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

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more months to get this into good shape, but we need to do quite a bit more work before it will be in that position.

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

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

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

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

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

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

That is indeed how the lower courts had interpreted the list. In the Jameel case, the House of Lords was critical of the High Court—in that instance, Mr Justice Eady—and

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the Court of Appeal in denying qualified privilege on one narrow ground taken from the list.

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

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

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

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

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

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

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

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

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

“whether there were any factors supporting urgent publication”.

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

The amendment seeks to give statutory recognition, if that is the right word, when newspapers are seeking to rely on qualified privilege, to the importance of journalists following a relevant code of practice—be it their own publication’s code, the editors’ code, one from a regulator or that of the profession. It also seeks to bolster the position of journalists. They are frequently asked by editors to do things that breach those codes: “Leave your morals at home or you’ll be colouring in the black squares on the crossword before we sack you” can instil genuine fear in many parts of the industry. Only editors

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and proprietors have been consulted on the proposals for the reform of the PCC; journalists have not. I believe that in striving for better quality journalism, we should give good codes of practice more weight. The amendment seeks to do that.

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

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

4.30 pm

Sir Peter Bottomley: Clause 4(6) states:

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

My hon. and learned Friend rightly reminds us that the judge in that case made the statement about “amongst other matters”. Does he interpret subsection (6) as meaning that no other matter may be brought up by any judge, and that we are left only with what will be the statutory law?

Mr Garnier: Yes and no. Subsection (2) includes the phrase “amongst other matters”, so it puts what Lord Nicholls said in the Reynolds case into statutory form. I think that it is more sensible to leave this in the form of developing common law, but if we are to set something in stone, clause 4 is better than the somewhat confusing provision tabled by my right hon. Friend the Member for Bermondsey and Old Southwark.

Bad points are never improved by repetition, but it is a pity that we are doing away with the common law. Although I have lost that battle, I might as well wear my black in mourning at its passing.

John McDonnell (Hayes and Harlington) (Lab): It is entertaining to be following the hon. and learned Member

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

Mr Garnier: You did libel somebody.

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

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

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

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

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

Amendment 1 inserts a reasonableness test with the words

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

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

We all agree that it is good practice for a journalist to contact the claimant before publication, but that is not always possible for a variety of reasons, some of which relate to the way in which the courts have been used—the threat of a lawsuit or the triggering of an injunction or a super-injunction, and, in some cases, the threat of physical force. Often injunctions are sought by the rich and powerful, who are keen to prevent the publication of a detrimental story, or to delay its publication until they have had time either to hide the damaging evidence, or develop an appropriate public relations strategy to

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limit the damage. I believe that it should be a defence that the claimant’s views were published either concurrently with or within a reasonable time after initial publication, as existing journalistic codes already demand.

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

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

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

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

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

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

and

“Differentiates between fact and opinion.”

The NUJ says that within the code of conduct

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

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

We all know from the evidence provided to Leveson the pressures that are applied to journalists. Michelle Stanistreet, the general secretary of the National Union of Journalists, presented evidence collected from journalists about the pressures put on them to fail to abide by that code of conduct, which is one reason we tried to amend employment legislation. We wanted the code of conduct

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to be written into employment law, so that journalists would have protection against wrongful dismissal if they were seeking to abide by the code and refused to write a story that broke it or went against it. This measure is another way of introducing the code in legislation, which we should use to uplift the standards of journalism and give people protection.

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

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

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

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

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

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

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4.45 pm

Sir Peter Bottomley: I welcome this debate. I understand that new clause 4 is not going to be pressed to a Division, so I do not need to declare my intentions on that.

Those associating themselves with the new clause include Sense about Science, Which?, Citizens Advice, Mumsnet, Nature, the British Medical Journal, the Association of British Science Writers, Global Witness, the Society of Authors and the Publishers Association, and I am sure that many others would do so. If they believe that Parliament should pay attention to what is in the new clause, I agree with them, and I hope that there will be serious discussion about it in another place and before the Bill gets there.

I want to draw the House’s attention to a case whose decision was reported on 6 July this year by Mrs Justice Sharp. The case was brought by Mohamed El Naschie against Macmillan Publishing, the publishers of Nature, and against the journalist Quirin Schiermeier. In essence, Mrs Justice Sharp decided that what was written was honest, that it was fair opinion, and that it had justification. It was about comments made on the retirement of the editor of a journal called Chaos, Solitons & Fractals. Most of us know what chaos and fractals are. Solitons were, I think, first described in 1834 by someone who had observed a wave go through a canal; they relate to how a wave can be self-perpetuating if it goes at a constant speed. The journal, published by Elsevier, was regarded as a joke and described as such on mathematical websites. In theory, it was peer reviewed. The degree of seriousness of the peer review is described well in the judgment. In June 2011, Mr Justice Eady made various decisions and struck out some parts of the claim. It took until July 2012 for the case to be disposed of. The article was pretty mild, and the problem is that clause 4 or new clause 4 would not do enough to stop that kind of action being taken.

Let me return to clause 1, which needs a bit of attention between now and when it reaches the Lords. It says, under the heading, “Requirement of serious harm”:

“A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.”

That is not the best way of putting it. I would say that a defamatory statement is not actionable unless its publication has caused or is likely to cause serious harm to the reputation of the claimant. If something is said not to be defamatory when clearly it is defamatory, that is worth giving some attention to. I was brought up with the idea that a defamatory statement could be actionable only if it fulfilled three criteria: first, that it was not true—I can think of various defamatory things that could be said about me that are true; secondly, that it should be damaging, and I agree that it should be seriously damaging before it is actionable in court; and thirdly, that it should not be privileged. We might have returned to the question of what is privileged had there been other amendments.

New clause 4 relates to what the person who has published the defamatory statement has done after publication—whether they have, at the request of the person who has made the claim, provided an explanation, an apology or a clarification, or whether they have done that without being asked. That should be taken into

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account. If the new clause is accepted in another place, I hope it will encompass what a respondent has decided to do off their own bat.

To give a small example, the last time I noticed that I was being seriously defamed was when a Sunday newspaper said, in effect, that I was far too close to the IRA. As it happened, the IRA paid rather too much attention to me in my ministerial jobs, but that is a side issue. I rang the editor and said, “What you’ve said is wrong and very damaging. What did you mean to say?” He said, “That we disagree with House of Lords on its decision on Private Lee Clegg”—who had shot somebody—“and we disagree with you appearing at a meeting next Thursday at the Quaker meeting house on Euston road with a senior Sinn Fein person.” I said, “If you put out a statement to the Press Association by lunchtime saying that that’s what you had in mind—if you want to offer me a new lawnmower I would be grateful, but the key thing is to get out a statement today—I won’t take this further. If you don’t, tomorrow—Monday—we will issue a writ and serve it.” That led to a week and a half in the High Court, where George Carman lost a case for his client. I was not his client.

