Jeremy Wright
Main Page: Jeremy Wright (Conservative - Kenilworth and Southam)Department Debates - View all Jeremy Wright's debates with the Ministry of Justice
Defamation Bill
Jeremy Wright Excerpts(11 years, 8 months ago)
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The Parliamentary Under-Secretary of State for Justice (Jeremy Wright)
I beg to move, That the clause be read a Second time.
Mr Deputy Speaker (Mr Lindsay Hoyle)
With this it will be convenient to discuss the following:
Amendment 7, page 3, line 22, leave out clause 5.
Government amendments 5 and 6.
Jeremy Wright
New clause 1 deals with an issue raised in Committee by the hon. Member for Newcastle-under-Lyme (Paul Farrelly). He was concerned that circumstances could arise in which a claimant who had successfully brought an action against the author of defamatory material online could be left unable to secure the removal of the material. That situation might arise as a result of the fact that an author might not always be in a position to remove material that had been found to be defamatory from a website, while the new defence in clause 5 might prevent the website operator from being required to do so. The Government indicated in Committee that we would consider whether anything further was needed to address such situations.
We have concluded that although such situations are likely to be rare, it would be appropriate to include a provision in the Bill to ensure that claimants in such cases do not experience any difficulty in securing the removal of material that has been found to be defamatory. New clause 1 therefore provides that where a court gives a judgment for the claimant in a defamation action, it may order the operator of a website on which the defamatory statement is posted to remove that statement. Such an order could be made either during proceedings or on a separate application. New clause 1(2) ensures that the provision does not have any wider effect on the inherent jurisdiction of the High Court.
In speaking to new clause 1, it may be helpful if I speak also to Government amendments 5 and 6, and to amendment 7, which has been tabled by the hon. Member for Stoke-on-Trent South (Robert Flello). Government amendment 5 relates to the circumstances in which a claimant might defeat the defence set out in clause 5. Such circumstances are set out in clause 5(3), paragraphs (b) and (c) of which require a claimant to show that he gave the operator a notice of complaint in relation to the statement in question and that the operator failed to respond to it in accordance with provisions to be set out in regulations. In addition, paragraph (a) requires that a claimant must show that it was not possible for him to identify the person who posted the statement. Amendment 5 clarifies what is meant in paragraph (a) by the word “identify”. Again, concerns were raised in Committee by the hon. Members for Newcastle-under-Lyme and for Stoke-on-Trent South that the meaning of the word “identify” was unclear and that possible difficulties in obtaining the true identity of the author—for example, when he was using a pseudonym—might mean that the claimant was left without a remedy. In the light of those concerns, we undertook to consider the position further.
Amendment 5 clarifies that, for the purposes of subsection 3(a), it is possible for a claimant to “identify” a person only if they have sufficient information to bring proceedings against that person. The amendment will ensure that claimants are not left in limbo, unable to bring proceedings against an author because they lack information that would enable them to do so, but also unable to defeat the defence of the website operator if the operator failed to take steps to assist. We consider that that will ensure that the new process operates fairly and effectively and strikes an appropriate balance between the interests of claimants and those of website operators.
Amendment 6 makes it clear that if the website operator moderates material posted by third-party users on his site, that fact alone will not defeat the defence that is available under clause 5 to a website operator who can show that he did not post the statement complained about on his website. We share the view, expressed by the Joint Committee on the draft Bill and Members of this House, that responsible moderation of content should be encouraged. We have listened to the concerns raised in Committee and consider that it would be helpful to include a provision giving reassurance on that point. Amendment 6 therefore provides that the defence under clause 5 is not defeated by reason only of the fact that the website operator moderates the statements posted on the site by others.
There might of course be situations when an operator goes too far. They might, for example, moderate content on the website so much as to change the meaning of what the author had posted in a way that makes it defamatory or increases the seriousness of the defamation. In such cases, the courts will have to consider whether the operator’s actions were sufficient for them to be regarded as having posted the material.
We have considered carefully the merits of seeking to prescribe the particular circumstances in which moderation might or might not lead to the operator being regarded as having posted the material. Precisely when an operator should become responsible for a statement they moderate will depend heavily on the individual circumstances of the case. On balance, we think it is right that the courts should have flexibility in making that assessment. We consider that these are sensible and helpful amendments that will aid the effective operation of the new process under clause 5.
