Defamation Bill

Lord Clarke of Nottingham Excerpts

Tuesday 12th June 2012 Commons Chamber

[The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)]

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

I am confident that everybody in this Chamber agrees that freedom of expression is the cornerstone of our democracy. In an open society, people should be at liberty to debate a subject without fear or favour, whether the matter be political, scientific, academic or anything else. That is how power is held to account, abuses of authority are uncovered and truth is advanced. But freedom of speech does not mean that people should be able to ride roughshod over the reputations of others without regard to the facts. Life and career can be destroyed by false allegations that go unanswered. The issue for our defamation laws is ultimately one of striking the right balance between protection of freedom of expression on the one hand and protection of reputation on the other.

I share the mounting concern of recent years that our defamation laws are becoming out of date, costly and over-complicated, and that they are at risk of damaging freedom of speech without affording proper protection. No one can be satisfied with a situation where the threat of lengthy and costly proceedings has sometimes been used to frustrate robust scientific and academic debate, to impede responsible investigative journalism and to undermine the good work undertaken by many non-governmental organisations. The practice of issuing gagging writs has been resorted to by many people over the years. I once had the privilege of receiving one myself from Mr Robert Maxwell, but we must make sure that the practice is not encouraged to spread further. Nor can it be a matter of pride when powerful interests overseas with tenuous connection to this country use the threat of British libel laws to suppress domestic criticism in cases of so-called libel tourism.

Turning to what is the most innovative and difficult part of the Bill, I am also very concerned that our current libel regime is not well suited to dealing with the internet and modern technology. Legitimate criticism sometimes goes unheard because the liability of website operators, as providers of the platform on which vast amounts of information is published by users, puts them in the impossible position of having to decide when to defend or censor information. Meanwhile, individuals can be the subject of scurrilous rumour and allegation on the web with little meaningful remedy against the person responsible. We need to refocus and modernise the system so that it offers effective protection, whether offline or online, both for freedom of speech and the reputation of those who have been defamed.

Those are the main reasons for the introduction of the Defamation Bill. It fulfils the commitment in the coalition agreement to review the law of libel while protecting legitimate free speech. It also, of course, draws heavily on the draft Bill published last year. I do not want to tempt fate, but I must say that I think that thus far producing a draft Bill and consulting has proved to be a very good way of proceeding on what could otherwise have been an extremely contentious issue.

The draft Bill benefited from detailed, and very helpful, scrutiny by a lot of interested people. We were particularly helped by the Joint Committee, and I am grateful to all who contributed to it, especially my old friend and colleague Lord Mawhinney and his fellow Lords for their extremely helpful contribution, which we have reflected in the Bill.

[Sir Peter Bottomley (Worthing West) (Con)]

On the subject of that Committee, may I say that it was my experience—which I think was shared by others who served on it—that the attitude of the Minister, Lord McNally, especially in answering questions and being very open about what was in his mind and in the mind of the Department, was very useful? Such openness brings results.

[Mr Clarke]

I am grateful to my hon. Friend for those comments, because it is one of the ironies of this Bill starting in the Commons that the member of my ministerial team who has devoted the most time to producing it is unable to introduce it. My ministerial colleague, my hon. Friend the Member for Huntingdon (Mr Djanogly), will wind up this debate, and both he and I would acknowledge that our noble and right hon. Friend Lord McNally played a leading part in the whole consultation and scrutiny process.

Before I discuss the detail of the Bill, let me say that parliamentary debate always elicits a broad spectrum of opinion, and defamation reform is no exception. At one end of the range of views are still some who would like this country to move towards the United States’ model, with free expression always trumping other considerations and with little or no legal redress for those who have been defamed. I find that idea unattractive and think that the current process of American electioneering shows the dangers. The well-financed production of untrue or dubious personal allegations can be taken to great length if there is no adequate protection. At the other end of the range are a few people who think, particularly in light of recent media excesses, that we should teach newspapers a valuable lesson by encouraging anyone whose feelings have been hurt to sue them. I am not sorry to say that the Bill will disappoint those with either extreme of opinion, which I hope will be echoed very little by hon. Members on any Benches in this House.