We should be putting pressure on claimants to stay out of court and find a way for courts to throw claims out. The case involving Nature magazine and its comments on the retirement of the editor of Chaos, Solitons and Fractals is the kind of case that even a clerk at the court should have said it would not accept. The first time the judge read the papers, they should have said to the claimant, “Sit down and tell me exactly why you think this needs action in court.”

Paul Farrelly: I draw the hon. Gentleman’s attention to new clause 5, which was tabled by the right hon. Member for Bermondsey and Old Southwark (Simon Hughes) but was not selected for debate because it was essentially the same as a new clause on early strike-outs that my hon. Friend the Member for Stoke-on-Trent South (Robert Flello) tabled in Committee. That new clause lost a Committee vote by nine votes to seven, with Conservative members voting against it and Liberal Democrats abstaining. I urge the hon. Member for Worthing West (Sir Peter Bottomley) to ask the Government to consider that new clause again when the Bill goes to the other place.

Sir Peter Bottomley: I am grateful to the hon. Gentleman for his intervention and will end my remarks on this point. It is important that a case does not fall only when it gets to a hearing. At an early stage, a judge should have the responsibility and the opportunity to ask what it is about. If a claimant will not take the advice of a judge, the judge should have the opportunity to refer the case to a small claims court. Once that happens, the small claims court should be able to order a limit on the costs that can be claimed at the end of a case, with or without a conditional fee agreement or qualified costs shifting. We need to cap these things and have a way of laughing people out of court even before they can get a full hearing.

Robert Flello: Clause 4 is an important, central part of the Bill, but some commentators believe that, as drafted, it does not represent an effective public interest defence. Others, as we have heard, believe that it should either be amended or improved by new clause 4.

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Members will notice that my copy of the Joint Committee’s report is well-thumbed, and I draw their attention to what it has to say about the matter. I am sure that the Minister has already read it, but it would be worth her while to look again at what it says about what was clause 2, on responsible publication. It is important and relates to some of this afternoon’s amendments and comments. It will also elaborate on the Bill and inform views as the Bill makes its way through Parliament.

Today’s has been a good debate, as was the one in Committee, and I begin with a few observations on new clause 4. It was tabled by the right hon. Member for Bermondsey and Old Southwark (Simon Hughes) but bears an uncanny resemblance to the new clause that I tabled in Committee.

Simon Hughes: Same parents.

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

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

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

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

On the amendments tabled by my hon. Friends the Members for Newcastle-under-Lyme (Paul Farrelly) and for Hayes and Harlington (John McDonnell), my constituency neighbour, my hon. Friend the Member for Newcastle-under-Lyme, pointed out that the Reynolds

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list was meant to be flexible, but that this had led to a catalogue of problems. I welcome his attempt to tidy up clause 4 while seeking to probe the Government’s thinking. It is important that the Minister gives us the reassurance and advice we seek.

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

5 pm

The Parliamentary Under-Secretary of State for Justice (Mrs Helen Grant): I thank hon. Members on both sides of the House for the kind and generous sentiments that have been directed towards me and the Under-Secretary of State for Justice, my hon. Friend the Member for Kenilworth and Southam (Jeremy Wright). My fellow new Minister has been sitting beside me for most of the afternoon, but he has just left his place. It is a great honour and privilege to stand at the Dispatch Box.

New clause 4 and other amendments in the group relate to the defence of responsible publication in the public interest, as set out in clause 4. The new clause represents a significant shift in the law towards the interests of defendants. To obtain any remedy beyond explanation, contradiction or correction, the claimant would have to prove malice—a high test that would require the claimant to prove the defendant’s state of mind, which in many cases is likely to be impossible. It could lead, effectively, to people printing what they liked and arguing it was a matter of public interest.

In his very good speech, my right hon. Friend the Member for Bermondsey and Old Southwark (Simon Hughes) mentioned the Flood case, but that does not change the core element of the defence of responsible publication. From my experience, courts will continue to interpret editorial discretion, and I therefore think that the Flood case is reflected in the Bill. My right hon. Friend also mentioned an early strike-out, and again my initial response is that courts already have that power under rule 3.4 of the civil procedure rules, which I have witnessed on numerous occasions. Indeed, such action has been threatened against me, and it can be quite intimidating.

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The hon. Members for Newcastle-under-Lyme (Paul Farrelly) and for Hayes and Harlington (John McDonnell) were concerned—among other things—about the narrowness of the list of factors for consideration. The list in the Bill has been drawn flexibly. It is illustrative and not exhaustive, and in any event the court must have regard to all the circumstances of the case.

I will not comment on all the points raised today, but I recognise the wide range of opinions about clause 4 and the issues underlying them. This is a complex area about which there are well-argued and deeply held views on both sides of the House. The Ministry of Justice has a largely new ministerial team, but we are determined to get the legislation right and would therefore like to reflect further in light of the helpful points that have been raised by hon. Members in this debate and in Committee, and by stakeholders more generally. If we conclude that there is a better way forward, we will table appropriate amendments in another place.

Sir Peter Bottomley: I am most grateful to the hon. Lady, and may I say on behalf of hon. Members on both sides of the House that we welcome the approach that she and the Under-Secretary of State for Justice, my hon. Friend the Member for Kenilworth and Southam (Jeremy Wright), have taken in picking up this brief and this Bill?

When reflecting with advisers, and hopefully with outsiders, will she ask whether, if the Bill becomes an Act, it would be possible to dispose of the case I mentioned—El Naschie v. Macmillan, the publishers of Nature? Would it be possible to dispose early of the Rath v. Guardian case, the British Chiropractic Association v. Simon Singh, or NMT Medical’s case against Peter Wilmshurst? By the time the Bill gets to the other place and amendments come back to this House, we ought to have an understanding that cases with no merit whatsoever will be recognised as such by the courts early on.

Mrs Grant: I cannot comment on the details of individual cases, but if my hon. Friend writes to me, I will look at what he says.

In the light of the assurances I have given the House that the Government continue to look broadly at how a public interest defence might be framed, I hope hon. Members agree not to press their proposals to a Division.

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

The hon. Member for Hayes and Harlington (John McDonnell) argued for a differential test for those in public life and those not in public life. Those of us in public life are much better equipped and able to go to law if we want to do so. If the bar were to be lower for people in public life, so the capacity to respond would also be easier. I do not necessarily accept that that is

12 Sep 2012 : Column 356

where we want to go, but that is another debate. The bulk of my constituents and the hon. Gentleman’s are not in a position readily to go to court to defend their interests, and nor could they get an adequate remedy. The new clause therefore seeks to find a remedy outside the courts.