Amendment 7, by contrast, would remove clause 5 from the Bill. I will of course listen carefully to what the hon. Member for Bishop Auckland (Helen Goodman) has to say on the matter, but I am sorry to say that we do not consider removing the clause to be an appropriate move. The current law in this area is unsatisfactory and has created a situation in which website operators, to avoid any risk of being sued, choose to remove material from sites they host on receipt of a complaint, whether or not the material is actually defamatory. That chills free speech.
However, we recognise that when people are defamed online they need to be able to take prompt and effective action to protect their reputation. Including clause 5 in the Bill will mean that the author of a statement is given an opportunity to defend it, rather than it simply being taken down on receipt of a complaint. Should the need arise, complainants will be able to bring proceedings against those truly responsible for statements.
Mr Denis MacShane (Rotherham) (Lab)
What comment will the Minister make on the fact that Wikipedia publishes biographies of people that are then regularly amended to include untrue, defamatory and unpleasant language? Does he think that Wikipedia should inform those people whose biographies have been re-written in such a way that causes them damage and then allow a truthful statement to be made? At the moment, Wikipedia is an absolute disgrace, allowing the British National party, fascists, anti-Semites and other extremists to alter people’s personal entries.
Jeremy Wright
I understand exactly what the right hon. Gentleman is saying, but he will appreciate that the limits of the Bill are quite constrained, and it is difficult within the confines of our discussion on Report to cover all the issues he raises. What I will say is that clause 5 attempts to strike a balance between protecting freedom of speech on the internet, which he and I are both in favour of, as I am sure is the whole House, and ensuring that there is a quick and effective method by which those who, for example, have their biographies on Wikipedia amended can address the wrong that is done to them. That is the balance we are attempting to strike and that we believe is struck by clause 5 as it stands, which is why I am afraid we cannot support amendment 7. We stand by clause 5 but believe that it can be improved, which is why we ask the House not only to reject amendment 7, but to accept amendments 5 and 6 and new clause 1.
Helen Goodman (Bishop Auckland) (Lab)
I am pleased to have the opportunity to speak to Government new clause 1, Government amendments 5 and 6 and our amendment 7. Like the Minister, I will speak to them in that order. I would like to begin by welcoming the new ministerial team. It is great to see them in their places. We in the Opposition hope that they will have a more flexible approach—it already looks as though they will. I pay particular tribute to the Under-Secretary of State for Justice, the hon. Member for Maidstone and The Weald (Mrs Grant). She is only the second black woman to speak from the Government Dispatch Box, and it is a great credit to her that she has achieved that.
New clause 1 will enable the court to order a website operator to remove material if it has been found to be defamatory. That follows amendment 44, which was tabled by my hon. Friend the Member for Newcastle-under-Lyme (Paul Farrelly) in Committee. It covers the point where website operators behave in an irresponsible manner and authors cannot remove the material. I must say that some cold water was poured on the proposal by the ministerial team at the time, who were very reluctant to consider it, but, lo and behold, when we saw the notice of amendments on Monday and the Under-Secretary of State’s letter on Tuesday, we found that the Government have thought again and tabled the new clause. We think that is sensible and in line with the issues we raised in Committee, so we support the change.
Amendment 5 is about what identifying the author actually means. It states:
‘For the purposes of subsection (3)(a), it is possible for a claimant to “identify” a person only if the claimant has sufficient information to bring proceedings against the person.’
That follows the spirit, if not the precise wording, of amendment 18, tabled by my hon. Friend the Member for Stoke-on-Trent South (Robert Flello), and amendment 42, tabled by my hon. Friend the Member for Newcastle-under-Lyme, in Committee. The purpose of both amendments was to clarify the situation in which the defence is defeated because the claimant could not identify the author. Again, the Minister at the time, the hon. Member for Huntingdon (Mr Djanogly), said that he would consider it but was not very promising. He said that amendment 42
“would effectively require the website operator to provide the claimant with information that they are unlikely to hold, and that they would, in many cases, find difficult to obtain. The amendment would defeat the simple system that the Government intend to establish”.
On amendment 20, he said that the Government did not consider the processes set out in the Opposition’s amendments to be appropriate. He said:
“The aim of clause 5 is to remove the threat of liability from website operators provided that they assist claimants to identify an author of allegedly defamatory material. That process, which will be set out in regulations, will be quick, clear and practical.”––[Official Report, Defamation Public Bill Committee, 21 June 2012; c. 108-111.]