[Ian Paisley (North Antrim) (DUP)]

I agree that no one wants to see the Americanisation of our libel and slander laws. However, the right hon. and learned Gentleman referred to Lord Mawhinney’s report and chairmanship of the Joint Committee. Lord Mawhinney made it very clear that access to justice was critical for the ordinary citizen. Does the Secretary of State agree with me that raising the “substantial harm” test raises the bar so high that the ordinary citizen will never go into the libel courts to defend themselves?

[Mr Clarke]

No; I shall try to address that issue throughout my remarks. The package that we have produced is aimed at reducing costs and producing more effective remedies for a wide range of people, as well as at reducing the burdensome cost for those trying to defend themselves against actions. I shall keep making remarks that address the hon. Gentleman’s concerns, because I am anxious to ensure that we are not making things more expensive or difficult for any litigant.

Our intention is to correct the worst excesses of our current system in which, particularly for the powerful and wealthy, the law makes it rather too easy to menace responsible publishers with libel proceedings. However, we do not want sensible mainstream reform to come at the cost of giving further licence to parts of the media to publish whatever they like without regard for the truth. Equally, we want to ensure—this is relevant to the point made by the hon. Member for North Antrim (Ian Paisley)—that it is possible for ordinary people to get a remedy, but only where their reputation has been seriously harmed. We do not want to open the floodgates to endless litigation in our courtrooms by people whose feelings have been hurt but who have not suffered any particular damage. Of course, the Bill is only part of the story. No doubt the conclusions of Lord Justice Leveson’s inquiry will inform broader reforms to press regulation in due course.

[Zac Goldsmith (Richmond Park) (Con)]

It seems that a person would be able to take action only if a single statement caused serious harm to their reputation, but it is usually the case that people find themselves being mercilessly bullied, harassed and hounded by newspapers over a long period. There might not be a single statement that would definitively destroy their reputation, but they nevertheless find themselves being dragged through the mud without there being any individual act meriting the kind of action that the reforms would allow. In those circumstances, what kind of defence would an individual have against a £100-million organisation that is committed to shredding their reputation?

[Mr Clarke]

I think the law of libel offers equal protection in both situations. One single statement can be very defamatory, but so can a series of statements as my hon. Friend rightly says. That has always been the case and I do not think that anyone has ever drawn such a distinction in the law of defamation. The test will be applied to the total conduct of which the plaintiff is complaining and against which he is seeking a remedy. I have alongside me my hon. and learned Friend the Solicitor-General, who used to practise privately in this particular field. He seems to agree with my judgment on this matter, so I think we can put that fear to rest.

Let me deal with the point made by the hon. Member for North Antrim, because the next part of what I have to say is very relevant here. As I have said, alongside the Bill we are seeking to bring about a significant reduction in the sometimes punitive costs in libel cases by introducing a series of procedural changes. Those changes come on top of the Jackson reforms—this involves the Legal Aid, Sentencing and Punishment of Offenders Act 2012—to the no win, no fee conditional fee arrangements. The reforms will reduce the burden on both plaintiffs and defendants and help to reduce overall legal bills, without preventing claimants with strong cases from finding lawyers to represent them.

Our first priority has been to reform the law so that trivial and unfounded actions for defamation do not succeed. Clause 1 therefore raises the bar, by a modest extent, for a statement to be defamatory by proposing that it must have caused or be

“likely to cause serious harm to the reputation of the claimant.”

That was carefully considered in consultation by a lot of respondents. Whereas the draft Bill sought views on a test of substantial harm, which was intended to reflect current law, the new clause drew on the views of the Joint Committee on the draft Bill and the balance of opinions received in the consultation by nudging the threshold up by a modest extent. It will be for the courts to determine, in the light of the individual circumstances of a case, whether the test has been met. However, we hope it will give more confidence to defendants in, for example, the sorts of cases brought against non-governmental organisations and scientists in recent years.

Alongside a stronger test, we also want to simplify and clarify the defences available to those accused of libel. As they stand, the defences are sometimes unnecessarily complicated and too narrowly focused on cases relating to mainstream journalism, rather than the online world, NGOs, academics, scientists and so forth.

[Mr Edward Leigh (Gainsborough) (Con)]

Everyone wants a vigorous press commenting robustly on matters of public interest. Too much of our press, however, has sought to earn a living in recent years by destroying people’s reputations. Will the Secretary of State reassure the House that his new defences of “honest opinion” and “in the public interest” will not allow the likes of the Murdoch press to drive a coach and horses through any person’s private life?