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

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

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

Simon Hughes: I am grateful to the hon. Gentleman.

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

Simon Hughes: I agree that there is complete and utter whatever-it-is between the two.

Sir Peter Bottomley: I disagree with the good people on the Opposition Benches. This Bill is about defamation. We know that there will be something on privacy, and we also know that Lord Leveson is likely to talk about the way in which the press and others operate. If this Bill, dealing with defamation, is held up to bring in something dealing with privacy in its own time, we will end up with the kind of confusion that we are trying to get away from.

Simon Hughes: We are hearing a quick last set of bids for how the Government should proceed. The point that will reconcile those views and mine is this. Although my noble Friend Lord McNally is keen that we should introduce reforms and have a modern law on defamation, the Ministry of Justice should none the less have a wider debate with colleagues in both Houses, particularly

12 Sep 2012 : Column 357

in this House, about how that should be achieved, while at the same time ensuring that we do not lose the opportunities to do what Lord Justice Leveson recommends. We need to have that debate. It would not preclude concluding the Defamation Bill, but whether it would include this part of the Bill, for example, or whether we would leave the issue to be addressed in the public interest debate post Leveson is a matter to be resolved. I hope that there is agreement that that sort of conversation could happen. I am sure that Ministers will want to be helpful, and I will certainly talk to my colleagues across Government in other Departments, including the Deputy Prime Minister, and say, “There is an issue here and Government collectively need to address it.” With those words, I beg to ask leave to withdraw new clause 4.

Clause, by leave, withdrawn.

Clause 5

Operators of websites

Amendment proposed: 7, page 3, line 22, leave out clause 5.—(Robert Flello.)

Question put, That the amendment be made.

The House divided:

Ayes 204, Noes 276.

Division No. 65]

[5.11 pm

AYES

Abbott, Ms Diane

Ainsworth, rh Mr Bob

Alexander, rh Mr Douglas

Alexander, Heidi

Ali, Rushanara

Allen, Mr Graham

Ashworth, Jonathan

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

Blomfield, Paul

Blunkett, rh Mr David

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 Gregory

Campbell, Mr Ronnie

Caton, Martin

Clarke, rh Mr Tom

Clwyd, rh Ann

Coaker, Vernon

Coffey, Ann

Connarty, Michael

Corbyn, Jeremy

Crausby, Mr David

Creagh, Mary

Creasy, Stella

Cruddas, Jon

Cryer, John

Cunningham, Alex

Cunningham, Mr Jim

Cunningham, Sir Tony

Curran, Margaret

Danczuk, Simon

David, Wayne

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

Dugher, Michael

Durkan, Mark

Eagle, Ms Angela

Efford, Clive

Ellman, Mrs Louise

Engel, Natascha

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

Goggins, rh Paul

Goodman, Helen

Greatrex, Tom

Green, Kate

Greenwood, Lilian

Griffith, Nia

Gwynne, Andrew

Hain, rh Mr Peter

Hamilton, Mr David

Hamilton, Fabian

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

Long, Naomi

Lucas, Caroline

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, John

McFadden, rh Mr Pat

McGovern, Jim

McGuire, rh Mrs Anne

McKechin, Ann

McKenzie, Mr Iain

McKinnell, Catherine

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

Reed, Mr Jamie

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

Thomas, Mr Gareth

Trickett, Jon

Turner, Karl

Umunna, Mr Chuka

Vaz, rh Keith

Vaz, Valerie

Watson, Mr Tom

Watts, Mr Dave

Whitehead, Dr Alan

Williamson, Chris

Wilson, Phil

Winnick, Mr David

Winterton, rh Ms Rosie

Wood, Mike

Wright, David

Wright, Mr Iain

Tellers for the Ayes:

Nic Dakin and

Tom Blenkinsop

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

Bellingham, Mr Henry

Beresford, Sir Paul

Berry, Jake

Bingham, Andrew

Binley, Mr Brian

Blackman, Bob

Blackwood, Nicola

Bone, Mr Peter

Bottomley, Sir Peter

Bradley, Karen

Brady, Mr Graham

Brake, rh Tom

Bray, Angie

Brazier, Mr Julian

Bridgen, Andrew

Brine, Steve

Browne, Mr Jeremy

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

Chishti, Rehman

Clarke, rh Mr Kenneth

Clifton-Brown, Geoffrey

Coffey, Dr Thérèse

Collins, Damian

Cox, Mr Geoffrey

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

Drax, Richard

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

Francois, rh Mr Mark

Freeman, George

Freer, Mike

Fullbrook, Lorraine

Fuller, Richard

Garnier, Mr Edward

Garnier, Mark

Gauke, Mr David

George, Andrew

Gibb, Mr Nick

Gilbert, Stephen

Gillan, rh Mrs Cheryl

Glen, John

Goldsmith, Zac

Goodwill, Mr Robert

Graham, Richard

Grant, Mrs Helen

Gray, Mr James

Grayling, rh Chris

Grieve, rh Mr Dominic

Griffiths, Andrew

Gummer, Ben

Gyimah, Mr Sam

Halfon, Robert

Hames, Duncan

Hancock, Matthew

Hands, Greg

Harper, Mr Mark

Harrington, Richard

Harris, Rebecca

Hart, Simon

Hayes, Mr John

Heald, Oliver

Heath, Mr David

Hemming, John

Henderson, Gordon

Hendry, Charles

Herbert, rh Nick

Hinds, Damian

Hollobone, Mr Philip

Hopkins, Kris

Horwood, Martin

Howarth, Mr Gerald

Howell, John

Hughes, rh Simon

Huhne, rh Chris

Hunt, rh Mr Jeremy

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

Leadsom, Andrea

Lee, Dr Phillip

Leech, Mr John

Lefroy, Jeremy

Leigh, Mr Edward

Leslie, Charlotte

Lewis, Brandon

Lewis, Dr Julian

Liddell-Grainger, Mr Ian

Lidington, rh Mr David

Lilley, rh Mr Peter

Lloyd, Stephen

Lopresti, Jack

Lord, Jonathan

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

Moore, rh Michael

Mordaunt, Penny

Morgan, Nicky

Morris, David

Morris, James

Mosley, Stephen

Mowat, David

Mulholland, Greg

Munt, Tessa

Murray, Sheryll

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

Pincher, Christopher

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

Simpson, Mr Keith

Skidmore, Chris

Smith, Miss Chloe

Smith, Henry

Smith, Julian

Smith, Sir Robert

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

Swire, rh Mr Hugo

Tapsell, rh Sir Peter

Thurso, John

Timpson, Mr Edward

Tomlinson, Justin

Tredinnick, David

Turner, Mr Andrew

Tyrie, Mr Andrew

Uppal, Paul

Vaizey, Mr Edward

Vara, Mr Shailesh

Vickers, Martin

Walker, Mr Charles

Walker, Mr Robin

Wallace, Mr Ben

Walter, Mr Robert

Ward, Mr David

Watkinson, Angela

Weatherley, Mike

Wheeler, Heather

White, Chris

Whittaker, Craig

Whittingdale, Mr John

Wiggin, Bill

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

Zahawi, Nadhim

Tellers for the Noes:

Mr Robert Syms and

Mark Hunter

Question accordingly negatived.