He went on to say that the Opposition amendments cut across the desire for a simple process.
We are very pleased to see Government amendment 5, which responds to the concerns we raised in Committee and it will ensure that claimants are not left in a position where they have insufficient information to take effective action against an author and would be prevented from defeating the web operator’s defence. We say amen to this amendment. However, I have some questions about amendment 5 and its coverage, which I hope the Minister will be able to clarify in his response. The first is the difficult issue of jurisdictions.
There are two aspects to jurisdiction and we discussed them in Committee. The first is the simple case in which the claimant is a UK citizen and the author is identified but lives in a foreign jurisdiction. In that instance, it might be fairly straightforward to bring proceedings in some foreign jurisdictions—if the author were French, for example, it would be a fairly straightforward matter. One can think of other places, however, such as the former Soviet states or some parts of Africa, where it would be extremely difficult to bring proceedings. The person might be properly identified, but because of the jurisdictional difficulties, it would be hard to bring proceedings. Does the Minister think this international problem is resolved? I suspect that it is not, so the Minister needs to tell us whether it is his intention to crack it or whether he thinks it is too difficult to handle here. I hope we will hear something about what can be done about this international problem.
The second type of international problem is where we have a sort of dog-legging situation: the claimant is in this country, the website operator is abroad, the author is in this country and the website operator is not playing by the rules. I would like the Minister to respond to this problem.
Amendment 6 deals with the “defence is not defeated through moderation” theme. It relates to amendment 17 that was moved in Committee by my hon. Friend the Member for Stoke-on-Trent South. The Minister responded to what we proposed by saying that the defence was not affected by having a policy of amending content in terms of moderation. This is an important issue for raising the tone on the web. I have had conversations with local newspaper editors who say that they do not want to moderate abusive language because they have been told that, as the law stands, they then become liable for defamatory statements. Obviously, if we want people to use the web, we want the tone of debate on it to be civilised and reasonable. It is important that moderation that neither enhances a defamatory statement nor removes a defence against such a statement be allowed. To this extent, we believe that amendment 6 is a good one. We are pleased that the Minister has brought it forward; it was backed by the Joint Committee on the draft Bill, too. Of course, the former Minister, the hon. Member for Huntingdon, said that the amendment was not necessary, but I am pleased that the new team sees that it is.
I deal now with amendment 7, tabled by my hon. Friend the Member for Stoke-on-Trent South. I do not want anyone to think that, having accepted the Government’s improvements to clause 5, which is an extremely weak part of the Bill, we are somehow being churlish in wanting to debate leaving out that clause. When we say we would like to see clause 5 left out, we do not mean that the issue of web operators and defamation on the web should not be addressed. Obviously, we mean that we need a more thorough reform than has been offered by the changes announced by the Minister this lunch time. Let me spell out to the Minister in a little more detail what we see as the remaining problems with clause 5. I shall set out our concerns and I hope that he will take them into account and consider looking further at clause 5—if not today, then when the legislation goes to the other place, which is more likely.
Paul Farrelly (Newcastle-under-Lyme) (Lab)
May I both welcome the new ministerial team and put on record my sadness that the hon. Member for Huntingdon (Mr Djanogly) will not pilot the Bill through? He did a lot of work on the Bill. He said he would reconsider certain details in respect of websites, and the Government have brought forward amendments, which I welcome.
New clause 1 seeks to address a perverse and, no doubt, unintended anomaly, whereby so long as a website operator complies with all the requirements and delivers up the identity of the poster, they can continue to publish content on the site. I pointed out that anomaly in Committee, using the example of a political website that, having complied, continued to run defamatory material about rivals for the sheer mischief of it. This is a live issue.
I have one principal question. The new clause seems to be very narrowly drawn. It appears to say that the claimant must first succeed in an action for defamation for the court to be able to order a website operator to take down material. The amendments I tabled in Committee, but then withdrew, were broader. They covered, for instance, circumstances where an individual could ask for an injunction ordering that material be taken down in advance of an action for libel, which might, of course, take some time to be heard. Is it the Government’s intention that courts should be able to issue injunctions or other orders only after a successful libel action? It would also be helpful if the Minister could clarify the meaning of subsection (2) of the new clause.