[Mr Clarke]

I agree with some of what my hon. Friend says. No doubt we all get infuriated by much of what appears in the newspapers. I personally find that much of the popular press express views that I regard as ridiculous, right-wing and extremely annoying to my view of political debate, but it is important in a democracy that people such as me are subjected to that. Our test of whether we live in a society where free speech is allowed is whether we allow free speech to people with whom we disagree. That can involve matters of taste. Some of what my hon. Friend complains about concerns the ridiculous offshoots of the celebrity culture in which we now live. We can all freely express opinions about these things, but I would be hesitant indeed if any Government came to the House to legislate on such matters. In my judgment, if our press wish to be scurrilous and irresponsible, up to a point they are entitled to be so.

[Kevin Brennan (Cardiff West) (Lab)]

Is the Secretary of State’s position, then, that an ordinary citizen who has had an untruth published about them should have no remedy unless they can prove that it has caused substantial harm to their reputation?

[Mr Clarke]

It must be a serious matter causing serious harm to their reputation. Most Members have things printed about them twice a week that cause them annoyance and which they would vehemently start arguing about if they had the opportunity to do so in front of readers. It is serious matters that must be subject to the serious process of defamation law in the pursuit of a remedy—a financial remedy, an apology or whatever—in a court of law.

[Mr David Lammy (Tottenham) (Lab)]

Will the Secretary of State say a little more about this matter? He will understand that once the law is codified, judges will interpret what he has said. Does he recognise that for ordinary members of the public—for example, someone running a small business to whom harm can be caused if a local paper runs a particular story—what is serious is quite different from what is serious for celebrities and those in public life?

[Mr Clarke]

I agree. I stress that it will be for the courts to determine what amounts to serious harm in an individual case, but I agree that someone whose business is damaged—albeit by a local allegation in a local newspaper—could almost certainly demonstrate serious harm. Any citizen against whom a serious and unfounded allegation of personal misconduct is made will probably be able to demonstrate that it has done serious harm to his reputation. The hurdle is raised a little, but I trust that it will not bar any plaintiff who has had serious problems as a result of a publication.

I was moving on to deal with the defences. Clauses 2 and 3 replace the common law defences of justification and fair comment with new statutory defences of truth and honest opinion. These are areas where the law has become increasingly complicated and technical over the years. In our opinion, the revised approach should simplify the situation, ensuring that the defences are available without so many endless and costly disputes over detail and interpretation. Alongside the new defences of truth and honest opinion, we are introducing, for the first time, a statutory defence of responsible publication in the public interest. This is based on the common law defence that has been developed by the courts in recent years following the case of Reynolds v. Times Newspapers but expressed in clear and flexible terms. It provides a defence where the defendant can show that the allegedly defamatory statement is, or forms part of, a statement on a matter of public interest, and that he or she acted responsibly in publishing it.

The relevant clause identifies specific factors to which the court may have regard in deciding whether the defendant has acted responsibly, based on current case law. However, we do not want those to be interpreted as a checklist or a set of hurdles for defendants to overcome, and the list is intended to set out factors in an illustrative, non-exhaustive way so courts will retain flexibility. It is not our intention to change the Reynolds defence; we have sought to set it out in statutory form in a way that we hope will help.

[Mr Robert Buckland (South Swindon) (Con)]

I am listening carefully to what the Lord Chancellor is saying about the dangers of the non-exhaustive list setting a series of hurdles. Does he not think that a catch-all clause allowing the courts to look at all the circumstances of the case would cure that potential mischief?

[Mr Clarke]

As I said, we are not intending to fetter, as it were, the discretion of the court in the end to apply reasonable judgment to the particular circumstances of a particular case; this is meant to be illustrative. This is work that we have set out, and we will reflect on my hon. Friend’s point as we continue to scrutinise the legislation as it goes through this House.

Finally in this area of defences, we are extending the circumstances in which absolute and qualified privilege can be asserted. The defence of privilege is based on the principle that there are certain situations in which it is for the public benefit that a person should be able to speak or write freely, and that this should override or qualify the protection normally given by the law to reputation.