12 Sep 2012 : Column 358

12 Sep 2012 : Column 359

12 Sep 2012 : Column 360

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

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

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

12 Sep 2012 : Column 361

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

Clause 10

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

Robert Flello: I beg to move amendment 8, page 8, line 26, leave out from ‘court’ to end of line 28 and insert—

‘(a) is satisfied that it is not reasonably practicable for an action to be brought against the author, editor or publisher; and

(b) there is a prima facia case that the statement complained of is defamatory; and

(c) is satisfied that such person did not know that the statement was defamatory until a claim to that effect was made and did not reasonably believe that there was a good defence to any action brought upon it.’.

In Committee I moved a similar amendment—I think it was amendment 16—which sought to weed out, at an early stage, unnecessary cases coming before the courts involving no defamation. Replying to the debate, the then Minister expressed concern about the requirement for a court to determine at an early stage whether a statement was indeed defamatory. I therefore withdrew the amendment in order to reconsider it. Amendment 8 recasts it, requiring simply that a prima facie case should exist. However, it also incorporates more of the concerns raised by the Booksellers Association which I raised in Committee on 26 June. That debate can be found at column 162 of Hansard, if the Minister wishes to grab her copy and look it up quickly. No, I thought that she would not.

The then Minister gave what I felt, and indeed the Booksellers Association felt, was an unsatisfactory response.

The points made by the Booksellers Association are as follows. First, although section 1 of the Defamation Act 1996 is available to booksellers as a defence, it is very much weaker than the common law defence of innocent dissemination which that section replaced. It has been suggested that section 1 was never intended to do what it has done, and that the problem was inadvertently caused by sloppy drafting. In Committee, the then Minister felt that there were differing views on the section and on whether it was weaker than the common law defence. If that is so, it would be helpful to know who feels that it is not weaker than the Booksellers Association and other observers believe it to be.

Secondly, under section 1 booksellers, and indeed other secondary publishers such as newsagents and distributors, lose that protection if they know, or have reason to believe, that a publication contains any defamatory statement. Under the previous defence of innocent dissemination, a defence would have existed if the bookseller had a reasonable belief that the alleged defamatory material was not libellous, having been assured by his or her own lawyers, or by lawyers for the author or publisher, that one or more of the statutory defences applied.

Thirdly, as a result of the elimination of the innocent dissemination defence, a technique known as the sending of “clogging letters” was adopted. A clogging letter was a letter sent by the claimant’s lawyers to a bookseller warning that unless a publication containing the alleged libel was immediately withdrawn from sale, proceedings

12 Sep 2012 : Column 362

would be started against the bookseller. The bookseller invariably had to remove the publication from his shelves, as he did not have the resources with which to defend himself against litigation without the availability of the innocent dissemination defence. The claimant therefore achieved the withdrawal of the publication whether or not he had a proper case, without having to issue any proceedings against the author or publisher or, indeed, the bookseller. That device has been used by a number of vexatious litigants.

Paragraph (c) of amendment 8 is intended to reinstate the defence of innocent dissemination for booksellers. As they have pointed out, if they cannot rely on other defences and are considered to be an easy target, and if clause 10 does not enable the publisher and the other parties to a publication to mount a challenge, a bookseller wants to be able to at least use other defences.

I do not want to detain the House. That is the crux of what I propose, and I look forward to what the Minister has to say.

Sir Peter Bottomley: I am grateful to the hon. Member for Stoke-on-Trent South (Robert Flello) for raising this subject. His amendment refers to there being

“a prima facia case that the statement complained of is defamatory”.

I think that is right. People ought to ask themselves whether there is a reasonable probability that the claim will be successful. In criminal cases, people are not brought to court unless there is a 50:50 chance or more of conviction.

We need to go further than the prima facia case, however. The court ought to hold that there is defamation, that it is actionable and that it is likely that a court case would end in success for the claimant. Too many cases are brought that will clearly not be successful when they come to a full hearing. That applies not only to booksellers—the category this amendment specifically addresses—but all the other types of case about which I have been concerned.

Mrs Grant: Amendment 8 would add two additional hurdles to overcome before a court had jurisdiction to hear a defamation claim against someone who was not a primary publisher. We do not consider this amendment to be appropriate. It would significantly limit the circumstances in which a court would have jurisdiction to hear an action against a person who was not the author, editor or publisher of a defamatory statement. To provide that an action against a secondary publisher can only be brought where it can be proved that the secondary publisher had knowledge that the statement was defamatory and that there was no defence would raise the bar for establishing jurisdiction to a very high level, and would tip the balance too far against the interests of the claimant. It could leave them with no means of restoring their reputation.

In addition, it would be very unusual to require a court to consider the substance of a case at the same time as determining whether to grant jurisdiction for the action to be brought. On that basis, I hope the hon. Member for Stoke-on-Trent South (Robert Flello) will agree to withdraw his amendment.

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

12 Sep 2012 : Column 363

Question put, That the amendment be made.

The House divided:

Ayes 202, Noes 276.

Division No. 66]