Jeremy Wright
I thank Members for their kind words of welcome to me and my fellow Justice Minister, my hon. Friend the Member for Maidstone and The Weald (Mrs Grant). I also echo the tribute the hon. Member for Newcastle-under-Lyme (Paul Farrelly) has just paid to my predecessor, my hon. Friend the Member for Huntingdon (Mr Djanogly), whom I thought the hon. Member for Bishop Auckland (Helen Goodman) was very harsh on, as he certainly was involved in the concessions—
Robert Flello (Stoke-on-Trent South) (Lab)
The hon. Gentleman was not in Committee.
Jeremy Wright
Well, I have read the Hansard reports and I thought the hon. Lady was harsh on my hon. Friend.
I welcome the official Opposition’s attitude to new clause 1 and amendments 5 and 6. The hon. Member for Bishop Auckland made a couple of points, however, which I shall try to address. On jurisdiction, the Government would not pretend that in this Bill we have resolved the international problem she describes. As she knows, it is an extraordinarily complex problem that requires a great deal of work. We are not there yet, and work will continue.
On clause 5, claimants can begin proceedings and obtain judgments in this country even if the operator of the website or the person making the statement is abroad. Then, of course, the issue becomes one of enforcement of judgments. There are international agreements with some countries for that, but I do not pretend that the situation is perfect, and we will look again at what we can do to improve it. The fact that we cannot do everything should not mean we do nothing, however, and this Bill goes a considerable way to dealing with many of the problems.
On amendment 6, I entirely agree with what the hon. Lady said about the desirability of moderation on websites. We do not want disincentives to that, which is why we have tabled amendment 6, and I am grateful for her support for it.
There is no consensus on amendment 7, however. I cannot subscribe to the hon. Lady’s view that clause 5 should be removed. I acknowledge that she said it is not the official Opposition’s intention simply to leave the problem in question unaddressed by removing the clause, but, for the purposes of Report stage, that is the effect of her amendment. It would remove clause 5 and it would not replace it with anything. It is important to bear that in mind.
We will be seeking views on regulations. It is important to ensure that a broad range of views are sought, and that we make sure we get things right. We hope to have secured the necessary input by the end of the year.
The hon. Lady referred to the note of proposed procedure presented to the Committee. It was never intended that that should be the regulations. That was intended as an indication of the Government’s thinking on these matters. Clearly, a good deal of detail is yet to be confirmed. I hope she will accept that that note was designed merely to give an indication of where we are headed.
The hon. Lady made a perfectly fair point about authors refusing to hand over their contact details, rightly saying that if they refuse to hand those over to website operators we will still be requiring claimants to go to court to obtain the Norwich Pharmacal orders, of which she is now intimately aware, and that will put them to expense. That is true but, again, I say to her and to the House that we are trying to strike that delicate balance between the interests of defendants and the interests of claimants. Our procedure attempts to make things easier for claimants, in respect of authors who do not want to say who they are to the website operator, in which case their comments will, of course, be taken down from the website, as well as for authors who are prepared to make their contact details available and whose details will then be passed on by the website operator to the claimant. The hon. Lady said that the Hacked Off campaign has wording that may resolve this problem. If that is the case, I am sure that Lord McNally, who is dealing with this matter in the other place, will be delighted to hear from the campaign and will give that full consideration.
As for the suggestion of placing a notice of complaint next to the posting that was originally causing the problem, I do not think it is fair to say that it is simply a problem of cost. As I understand it, potentially defamatory statements may be embedded in more than one website. We therefore also face the problem of deciding which website operator should be responsible for placing a notice of complaint next to the posting, and that technical problem should not be entirely passed over.
The hon. Lady rightly highlights a wider problem for the Government in respect of anonymity on websites. Again, it is right to say, in the interests of balance, that anonymity can in some cases be entirely justified. Whistleblowers are the most obvious example in that regard, and we would not wish to legislate in a way that prevented whistleblowers from acting under cover of anonymity. We hope that, under the procedures in clause 5, if someone maintains their anonymity and refuses to give their details to the website operator, any defamatory statement or potentially defamatory statement that is complained about will be taken down from the website. Finally, may I reassure her that nothing in the Bill conflicts with the e-commerce regulations?
