Howarth, Mr Gerald

Howell, John

Huhne, rh Chris

Hunt, rh Mr Jeremy

Hunter, Mark

Huppert, Dr Julian

Jackson, Mr Stewart

James, Margot

Javid, Sajid

Jenkin, Mr Bernard

Johnson, Gareth

Johnson, Joseph

Jones, Andrew

Jones, rh Mr David

Jones, Mr Marcus

Kawczynski, Daniel

Kelly, Chris

Kirby, Simon

Knight, rh Mr Greg

Kwarteng, Kwasi

Laing, Mrs Eleanor

Lamb, Norman

Lancaster, Mark

Lansley, rh Mr Andrew

Latham, Pauline

Laws, rh Mr David

Leadsom, Andrea

Lee, Dr Phillip

Leech, Mr John

Leslie, Charlotte

Lewis, Brandon

Liddell-Grainger, Mr Ian

Lidington, rh Mr David

Lilley, rh Mr Peter

Lloyd, Stephen

Lopresti, Jack

Lucas, Caroline

Luff, Peter

Lumley, Karen

Macleod, Mary

Main, Mrs Anne

Maude, rh Mr Francis

Maynard, Paul

McCartney, Jason

McCartney, Karl

McIntosh, Miss Anne

McLoughlin, rh Mr Patrick

McPartland, Stephen

Menzies, Mark

Metcalfe, Stephen

Mills, Nigel

Milton, Anne

Mitchell, rh Mr Andrew

Mordaunt, Penny

Morgan, Nicky

Morris, Anne Marie

Morris, David

Morris, James

Mosley, Stephen

Mowat, David

Mulholland, Greg

Munt, Tessa

Neill, Robert

Newmark, Mr Brooks

Norman, Jesse

Nuttall, Mr David

Offord, Dr Matthew

Ollerenshaw, Eric

Opperman, Guy

Ottaway, Richard

Paice, rh Mr James

Parish, Neil

Patel, Priti

Pawsey, Mark

Penrose, John

Percy, Andrew

Phillips, Stephen

Pickles, rh Mr Eric

Pincher, Christopher

Poulter, Dr Daniel

Prisk, Mr Mark

Pugh, John

Raab, Mr Dominic

Randall, rh Mr John

Reckless, Mark

Redwood, rh Mr John

Rees-Mogg, Jacob

Reid, Mr Alan

Robathan, rh Mr Andrew

Robertson, rh Hugh

Robertson, Mr Laurence

Rogerson, Dan

Rudd, Amber

Ruffley, Mr David

Russell, Sir Bob

Rutley, David

Sandys, Laura

Scott, Mr Lee

Selous, Andrew

Shapps, rh Grant

Sharma, Alok

Shelbrooke, Alec

Shepherd, Mr Richard

Simmonds, Mark

Skidmore, Chris

Smith, Miss Chloe

Smith, Henry

Smith, Julian

Smith, Sir Robert

Soames, rh Nicholas

Soubry, Anna

Spencer, Mr Mark

Stanley, rh Sir John

Stevenson, John

Stewart, Bob

Stewart, Iain

Stride, Mel

Stuart, Mr Graham

Stunell, rh Andrew

Sturdy, Julian

Swayne, rh Mr Desmond

Tapsell, rh Sir Peter

Thurso, John

Timpson, Mr Edward

Tomlinson, Justin

Tredinnick, David

Truss, Elizabeth

Turner, Mr Andrew

Tyrie, Mr Andrew

Uppal, Paul

Vaizey, Mr Edward

Vara, Mr Shailesh

Vickers, Martin

Walker, Mr Robin

Walter, Mr Robert

Ward, Mr David

Watkinson, Angela

Weatherley, Mike

Webb, Steve

Wheeler, Heather

White, Chris

Whittaker, Craig

Wiggin, Bill

Willetts, rh Mr David

Williams, Mr Mark

Williams, Roger

Williams, Stephen

Williamson, Gavin

Willott, Jenny

Wilson, Mr Rob

Wollaston, Dr Sarah

Wright, Jeremy

Wright, Simon

Young, rh Sir George

Tellers for the Noes:

Mr Robert Syms and

Karen Bradley

Question accordingly negatived.

12 Sep 2012 : Column 334

12 Sep 2012 : Column 335

12 Sep 2012 : Column 336

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,

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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.

3.45 pm

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

Mr Deputy Speaker (Mr Nigel Evans): 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.’.

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

I had a few days off in August. I tried to escape the British media by going to Spain—in particular, to watch Barcelona play Real Madrid in the first half of the super cup, in that most fantastic of stadiums in Barcelona. I did not succeed entirely in having five days free from the British media, because even the Spanish media were reporting that The Sun was publishing photographs of Prince Harry, defending its actions on the basis that

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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.”

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

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

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

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

The Government’s explanatory notes to the Bill state:

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

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

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

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

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

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

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

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

That is how the Bill came to the House and to the Committee, and the Under-Secretary of State for Justice, my hon. Friend the Member for Maidstone and The Weald, who was a member of the Committee, and others then looked at those issues. I think that the debate hinged on two things. First, did the drafting of the statutory defence in fact take account of the law as it now is, because things had moved on? There had been

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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.

4 pm

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.”

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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”

and

“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”,

or

“reckless disregard to the truth or falsity”,

or

“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.

Paul Farrelly: 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.

Simon Hughes: 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,

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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

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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.

Fiona Mactaggart (Slough) (Lab): 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?

Simon Hughes: 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.

4.15 pm