[5.32 pm

AYES

Abbott, Ms Diane

Ainsworth, rh Mr Bob

Alexander, rh Mr Douglas

Alexander, Heidi

Ali, Rushanara

Allen, Mr Graham

Ashworth, Jonathan

Bailey, Mr Adrian

Bain, Mr William

Banks, Gordon

Barron, rh Mr Kevin

Beckett, rh Margaret

Begg, Dame Anne

Benn, rh Hilary

Benton, Mr Joe

Blomfield, Paul

Blunkett, rh Mr David

Bottomley, Sir Peter

Bradshaw, rh Mr Ben

Brennan, Kevin

Brown, Lyn

Brown, rh Mr Nicholas

Brown, Mr Russell

Burden, Richard

Campbell, Mr Alan

Campbell, Mr Gregory

Campbell, Mr Ronnie

Caton, Martin

Clarke, rh Mr Tom

Clwyd, rh Ann

Coaker, Vernon

Coffey, Ann

Connarty, Michael

Corbyn, Jeremy

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

David, Wayne

Davidson, Mr Ian

Davies, Geraint

De Piero, Gloria

Dobbin, Jim

Dobson, rh Frank

Docherty, Thomas

Dodds, rh Mr Nigel

Doran, Mr Frank

Dowd, Jim

Doyle, Gemma

Dromey, Jack

Dugher, Michael

Durkan, Mark

Eagle, Ms Angela

Efford, Clive

Ellman, Mrs Louise

Engel, Natascha

Esterson, Bill

Evans, Chris

Farrelly, Paul

Field, rh Mr Frank

Fitzpatrick, Jim

Flello, Robert

Flint, rh Caroline

Flynn, Paul

Francis, Dr Hywel

Gardiner, Barry

Glass, Pat

Glindon, Mrs Mary

Goggins, rh Paul

Goodman, Helen

Greatrex, Tom

Green, Kate

Greenwood, Lilian

Griffith, Nia

Gwynne, Andrew

Hain, rh Mr Peter

Hamilton, Mr David

Hamilton, Fabian

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

Long, Naomi

Lucas, Caroline

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, John

McFadden, rh Mr Pat

McGovern, Jim

McGuire, rh Mrs Anne

McKechin, Ann

McKenzie, Mr Iain

McKinnell, Catherine

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

Thomas, Mr Gareth

Timms, rh Stephen

Trickett, Jon

Turner, Karl

Umunna, Mr Chuka

Vaz, rh Keith

Vaz, Valerie

Watson, Mr Tom

Watts, Mr Dave

Whitehead, Dr Alan

Williamson, Chris

Wilson, Phil

Winnick, Mr David

Wood, Mike

Wright, David

Wright, Mr Iain

Tellers for the Ayes:

Yvonne Fovargue and

Tom Blenkinsop

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

Bellingham, Mr Henry

Beresford, Sir Paul

Berry, Jake

Bingham, Andrew

Binley, Mr Brian

Blackman, Bob

Blackwood, Nicola

Boles, Nick

Bone, Mr Peter

Bradley, Karen

Brady, Mr Graham

Brake, rh Tom

Bray, Angie

Brazier, Mr Julian

Bridgen, Andrew

Brine, Steve

Browne, Mr Jeremy

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, Neil

Carswell, Mr Douglas

Cash, Mr William

Chishti, Rehman

Clark, rh Greg

Clarke, rh Mr Kenneth

Clifton-Brown, Geoffrey

Coffey, Dr Thérèse

Collins, Damian

Cox, Mr Geoffrey

Crouch, Tracey

Davies, Glyn

Davies, Philip

de Bois, Nick

Dinenage, Caroline

Djanogly, Mr Jonathan

Dorrell, rh Mr Stephen

Dorries, Nadine

Doyle-Price, Jackie

Drax, Richard

Duddridge, James

Duncan, rh Mr Alan

Ellis, Michael

Ellison, Jane

Elphicke, Charlie

Eustice, George

Evans, Graham

Evans, Jonathan

Evennett, Mr David

Fabricant, Michael

Fallon, rh Michael

Featherstone, Lynne

Field, Mark

Foster, rh Mr Don

Francois, rh Mr Mark

Freeman, George

Freer, Mike

Fullbrook, Lorraine

Garnier, Mr Edward

Garnier, Mark

George, Andrew

Gibb, Mr Nick

Gilbert, Stephen

Gillan, rh Mrs Cheryl

Glen, John

Goldsmith, Zac

Goodwill, Mr Robert

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

Herbert, rh Nick

Hinds, Damian

Hoban, Mr Mark

Hollobone, Mr Philip

Hopkins, Kris

Horwood, Martin

Howarth, Mr Gerald

Howell, John

Hughes, rh Simon

Huhne, rh Chris

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

Lamb, Norman

Lancaster, Mark

Lansley, rh Mr Andrew

Latham, Pauline

Laws, rh Mr David

Leadsom, Andrea

Lee, Dr Phillip

Leech, Mr John

Lefroy, Jeremy

Leigh, Mr Edward

Leslie, Charlotte

Lewis, Brandon

Lewis, Dr Julian

Liddell-Grainger, Mr Ian

Lidington, rh Mr David

Lilley, rh Mr Peter

Lloyd, Stephen

Lopresti, Jack

Lord, Jonathan

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

Moore, rh Michael

Mordaunt, Penny

Morgan, Nicky

Morris, David

Morris, James

Mosley, Stephen

Mowat, David

Mulholland, Greg

Mundell, rh David

Munt, Tessa

Murray, Sheryll

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

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

Simpson, Mr Keith

Skidmore, Chris

Smith, Miss Chloe

Smith, Henry

Smith, Julian

Smith, Sir Robert

Soubry, Anna

Spelman, rh Mrs Caroline

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

Swire, rh Mr Hugo

Tapsell, rh Sir Peter

Thurso, John

Timpson, Mr Edward

Tomlinson, Justin

Tredinnick, David

Truss, Elizabeth

Turner, Mr Andrew

Tyrie, Mr Andrew

Uppal, Paul

Vara, Mr Shailesh

Vickers, Martin

Walker, Mr Charles

Walker, Mr Robin

Wallace, Mr Ben

Walter, Mr Robert

Ward, Mr David

Watkinson, Angela

Weatherley, Mike

Webb, Steve

Wheeler, Heather

White, Chris

Whittaker, Craig

Whittingdale, Mr John

Wiggin, Bill

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

Zahawi, Nadhim

Tellers for the Noes:

Mark Hunter and

Mr Robert Syms

Question accordingly negatived.

12 Sep 2012 : Column 364

12 Sep 2012 : Column 365

12 Sep 2012 : Column 366

Third Reading

5.44 pm

The Lord Chancellor and Secretary of State for Justice (Chris Grayling): I beg to move, That the Bill be now read the Third time.

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

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

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

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

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

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

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

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

The Bill provides simpler and clearer defences to those accused of defamation, and ensures that they are available outside mainstream media cases. One way in

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which that is achieved is through the creation of new statutory defences of honest opinion and truth to replace the existing common-law defences.

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

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

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

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

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

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


5.54 pm

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

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

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

We firmly support the principle of modernising our out-of-date defamation law—indeed, we set the whole process in train when in government. This Bill is the

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

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

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

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

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

Several hon. Members rose—

Mr Speaker: David Morris.

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6.1 pm

David Morris (Morecambe and Lunesdale) (Con): It is an honour to be the first Back Bencher called in this debate, Mr Speaker.