I very much welcome the support of my right hon. Friend the Member for Bermondsey and Old Southwark (Simon Hughes) for new clause 1 and for amendments 5 and 6. He rightly echoes the comments of the right hon. Member for Rotherham (Mr MacShane) about the difficulty of catching up with Wikipedia. The internet in general is a fast-changing landscape. All of us, as legislators, are running to catch up with it and to do our best to ensure that we achieve the right balance between freedom of speech and the protection of those who may be defamed within that arena.
My right hon. Friend is also right to say that further consideration of the Bill will be given by Lord McNally, with whom I know he is in conversation, and by the other place. However, my right hon. Friend will recognise, to be fair to this place, that there has at least been some movement by the Government on this clause. Even with the time constraints imposed on us, we have been able to shift our ground somewhat through the amendments I have proposed today.
That brings me to the comments made by the hon. Member for Newcastle-under-Lyme (Paul Farrelly). He deserves thanks, and I pay tribute to him, for his assiduous contributions in Committee. His contribution, along with that of the hon. Member for Stoke-on-Trent South (Robert Flello), has obviously moved us towards the Government amendments that I have proposed today. The hon. Member for Newcastle-under-Lyme says that new clause 1 is narrowly drafted, and that is so to a degree. The problem is that with a wider amendment the Government would risk continuing the situation where people who run websites take down statements that they fear may be defamatory and that may leave them open to condemnation without those statements necessarily being defamatory. That is why we have made our judgment in new clause 1 that only when a judgment has been reached will the order be available for courts to make to ensure that those statements can be taken down.
Mr MacShane
Inadvertently, the Minister has just torn up, buried, driven a stake through one of the oldest principles of journalism: when in doubt, leave it out. That has saved a lot of newspapers in a lot of countries from defamation cases, so it is a very good idea. He is reversing that by saying, “Let it be published. If you have doubts, let’s see whether the person we are defaming can get an action and then a decision from a court judge.” I hope that when the Bill goes to the other place we will enshrine the very good principle of journalism: when in doubt, do not publish and leave it out.
Jeremy Wright
The right hon. Gentleman slightly over-dramatises the position; I am not saying that at all. I am saying that particular circumstances apply to the clause dealing with website operators. New clause 1 is designed to assist us in striking the balance that I have mentioned several times. We hope that the effect of the Bill as a whole will be to encourage all those inclined towards publishing statements that are potentially defamatory to think carefully before they do so. However, we want to strike the right balance between that and ensuring that people are not so afraid of having actions brought against them that they do not allow free speech to operate, either on the internet or elsewhere. I have accepted many times that this is a delicate balance to strike, but we believe that we have done our best to strike it.
Sir Peter Bottomley (Worthing West) (Con)
What would have happened if 22 years ago someone had had a website and they had published their suspicion that the police had had statements altered in regard to a great tragedy such as Hillsborough? Let us suppose that the police had then taken out a defamation action. First, would they have been disqualified from doing so as a public body? Secondly, if an individual police officer took out that action, what defence would have been available to the person who may have been present at the tragedy, and who may have had inside knowledge of what the police statements had contained and how they came out in public?
Jeremy Wright
My hon. Friend raises some fair questions. I know that he will forgive me if I do not litigate a case that may or may not have happened 22 years ago. As he knows, there is various case law on these issues as they affect public authorities and defamation—if he will forgive me, I will not go down that road. However, I will urge the hon. Member for Bishop Auckland not to press amendment 7—
Paul Farrelly
The Minister has been clear that he wishes courts to make orders only after successful defamation cases. What he has not answered is my question about the meaning of subsection (2) of the new clause, which refers to subsection (1) not affecting
“the power of the court”.
The courts, of course, have the power to issue injunctions.
Jeremy Wright
Of course they do. The hon. Gentleman is right to say that I omitted to mention that and of course that is exactly the point. The court’s right to make injunctions remains, and although interim injunctions are rare, they are still available. The purpose of the subsection is to ensure that they remain so. With that, I ask that hon. Members support new clause 1 and amendments 5 and 6, and I urge them to resist amendment 7.
Question put and agreed to.
New clause 1 accordingly read a Second time, and added to the Bill.
New Clause 2
Disapplication of Legal Aid, Sentencing and Punishment of Offenders Act 2012
‘Sections 44 and 46 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 shall not apply in relation to civil actions for defamation, malicious falsehood, breach of confidence, privacy or publication proceedings.’.—(Robert Flello.)