Clause 7 extends privilege to summaries of material as well as to reports and copies; broadens the international scope of the circumstances in which privilege applies; and clarifies that qualified privilege extends to reports of scientific and academic conferences and of press conferences. In a further important step forward for the protection of scientists and academics, clause 6 creates a defence of qualified privilege for peer-reviewed material in scientific and academic journals, as recommended by the Joint Committee on the draft Bill. The clause defines key elements of the peer-review process to ensure that publications with appropriate procedures will now be given the protection of this new defence.

All told then, I would argue to the House that the Bill is introducing sensible reform to protect freedom of expression by raising the bar for a claim and bolstering the defences available, with specific benefit for scientists and journalists. But we want to go further in some of the main areas of public concern, in particular by addressing libel tourism, which has sometimes caused damage to this country’s reputation around the world, as we are normally regarded as advocates of freedom of expression, in particular. Relatively few foreign libel cases ultimately end up in a British courtroom, but I am concerned by the use of threatened proceedings by wealthy foreigners and public figures to stifle investigation and reporting. Clause 9 addresses the issue in a measured and proportionate way, although it has had to be drafted to avoid any conflict with European law. It clarifies that a court will not hear a case against someone who is not domiciled in the UK or an EU member state unless satisfied that England and Wales is clearly the most appropriate place to bring an action. It should help ensure that powerful interests around the world will not so easily be able to use British justice to gag their critics —a move that I hope will be welcomed across the House.

[Ian Paisley]

I appreciate the Secretary of State’s generosity in giving way on this point. He said that our courts are becoming—or could become—a laughing stock as regards libel tourism. Does he not agree that if someone is libelled or slandered by a British person or a British publication, the victim of that libel or slander has the right to seek remedy in this jurisdiction given that they have been victimised by that publication? Indeed, the accusation of libel tourism amounts only to about a dozen cases over past years and it really is not as big a problem as some people are suggesting.

[Mr Clarke]

I did not say that I thought our courts would be a laughing stock; I think that our libel and defamation laws are rather good and that is no doubt one reason people try to access them. We are trying to improve them. I do not think that our standards of justice are being hurt, but different societies will form slightly different judgments of where the balance lies between freedom of expression and giving a remedy to people who are defamed. I have already said that the United States of America, which resembles this country in some ways, takes a very different view of what is actionable and defamatory if it is produced in that country.

The problem arises when people come to this country because our system is more generous to their point of view to bring cases that have little or nothing to do with the United Kingdom. I give the example of a Saudi business man, say, threatening an American publication with an action because of an article that has had tiny circulation in the United Kingdom. That is a hypothetical case, but the Saudi would be using the nature of British law to threaten a publication in an entirely different jurisdiction. That is the evil we are trying to address. We are not trying to stop British publications being sued by anybody who can come here and show that we are the right jurisdiction.

[Ian Paisley]

I again appreciate the Secretary of State’s generosity. The Saudi gentleman does not exist, as the Minister has said, so let us consider the cases that do exist. A governor of the state of California sued a British newspaper because it carried inaccuracies about him and sued the publisher of a British book that claimed he was a Nazi sympathiser. Other prominent individuals come to this country who have been seriously slandered by publications; surely they have the right to seek a remedy here.

[Mr Clarke]

If anybody is defamed by a publication in this country or wants to act against a defendant who is domiciled in this country, they will be able to bring an action. I do not regard that as libel tourism. The problem arises when two people in the same country start suing each other because half a dozen copies of some foreign language publication have in theory been available on some bookstall in London and this jurisdiction is chosen to try to get a remedy. I hope that what we have done will ensure that people with powerful interests around the world will not so easily be able to use our courts.

[Mr John Whittingdale (Maldon) (Con)]

Can the Secretary of State confirm that the Saudi business man almost certainly exists? The Rachel Ehrenfeld case was heard in this country when there was no connection other than the 23 copies of her book that were sold, yet it resulted in the passage of the Libel Terrorism Protection Act in New York. It is a mark of shame against this country that New York state thought it necessary to pass an Act specifically aimed against this country.

[Mr Clarke]

I made my remark about the case being hypothetical to avoid being drawn into arguments about that case, which is rather familiar to people who know this subject. There are arguments about how far the plaintiff had connections with this country and a reputation here, but as it happens I was producing the example of a Saudi and an American purely hypothetically and I do not think I should get drawn into the merits of a past case. My hon. Friend, who is an expert in this field, rapidly understood why those particular nationalities had leapt to my mind when I gave the example.