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

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

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

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

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

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

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

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

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

London has been described as the libel capital of the world. At the simplest level, libel tourism takes place when foreign citizens conduct actions against foreign

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

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

6.5 pm

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

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

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

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

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

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at Olswang, at roughly £600 an hour, when he himself earns $600 a month. He has hired Andrew Caldecott QC—

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

Mr MacShane: No, Sir, they are not. They are just filed at the moment and can be discussed. No charges have been initiated.

Such cases are a prime example of libel tourism. One of President Putin’s chief functionaries still thinks that he can get away with libel tourism in this country. I hope that someone in the Russian embassy reads this Bill and understands that that kind of libel tourism is no longer acceptable.

Sir Peter Bottomley: You, Mr Speaker, and the right hon. Gentleman may remember that when we debated the Sergei Magnitsky case and the scandalous way he had been treated, an offer was made in public that the Russian ambassador might like to have a discussion with Members of Parliament. Will the right hon. Gentleman join me in extending that invitation to the Russian ambassador?

Mr MacShane: I will freely do so. I do not want to drag this debate into the Magnitsky affair, but it is remarkable that, around the world, people think London is still a town called Sue. Pavel Karpov is a $600-a-month state functionary, employed in Russia, who is hiring the most expensive lawyers, QCs and solicitors, and who has even hired a public relations company called PHA Media, which is run by Mr Phil Hall, a former editor of News of the World, to manage his campaign. I hope that the Karpov case will be the first to fall as a result of tonight’s Third Reading, which will go through unanimously.

When the Bill is debated in the other place, I hope that changes will be made to it to help the small man. Much of the Bill—I do not have time to go through the details—remains an absolute paradise for lawyers. The very first clause states that a statement is not defamatory unless it

“has caused or is likely to cause serious harm to the reputation of the claimant.”

Occasionally I read comments about you, Mr Speaker. I do not know whether they cause serious harm and I certainly do not think that you would wish to comment on whether they do, but you would have to shell out six times your salary to pay m’learned friends as they debated whether it did. Even the first clause, therefore, opens the door for more money to flow into the coffers of our undoubtedly underpaid legal fraternity.

It is good that we have debated the Bill and that the Government are prepared to co-operate. I agree with my right hon. Friend the Member for Tooting (Sadiq Khan) that the Bill is seriously flawed and hope that it will be re-examined in the other place and brought back here in a more helpful condition, and that, together with Leveson and, possibly, privacy legislation, we can produce a panoply of laws for our nation that will ensure for decades to come that this is a country not

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only where good journalism flourishes, but where people cannot be unfairly traduced by things said and printed about them.

6.12 pm

Mr Edward Garnier: I will not follow the same acerbic path as the right hon. Member for Rotherham (Mr MacShane).

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

Mr Garnier: In parenthesis to what I was saying about the right hon. Member for Rotherham, I thank my right hon. Friend the Secretary of State for Justice for his kind remarks and congratulate him on his new position. I congratulated the new Under-Secretaries of State, my hon. Friends the Members for Kenilworth and Southam (Jeremy Wright) and for Maidstone and The Weald (Mrs Grant) earlier this afternoon. If my right hon. Friend maintains the tone that he adopted during his speech, this Bill will not only be improved, but markedly so. I am grateful for the stance that he took, which was in marked contrast to that taken by the right hon. Member for Rotherham, who thought it amusing, no doubt, to make personal remarks about others who cannot protect themselves here; but let us leave that there.

I also thank the right hon. Member for Tooting (Sadiq Khan), the shadow Secretary of State for his words and the approach that he and his Front-Bench team will take as the Bill goes to the other place. There is now an opportunity to develop a new defamation Act that will meet some apparent needs, such as how the law is applied and libels dealt with in relation to the internet. It is time to deal with such things.

I have noted on my copy of the Bill something that my hon. Friend the Member for Worthing West (Sir Peter Bottomley) said earlier about clause 1. As drafted, the clause confuses what is defamatory and the consequences of a defamatory statement. I hope that by the time the Bill becomes an Act, the clause will read: “A defamatory statement is not actionable unless its publication has caused, or is likely to cause, serious harm to the reputation of the claimant”. Many things are defamatory that might not cause much damage, and many things are not very defamatory but can cause disproportionate damage. The wording that my hon. Friend and I have coincidently come up with deals with that point. I dare say that others will think more carefully about that as the Bill moves forward.

On the issue of truth and honest opinion, the way the Bill is constructed is sensible. In my opinion, the law did not need changing but, if it is to be changed, clauses 2 and 3 deal with it.

I have said what I had to say about clause 4 and the Reynolds defence. I want briefly to talk about clause 6. There has been a huge amount of campaigning from various groups, such as PEN, Sense about Science and so forth, largely based on the case of the chiropractors against Simon Singh. I will not go into the facts of the case. Much of it was misunderstood, but the nub of the case was this: did the words complained about constitute

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allegations of fact or comment? That does not matter, because the argument and the campaign decided that academic criticism should almost be free from the law of libel.

Once we have got over that concern, we need to think more carefully about whether learned societies, which are not corporate bodies or profit-making companies, should have a right to sue in damages. We no longer allow local authorities to sue for damage to their governing reputation. Thirty five years ago, I used to get injunctions, for goodness’ sake, on behalf of local authorities, as corporate bodies that felt that they had been defamed by the local paper. Looking back, it is ridiculous to think that the Derbyshire county council case was not decided earlier, but it was not. For some decades now, it has not been possible for local authorities to sue in defamation. I rather suspect that the royal college of this, that or the other should not be allowed to sue either, although I must distinguish between that and the right of presidents and other officers of those associations to bring a personal action, if they are defamed.

Sir Peter Bottomley: There is one obvious problem with putting into statute things decided by judges and juries, which is common law. Would such a judgment be possible were the Bill to become law? Would the judges—juries would not be involved—be able to make a decision saying that a body corporate, whether charitable, non-profit or commercial, would be barred from taking out an action, even if it had more merit than the ludicrous one of the chiropractors against Simon Singh?

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

Sadiq Khan: Especially for free.

Mr Garnier: Yes, especially for free.

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

The Bill has good intentions and contains some good, defensible and sensible clauses. It also probably promises more than it can deliver, particularly in relation to libel tourism. I disagree with the right hon. Member for Rotherham about its being a bad thing that people want to come to London to litigate. Nobody seemed to complain the other day when Abramovich sued Berezovsky were in this jurisdiction. That demonstrates that in the United Kingdom people can find uncorrupted judges who will deal fairly with difficult cases. If foreigners want to sue other foreigners in our courts, I see no problem with that. Before the right hon. Gentleman rises again to defame others under the cloak of absolute

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privilege, he might consider that if the courts find that there is no real connection between the litigants and the jurisdiction, they can strike out the claim under the Spiliada principles, with which I am sure he is familiar. They essentially mean that that court is not the appropriate forum in which to bring an action.