Brought up, and read the First time.
Robert Flello
I beg to move, That the clause be read a Second time.
I have already welcomed both new Ministers to their places while in a Committee, but I shall repeat the exercise because it is welcome to see them both on the Front Bench today. The spirit of consensus that was started on Second Reading ran into some thick treacle in the Public Bill Committee, but perhaps a fresh approach with a fresh set of Ministers will allow us to return to those heady days.
I make no apology for bringing the new clause to the attention of the House. It was tabled by my hon. Friend the Member for Hammersmith (Mr Slaughter) in Committee only for us to run out of time for a proper debate and a proper Government response. It is important that right hon. and hon. Members on both sides of the Chamber understand the situation and the context in which we propose the new clause.
If I use the term “CFAs”, I hope everyone knows that I am referring to conditional fee agreements. I will also refer to after-the-event insurance, and I might slip into calling them ATEs. Some extremely knowledgeable Members will have no problem understanding CFAs, ATEs and various other acronyms, but I hope the House in general will be clear what I mean if I use them.
Conditional fee agreements, also known as no win, no fee agreements, were first made possible in personal injury cases by secondary legislation under the Courts and Legal Services Act 1990 and were introduced in 1995. They were meant to provide greater access to justice for those who did not qualify for legal aid but were unable to afford legal representation. Defamation cases were never covered by legal aid.
From 1995 until April 2000, there was limited take-up of CFAs, as some of the costs were still borne by the claimant. The Access to Justice Act 1999, which came into effect in 2000, introduced significant changes and reduced the scope of legal aid, particularly for personal injury, on the basis that those cases could now rely on CFAs. At the same time, the 1999 Act made CFAs more usable by allowing the recoverability of the success fee and the after-the-event insurance premium. It therefore became possible for people to take legal action without the fear of losing everything because of significant cost implications, although it was still necessary, of course, to find a lawyer willing to take the case because, if they lost, the lawyer would lose his or her fee. That is an important point at which to pause for consideration, as lawyers would therefore prefer to take on only those cases that they believed they could win.
Just so we are clear, damages awarded to claimants in defamation cases are typically between £10,000 and £20,000, whereas the costs of such litigation frequently run to many hundreds of thousands of pounds, but the Government now seem to think that the fees lawyers charge will come down if fewer people can get access to justice. Two situations could arise—[Interruption.] Before I explain them, let me welcome the Secretary of State, who has just taken his place on the Treasury Bench.
Let us consider a situation in which a person feels that they have been defamed, perhaps by the media, as is too often the case and as happened in the horrendous and tragic case we heard about earlier. The claimant would currently be able to agree a no win, no fee agreement, and if the person won, he or she would keep their damages and the lawyer would be entitled to get a success fee of between 10% and 100% depending on the conduct of the case. The insurance premium could also be recovered. The cumulative effect of the cases that lawyers win helps them to offset the costs of the cases that they lose. If the claimant loses, the insurers will pay the other side’s costs.
Let me give some examples of ordinary people who have been libelled or intruded on by the media and would otherwise not have been able to afford legal representation. Robert Murat was grossly defamed after the disappearance of Madeleine McCann and won significant damages from almost a dozen news outlets. He was supported by the use of a CFA. We all know that Christopher Jefferies was “monstered” by the press after he was arrested for questioning by the police in the Joanna Yeates murder trial, despite the fact that Jefferies was released after two days without charge. It is difficult to see how he could have received fair redress without the use of a CFA.
Sir Peter Bottomley
On 24 May, in a written ministerial statement, my hon. Friend the Member for Huntingdon (Mr Djanogly) spelled out the exceptions to implementation of sections 44 and 46 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, stating that there would be a delay in implementation for cases involving mesothelioma and insolvency. He referred to the Civil Justice Council, which was to carry out a review. I suspect that I would not come to a firm view on the proposal currently before the House without hearing from that review, so that is an argument for delaying.
It is clear—I am not a lawyer or a parliamentary draftsman—that it is open to the Government to make by statutory instrument exceptions or changes. The Bill might not be the right place to deal with issues that go beyond defamation. Our debate is in order; otherwise the decision to select the new clause would not have been made by the Speaker or his advisers, although I was a bit surprised by it.