Alongside these adjustments in the law to help support freedom of expression, I want to ensure that effective remedies are available for those defamed. Often what most concerns claimants is not financial compensation, but meaningful public clarification that a story was wrong. We have therefore included provisions in clause 12 extending existing powers to enable the court to order publication of a summary of its judgment. Parties will be encouraged to reach agreement, where possible, on the contents of the summary and issues such as where, when and how it is to be published. However, in the absence of agreement, the court will be empowered to settle the wording of the summary and give directions on those other matters.

In addition to protecting freedom of expression and reputation, the Bill seeks to modernise the law. Our biggest difficulty has been in relation to the web, the internet and so on. Currently, website operators are in principle liable as publishers for everything that appears on their site, even though the content is often determined by their users, but most operators are not in a position to know whether the material posted by their users is defamatory or not, and very often, faced with a complaint, they will immediately remove material. The Government want a libel regime for the internet that makes it possible for people to protect their reputations effectively, but which ensures that information online cannot be easily censored by casual threats of litigation against website operators.

[Steve Rotheram (Liverpool, Walton) (Lab)]

Will the Secretary of State give way?

[Mr Clarke]

Surely; then I will get on to our proposed approach to that rather difficult problem.

[Steve Rotheram]

I broadly support the Bill, especially clause 5, which the right hon. and learned Gentleman is explaining. Can he give any comfort to the parents of Georgia Varley, a Liverpool youngster who was tragically killed and whose family and friends set up an RIP website, which trolls then used to abuse and disparage her death in a sickening and vile way? Can he outline specifically the proposals to tackle such abuse by internet trolls who hide behind the anonymity of a computer to abuse those remembered on RIP websites?

[Mr Clarke]

I cannot possibly comment on an individual case and individual possible action. I anticipate that the difficulty may be that the defaming of a deceased person always gives rise to questions of whether any action is possible. Trolling is an extremely unpleasant, curious activity which some very nasty people appear to be going into. There have already been quite a lot of prosecutions for trolling, but we think the public are entitled to proper protection against it.

Our proposed approach, under clause 5, will provide website operators with a defence against libel, provided they follow a procedure to put complainants in touch with the author of allegedly defamatory material. This will strengthen freedom of expression by ensuring that material is not taken down without the author being given an opportunity to defend it. Conversely, it will strengthen protections by enabling people who have had their reputation seriously harmed online to take action against the real author and bring proceedings against them if the matter cannot be resolved by other means.

[Dr Julian Huppert (Cambridge) (LD)]

This is indeed a complex issue. Can the Justice Secretary confirm that this is an optional defence and that web operators would be entitled not to follow those regulations and not to use the defence, and that they would still be covered by the defences available under the e-commerce directive if they so chose?

[Mr Clarke]

That is entirely correct, but of course those web operators would also be vulnerable to possible action because they had not availed themselves of the process, which would give them one way of proceeding if they chose to do so. We are not replacing other remedies which might well be available against a publisher who took no steps to inform the defamed person of where the defamatory matter was coming from.

It will be very important to ensure that these measures—clause 5 and those associated with it—do not inadvertently expose genuine whistleblowers, and we are committed to getting the detail right to minimise that risk. We will continue to consider that and eventually some of it will have to be covered by regulation.

Concern has also been expressed about the impact of the current law on secondary publishers more generally, including booksellers and newsagents. In accordance with our aim of ensuring that secondary publishers are not unfairly targeted and action is taken against the primary publisher wherever possible, clause 10 removes the possibility of an action for defamation being brought against a secondary publisher except where it is not reasonably practicable for the claimant to bring the action against the author, editor or commercial publisher of the material.

A further related proposal to modernise the libel regime is the introduction of a so-called single publication rule. Information online can be copied instantly, stored indefinitely and accessed long after physical forms of publication, yet the current regime allows additional claims for such cases of “republishing”. The proposed rule seeks to reconcile the need to protect individuals from repeatedly having to face the same defamatory comments with the need to avoid open-ended liability for publishers when old material is accessed years later, which has the potential severely to inhibit freedom of expression. Therefore, the Bill includes a provision that will prevent an action being brought in relation to publication by the same publisher of the same, or substantially the same, material after a one-year limitation period has passed.