Mr MacShane rose

Mr Garnier: I have clearly puzzled the right hon. Gentleman so I will let him intervene.

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

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

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

6.22 pm

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

The Bill is welcome and has much to commend it, including giving scientific and medical communities

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protection from abuse of our libel laws in order to stifle debate and proper investigation. When our libel laws have been used and abused in the past, it was often by large corporations. The action brought by Tesco four years ago against

The Guardian

was perhaps the starkest case in recent times of an inequality of arms. The main ambition of the determinant litigant was not really to settle, but expensively to bog down the newspaper and its journalists for as long as possible, as a warning to it and others in the future.

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

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

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

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

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

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

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

6.27 pm

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

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

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

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

We now have some time after Third Reading before the Bill goes to the Lords. We will engage with people in the other place. We need to pause to ensure that when

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

6.31 pm

Sir Peter Bottomley: I will not follow what the right hon. Member for Rotherham (Mr MacShane) said about the Sergei Magnitsky case, except to say that it would be shocking if the British libel courts are used by the Klyuev organised crime group to try to get at those who are trying to expose the truth and get justice for a person who was murdered.

The person who has not been mentioned much in our debates is a man called William Hone, who is the subject of a great book called “The Laughter of Triumph” by Ben Wilson. William Hone was taken to court for criminal libel on a number of occasions. He was disobliging about Lord Liverpool as Prime Minister, he attacked the Home Secretary, who led for 10 repressive years in government, he was disobliging about someone whom he described as a “fat, lascivious toad”—I will not go into that—and he was rude about the Lord Chief Justice. Juries would not convict William Hone. We are now disposing of juries in virtually all cases of defamation or libel that get heard in the courts. I fear that we may find that advances in law in this area will no longer come from juries and judges, but will be left to the vagaries of the parliamentary timetable, which is a danger. I would therefore like to hear from the Government—perhaps with all-party agreement—that they will return to the issue for legislative scrutiny five years after the Bill becomes an Act.

I believe that the press do not just have the right to be right; I believe they have the right to be wrong. There is the question of what they do when they have got it wrong. Just saying, “Only if you can prove something in advance,” means that we will lose most things.

I end with this bit of advice for those who find that an investigative journalist has written an attack on something for which they are responsible. I was a junior Minister for six years, and whenever I spotted a report by an investigative journalist—including some by Paul Foot—I would ask my Department to find out the answers to various questions that would test whether the accusations had foundation. When I discovered that they had, I would take action. However, in one case when I discovered that the accusations had no foundation, I notified Paul Foot, who told me that it was the first time in the whole of his career as an investigative journalist that someone in authority had come back to him with the information that had been sought and asked whether further inquiries ought to be made. The response to attacks in the press is to find out whether they are justified, not to try to defend oneself whatever the truth.

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6.34 pm

Sir Bob Russell (Colchester) (LD): It was the late Enoch Powell who was first quoted in The Guardian, in December 1984, as saying:

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

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

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

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

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

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

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

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

Question put and agreed to

Bill accordingly read the Third time and passed.

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Parliamentary Commissioner for Standards

6.40 pm

John Thurso (Caithness, Sutherland and Easter Ross) (LD): I beg to move,

That Ms Kathryn Hudson be appointed Parliamentary Commissioner for Standards on the terms of the Report of the House of Commons Commission, HC 539, dated 17 July 2012.

The motion is in my name and that of other House of Commons commissioners and of the right hon. Member for Rother Valley (Mr Barron), the Chair of the Standards and Privileges Committee.

In 2003, the House decided that the office of Parliamentary Commissioner for Standards should be held for a non-renewable term of five years. The appointment of the current commissioner, John Lyon, comes to an end on 31 December, and the House therefore needs to appoint a new commissioner.

It is appropriate to begin by expressing the House of Commons Commission’s appreciation of the work undertaken by John Lyon since his appointment. He inquired into an unprecedented number of allegations against Members at a time when the reputation of the House was being called into question. He helped to restore confidence in Members and in the institutions of the House. He will also be remembered for bringing up to date the procedures for the commissioner’s inquiries and, in particular, for the greater transparency he introduced, with the House’s agreement, by publishing information about inquiries that were not reported formally to the Committee on Standards and Privileges. I am sure the House will wish to join me in expressing our gratitude for all the work he did in this role.

There has been a thorough and rigorous recruitment process using standards equivalent to those of the Commissioner for Public Appointments. This has involved the right hon. and learned Member for Kensington (Sir Malcolm Rifkind) and the right hon. Member for Rother Valley, the Chair of the Committee on Standards and Privileges, as well as members of the House of Commons Commission and an independent adviser. All the details are in the report that sets out the Commission’s nomination. I would like to take this opportunity to thank all those who took part in the selection process, particularly Judith Alderton, who acted as the independent assessor. It is therefore with confidence that I commend this nomination to the House.

Kathryn Hudson is currently the deputy parliamentary and health ombudsman and was previously the national director of social care at the Department of Health. The House of Commons Commission is confident that she has the necessary experience, clear thinking and personal authority for the role, and that she will bring to it the independence, discretion, and strength of character required to ensure that the system of parliamentary self-regulation continues to work effectively.

Should the House approve the nomination, Ms Hudson’s appointment will commence at the beginning of 2013. The work load of the commissioner has already declined somewhat with the transfer of responsibility for Members’ pay and expenses elsewhere, and it is anticipated that Ms Hudson will generally work on a half-time basis—rather less than the basis on which John Lyon was originally appointed. I stress that the new commissioner will be

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able to increase her commitment if the work demands it. She will, I am sure, fulfil the high standards set by her predecessors, so I commend this nomination to the House.

6.43 pm

Ms Angela Eagle (Wallasey) (Lab): I thank the hon. Member for Caithness, Sutherland and Easter Ross (John Thurso) for the way in which he began our debate, and I echo the sentiment and reinforce the content of his comments. Like him, I want to pay tribute to the outgoing Parliamentary Commissioner for Standards, John Lyon, who was the fourth commissioner in post since January 2008. He sought to bring greater transparency to the role to help improve public confidence in this House. He has served the House with distinction for the past five years, during what was—as the hon. Member for Caithness, Sutherland and Easter Ross has disclosed—a difficult period.

The role of the Parliamentary Commissioner for Standards was created following the first report of the Committee on Standards in Public Life. It has existed for more than 16 years, and is important in retaining public confidence in the House. As well as maintaining and monitoring the Register of Members’ Financial Interests, the commissioner advises Members on the registration of financial interests and investigates complaints from other Members and the public about failures to register or otherwise abide by the code of conduct—an important and challenging role.