We must be clear in our minds whether aid should be qualified by cost shifting or by conditional fee agreements for both claimants and defendants. To do it only one way would be a bit odd. To do it both ways would be a bit like the old civil disputes in families—costs might rocket for issues that should be determined in different ways.
I ought to declare that I have been involved in a number of defamation actions. I have been defamed more often that I have taken action. If anyone hacked my phone, the only defamatory stuff they would hear would be my wife telling me I ought to be at home, rather than in the House of Commons Chamber.
In the early 1980s, a newspaper said that I was going to stand for one party, but switch to another one later, which was clearly defamatory. When I asked the journalist involved what had happened, he said that the story had been improved by the sub-editing process, and asked whether I was going to sue. I said no. Later, he asked why I did not do so, as everyone else got £25,000 each. That was not damaging to me, as the journalist explained what the process was and I did not mind. The idea that if I had no money I could go to a lawyer and ask them, at the expense of their other clients or of the public purse to take action, in a case in which there was not substantial damage to me, strikes me as absurd.
There are therefore counter-arguments to the cases raised by Lord Prescott and others. [Interruption.] My hon. and learned Friend the Member for Harborough (Mr Garnier) says that it is not compulsory to sue, and I made that point when I was asked why I never sued Auberon Waugh who made a living out of me for about four years.
I have, however, taken serious action in some cases. This does not fall directly under the new clause, but it is the only occasion on Report when I can mention it in passing. I was successful in making a claim that lasted a week and a half in the High Court. The newspaper group concerned was aggrieved that the jury found against it, and said that it was going to appeal on the grounds that the judge’s summing up was deficient. If that appeal had been approved, I could not have gained any more money, because the award was not going to be increased. Costs would only have gone up, and not all of them would have been recoverable. Those who look after the procedure rules ought to watch out for such abuse by big, powerful people.
Having said that, there are other issues to which I wish to pay more attention on Report. The point made by the Civil Justice Council about the opportunity to make changes by statutory instrument is a better way of dealing with the matter than by doing so in the Bill.
Jeremy Wright
May I begin by expressing pleasure at seeing my hon. and learned Friend the Member for Harborough (Mr Garnier)—if he is not a right hon. Gentleman, he should be—in the Chamber, as he brings considerable professional expertise, as we all know, to the debate? I also welcome the contributions of other right hon. and hon. Members who have spoken.
I am delighted that the hon. Member for Hammersmith (Mr Slaughter) is speaking for the Opposition. He and I spent many happy hours discussing the Legal Aid, Sentencing and Punishment of Offenders Bill, but I am sure that neither he nor I nor you, Mr Deputy Speaker, would want to rerun all those happy hours. I accept the provisions under consideration relate to the substantive law of defamation; we are not here to review LASPO, which was subject to full parliamentary scrutiny—as I recall, very full parliamentary scrutiny—before receiving Royal Assent only a few months ago.
It is important to make it clear what the Government’s proposals will do. We are not talking about removing access to CFAs. We are talking about reforming and changing CFAs. The basic rationale for those reforms is that we wish to rebalance the system to make it fairer between claimants and defendants and correct the anomaly whereby those who bring cases have no incentive to keep an eye on legal costs. At the moment, the recoverability of success fees and insurance premiums from the losing side can have the perverse effect of preventing defendants from fighting cases, even when they know they are in the right, for fear of disproportionate legal costs if they lose.
High and disproportionate costs have a negative impact, not just because they can deny access to justice but, more broadly, because they can lead people to change their behaviour in damaging ways because of the fear of claims. Nowhere is that more true, as has been said in our debate, than in relation to responsible journalism, as well as in relation to academic and scientific debate. In MGN v. the UK—the so-called Naomi Campbell privacy case—in January 2011, the European Court of Human Rights found that the existing CFA arrangements, with recoverability in that instance, which the new clause would preserve, were incompatible with the right to freedom of expression under article 10 of the European convention on human rights.