Agreeing a libel regime fit for the realities of the 21st century is not straightforward, but these steps constitute sensible reform to ensure that freedom of expression and protection of reputation are possible both online and offline. Modernisation, however, must also extend to the cost and length of libel cases, which are increased in current law by the presumption of jury trial. I am normally a strong defender of the principle of jury trial in criminal cases and always have been—I assure my right hon. and hon. Friends and everyone else that my political arteries have not suddenly hardened and affected my views on that.

In practice, jury trials have been infrequently used in libel cases in recent years and the majority of cases are now heard by judges alone. I believe that it makes sense to recognise that reality in law by discontinuing the presumption of jury trial, which in this case has become a kind of noble fiction that creates real practical problems for one or other of the parties. It greatly increases the cost and time taken in defamation proceedings, which can be done deliberately to advantage one or other of the parties in negotiations and bargaining. Many basic legal issues that could otherwise quickly be sorted out by a judge sitting alone, such as deciding the meaning that allegedly defamatory material can have, cannot be resolved until full trial, whether or not a jury is ultimately used. That causes unnecessary delay and expense, to everyone’s detriment.

Recognising that judges should normally rule on libel cases is also part of the wider package of procedural proposals, to which I referred a few minutes ago, that we are taking forward alongside the Bill to help reduce costs and encourage settlements. It goes hand in hand with a new preliminary procedure that we are developing to resolve key issues, such as meaning, at as early a stage as possible. Of course, there might remain occasions when jury trial is appropriate, so the Bill retains the court’s discretion to order that when it considers it appropriate to do so.

[Mr Leigh]

Some of our greatest defamation trials and greatest speeches have been in front of juries. For a Conservative, what is wrong with a noble fiction?

[Mr Clarke]

A great deal of the argument in defamation action often turns on preliminary points, such as whether a particular statement is capable of having the meaning that one of the parties attributes to it. It is much easier if a judge can deal with those preliminary matters so that the whole thing does not have to go to a full trial. Also, there is absolutely no doubt that a great deal has to be done to explain to a jury what this particularly difficult area of law is all about. The whole thing takes longer—it has to when 12 lay men and women are hearing it—which adds to the expense. Not only does that add to the costs and delays when somebody is involved in an action, as I have said, but because they sometimes threaten bringing claims before they go to court, once we start getting into the costs that might be involved in a jury trial the threat is made much more substantial by holding all this—

[Mr Speaker]

Order.

[Mr Clarke]

I am sorry for turning my back on you, Mr Speaker.

[Mr Speaker]

Yes. I have been listening to the right hon. and learned Gentleman with great interest and respect for the best part of a quarter of a century, as he knows, but the Secretary of State is a compulsive “swiveller”. Whenever he is intervened on by one of his right hon. or hon. Friends, he invariably swivels round. But the rest of the House does not want to lose him; we are hanging on his every word.

[Mr Clarke]

I shall try to swivel in your direction more frequently, Mr Speaker. In case you missed it: if you ever have to bring a defamation action, it is unlikely to be heard before a jury. But I do apologise.

[Mr David Davis (Haltemprice and Howden) (Con)]

I, like my right hon. and learned Friend, am hoist with two petards: one is my belief in the principle of jury trial; the other is the practicalities that he quite rightly outlines. What I want to understand in his description of the Bill is under what circumstances a jury trial will be triggered. What are the criteria that will trigger a jury trial instead of a judge-only trial?

--- Later in debate ---

[Mr Clarke]

The decision is deliberately left to discretion, so in the end an experienced judge will have to decide whether a case is suitable, but one can conceive of a few exceptional cases whereby the whole thing depends on a question of the veracity of two teams of hard-swearing witnesses, and whereby the judge is persuaded that, because of the particular nature of the case, he would be helped by the judgment of a range of men and women, from a variety of backgrounds, who would bring their collective wisdom to deciding which side to believe.

That is simply one off-the-cuff example which comes to my mind, but if the whole thing turned on an elaborate argument about the application of the defamation laws to the particular circumstances of the publication of a scientific journal, for example, that would be a wholly unsuitable case to leave to a jury, and the whole thing would take longer and cost a lot more, even if the jury got it right in the end. That is the problem we are trying to address.