As we were told by the hon. Member for Caithness, Sutherland and Easter Ross, there was a rigorous process of selection for John Lyons’s successor. Labour Members are confident that that process has been thorough and exhaustive. A number of excellent candidates were interviewed by a board of selectors made up of distinguished Members, Officers of the House and external experts. The board brought two candidates back for a final interview, and then recommended Kathryn Hudson to the House of Commons Commission. Although the current Leader of the House was not involved in the process, I know that he will have full confidence in the judgment of his predecessor, who I see is present and who, of course, was involved. It seems likely that he will try to catch your eye, Madam Deputy Speaker, and I am sure that he will have something to say to the House.

I am sure the former Leader of the House would agree that the newly proposed commissioner has extensive experience across the public and charitable sectors, and is currently the deputy Parliamentary and Health Service Ombudsman. I suspect that the current Leader of the House came across her when he was in his previous job, The Commission is confident that she will carry out her proposed new role with energy, integrity and understanding, and in doing so she will have the Opposition’s full support.

6.47 pm

The Leader of the House of Commons (Mr Andrew Lansley): I thank the hon. Member for Caithness, Sutherland and Easter Ross (John Thurso) for presenting the motion, which I too support.

As we heard from the shadow Leader of the House, the hon. Member for Wallasey (Ms Eagle), since 1995 the Parliamentary Commissioner for Standards has played an important role in the work of the House,

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advising Members on the code and the rules of conduct, guiding new Members on their responsibilities and conduct, investigating and reporting on complaints, and ensuring transparency through the operation of the Register of Members’ Financial Interests and the other registers. As the shadow Leader predicted, I am happy to add my support to the recommendation that the House should agree to the motion providing for the appointment of Kathryn Hudson to this role, and I wish her well.

Ms Hudson comes to the role with valuable experience of investigative processes, the capacity to make careful judgments in sensitive cases, and an ability to provide advice and support for Members. As the shadow Leader said, I know and appreciate only too well the way in which the Parliamentary and Health Service Ombudsman has performed similar functions in relation to equally sensitive processes.

As the shadow Leader also said, I became a member of the House of Commons Commission only a week ago, and therefore played no direct part in the recommendation before the House today. I thank the selection board, the right hon. Member for Rother Valley (Mr Barron) and his colleagues, and the Commission for their work.

I am pleased to note that, in line with other new public appointments, the Commission has been able to set a shorter working week and a salary that reflects that. However, it has done so with the understanding that the work load will vary from time to time, and it will not impose a restriction on the days per week that the commissioner considers necessary.

Let me take this opportunity to thank the outgoing commissioner, John Lyon, who inquired into many allegations, and—as was pointed out by the hon. Member for Caithness, Sutherland and Easter Ross—did so in the circumstances of an unprecedented level of focus on the House of Commons as a result of the expenses scandal. Mr Lyon undertook that difficult role with a robust but fair approach, making a very important contribution to the work of restoring confidence in the House and its Members. These cases are not the sole marker of his tenure. He led a review of the code of conduct and rules, and oversaw the introduction of greater transparency on inquiries that were not formally reported to the Standards and Privileges Committee. I would also like to put on record my thanks to the staff of the House who continue to support the commissioner in delivering standards, and to the Chairman of the Standards and Privileges Committee for his work.

I reiterate my thanks to Mr Lyon for his work during what was undoubtedly a challenging time. We should always be appreciative of those who give time and service to the House. I hope that the House will endorse the motion. On that basis, I look forward to welcoming Kathryn Hudson to her new role from January 2013.

6.50 pm

Mr Kevin Barron (Rother Valley) (Lab): I also support the motion to appoint Kathryn Hudson as the next Parliamentary Commissioner for Standards. As Chair of the Standards and Privileges Committee, I was involved in the appointment process both at interview stage and in briefing the Commission. We were extremely fortunate in having two highly able and suitable candidates, of whom Kathryn Hudson was one. I believe her career gives her the investigative skills and, perhaps even more

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importantly, the sense of perspective required. I am therefore delighted to put my name to the motion approving her appointment.

I also want to pay tribute to the outgoing commissioner, John Lyon. When a similar motion was moved on 15 November 2007, the hon. Member for North Devon (Nick Harvey) paid tribute to the then outgoing commissioner, Sir Philip Mawer, and it was noted that

“John Lyon will inherit a standards system that is in much finer fettle than that which awaited his predecessor in February 2002.”—[Official Report, 15 November 2007; Vol. 467, c. 862.]

As we all know, that improvement was not enough to stop the expenses scandal, which will shape our memories of the previous Parliament. As John Lyon noted in the introduction to his most recent annual report, it has been a “tumultuous five years”.

Over that time, John produced about 60 complaints-related memoranda for the Committee and rectified about 50 cases. The House’s reputation may have taken a battering in the press, but the commissioner’s fairness and integrity meant he never became part of that story.

John also worked hard to improve the system, both in making recommendations for a new code and in smaller changes, such as revising and consolidating information on the procedure for investigations, to make it more useful. His judgment has been very sound. There was some concern that making more information available about complaints under investigation would lead to a media feeding frenzy; in fact, doing that has stopped damaging speculation when people were known to be under investigation.

Investigations into allegations of misconduct are only part of the commissioner’s role. The Registrar of Members’ Financial Interests is part of his office, and the commissioner and the registrar consider matters relating to journalists, Members’ secretaries and research assistants, and all-party groups. They have done a great deal to raise awareness of registration requirements and to keep the way in which the rules work under review.

Over the last five years, the commissioner has had to deal with many investigations, which have been thorough and impartial. While there has been criticism of the Committee and the House for their decisions in some of the cases, I am not aware of any case where the investigation has been plausibly criticised because the commissioner was biased or missed obvious lines of inquiry.

Colleagues have sometimes complained about the length of time particular investigations take, but the commissioner’s willingness to take as long as necessary to investigate a complaint is one of the strengths of the system. Complaints are properly investigated by a truly independent figure, whose conclusions command respect.

Some complaints may well be politically motivated. That is not a reason for dismissing them, however, if they meet the conditions required for investigation. If the commissioner considers there may be grounds for a complaint, it is far better for the Member complained of, and for Parliament as a whole, to have the matter properly investigated than to have to deal with allegations of a whitewash or claims that a complaint was dismissed for political reasons.

The commissioner’s most recent annual report suggests that a corner has been turned. He stated:

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“Of the 12 complaints I resolved this year, almost 60% were about conduct in previous Parliaments. All of those concerning conduct in this Parliament related to parliamentary matters such as registration, declaration and the use of stationery, none of which suggested that those Members had exploited the House for any private or personal benefit.