Editors and journalists have long warned of the chilling effect of the current libel regime and argued that part of the problem is the huge costs that no win, no fee cases impose. However, as others have said, defendants are not always rich and powerful newspapers—they are also scientists, non-governmental organisations, campaigners, academics and on occasion, it seems, my hon. Friend the Member for Worthing West (Sir Peter Bottomley). It is important that when we discuss balance—this has been a theme of our conversations and debates so far—we recognise what else is going on. We should recall that clause 1 says that defendants will not be subject to actions for defamation, whatever their means, unless the claimant can demonstrate that he or she has suffered serious harm. That is important in this context. It is also important to recognise that we intend to make procedural changes—this relates very much to the remarks by my hon. Friend the Member for Worthing West—to try to reduce the costs that are paid by both sides, or either side, in the course of defamation actions. We believe that considerable progress can be made in that regard.
The CFA changes that we intend to make will apply to all areas of civil litigation as set out in the Legal Aid, Sentencing and Punishment of Offenders Act, and will do so from April 2013, apart from, as my hon. Friend reminded us, in mesothelioma and insolvency cases. The Government believe that any further exceptions to the CFA reforms are unnecessary. Our CFA reforms will ensure that meritorious claims can still be brought, but at more proportionate cost. However, I share the concern that individuals who are not wealthy or powerful sometimes need to bring defamation or privacy cases. Nothing in our proposals should prevent this where a case is a good one.
As the hon. Member for Newcastle-under-Lyme (Paul Farrelly) said, there is a degree of cross-party consensus on this. In March 2010, the then Labour Justice Minister, Lord Bach, said:
“There is a substantial body of opinion that 100 per cent recoverable success fees should not continue in defamation cases.”—[Official Report, House of Lords, 25 March 2010; Vol. 718, c. 1156.]
That was on the back of a consultation that said that
“immediate steps are needed in respect of defamation proceedings”.
It was the Labour Government’s policy to reduce the impact of success fees in defamation and privacy cases.
The Bill and the procedural reforms that we intend to take forward with it are about reducing the complexity and therefore the expense involved in defamation cases. In order for those aims to be achieved, on 27 March 2012 Lord McNally gave a commitment in the other place that we will look at the rules on costs protection for defamation and privacy proceedings. That is very much in accordance with what my right hon. Friend the Member for Bermondsey and Old Southwark (Simon Hughes) said. We will look at the rules for costs protection for defamation and privacy proceedings before the defamation reforms come into effect. I repeat that commitment here today. There is clearly more work to do, and I know that my noble Friend will be keen to consider the matter further.
In view of those remarks, I hope that the hon. Member for Stoke-on-Trent South (Robert Flello) will, on reflection, feel able to withdraw new clause 2.
Robert Flello
The hon. and learned Member for Harborough (Mr Garnier) suggested that the Defamation Act 1999 was a denial of justice. If he feels that way, he must be incredibly upset about what happened under the Legal Aid, Sentencing and Punishment of Offenders Act, which really is a denial of justice. He, like many others, said that the Minister will take that point on board. I will return to what the Minister has said in a moment.
As many Members have said, it is a pity that what was promised is not in the Bill. My hon. Friend and neighbour the Member for Newcastle-under-Lyme (Paul Farrelly) referred to my right hon. Friend the Member for Blackburn (Mr Straw) being subject to a cross-party ambush. I suspect that after Monday night the Minister will have a lot of sympathy with what happened to my right hon. Friend. My hon. Friend and neighbour said that responsible journalists are made grubby by the scurrilous ones, and that we cannot have this licence to libel.
The right hon. Member for Bermondsey and Old Southwark (Simon Hughes) understands the problem, because he had a CFA for his claim against News International. If he was concerned about the financial implications of taking a case without CFA, what about constituents who are in a far worse position? That goes to the crux of our concerns and is the reason for new clause 2.
Jeremy Wright
Let me be clear about what I said: it has long been argued by newspaper editors that there is a chilling effect on freedom of speech and some of the things under discussion, and I think there is broad agreement throughout the House that there is a risk that some defamation actions could have that effect. The costs regime has an impact on that. I then went on to say that not every defendant is a newspaper, and certainly not a well-funded newspaper. That was the substance of my point.
Robert Flello
I appreciate the Minister’s clarification, but I think that the newspapers will always claim that there are chilling effects. On balance, this will hit the likes of the McCanns and the Dowlers—people whom we should really be making sure are not hit.
In conclusion, I will push the new clause to a vote, because it is on a matter of principle. We need to send a message that when a promise is made, we expect to see it fulfilled.
Question put, That the clause be read a Second time.