[Mrs Helen Grant (Maidstone and The Weald) (Con)]

Does my right hon. and learned Friend agree that the proposal could assist with earlier settlement, not just with reducing the length or cost of a hearing?

[Mr Clarke]

I agree strongly with that extremely good point. The more these things can be dealt with by way of a preliminary judgment by a judge, the more settlements we will get, because sometimes the whole thing really turns on one point, which can be dealt with much more quickly if a jury is not involved.

[Mr Lammy]

Will the Secretary of State give way?

[Mr Clarke]

I think I had better conclude, because I have taken—as I usually do—quite long enough.

This Bill is, in our opinion, a sound piece of modernising reform that we have approached in a balanced way. We have sought in particular to defend the interests of free debate. Accordingly, the Bill contains a range of measures which will greatly strengthen the environment for open and robust scientific and academic debate, including measures to apply across the piece, such as the introduction of the serious harm test, the simplification and clarification of defences and a single publication rule, together with specific ones, such as the extension of qualified privilege to peer-reviewed material and to reports of scientific and academic conferences.

I believe that this package of measures rebalances the law in a fair and effective way so that free speech is not unjustifiably impeded and debate about issues of public importance is able to thrive, while still providing appropriate remedies for those who have been defamed. It also updates the law for the first time to address properly the most pressing challenges raised by the internet and social media in relation to defamation. I commend it as a sound, reforming Bill.

I tempted fate earlier, and the Solicitor-General, my hon. and learned Friend the Member for Harborough (Mr Garnier) and I will tempt fate again, because we believe that the process of producing a draft Bill and getting this far has produced a quite extraordinary degree of consensus that I, for one, would not have thought possible to achieve when we first embarked on modernising the law on defamation. So little interest has been attracted abroad that even the media, which one would have thought would be obsessed with the issue, are paying little attention to the debate.

There is still a debate to be had, and this House will demonstrate its usefulness in scrutinising the legislation, just as the Joint Committee on the draft Bill has shown what can be achieved in consultation so far, but I hope that in the end we will continue to command cross-party support in our efforts to address long-standing weaknesses in our defamation regime, and I commend the Bill to the House.

--- Later in debate ---

[Sadiq Khan]

I thank the hon. Gentleman for raising that concern. I am afraid that many colleagues will be familiar with the type of bullying, harassment and intimidation that he talks about, which ultimately leads to people considering taking their own lives. When the Government drafted the Bill, they were keen to address a void that has not previously been filled. Clause 5 will allow websites to have action taken against them, but websites will be given greater protection from being sued if they help to identify those posting defamatory messages. It is hoped that that will lead to greater responsibility among both those who operate websites and those who post messages. People will know that they when they put a post on a website, it is possible that their details will be passed on to a potential claimant bringing an action.

[Mr Kenneth Clarke]

Does the right hon. Gentleman agree that it would be helpful in that context to look at what else can be done about bullying, as opposed to defamation? The House should bear in mind section 127 of the Communications Act 2003, which creates an offence of sending or causing to be sent

“by means of a public electronic communications network a message or other matter that is”

genuinely

“offensive or of an indecent, obscene or menacing character”.

That gives rise to many prosecutions, but the right hon. Gentleman is probably right that it does not give rise to many defamation actions. It must be looked at in the round. We agree that people abusing the internet to abuse people to whom they happen to have taken a dislike is an increasing problem.

[Sadiq Khan]

A chilling effect can sometimes be a good thing. A prosecution brought against someone involved in such behaviour can lead to others not doing the same thing for fear of prosecution. The Justice Secretary is right to remind the authorities, who might be watching the debate or might read of it, that they have tools at their disposal to bring criminal prosecutions.

Subsections of clause 5 set out the circumstances in which the defence could be defeated. This is a key area in which technological developments have outstripped our laws. As has been said, a duty will be placed on internet service providers to identify internet trolls without victims needing to resort to costly legal action. The Opposition welcome that development, but the detail will be provided in regulations that we have not seen. It is important that this well intentioned clause does not inadvertently lead to a website being required to disclose the identity of a whistleblower when they are the source of a post on a website, or to websites being easily censored by casual threats of litigation against their operators.