Oral Answers to Questions

Robert Flello Excerpts

Tuesday 18th September 2012 Commons Chamber

[Damian Green]

I agree with my hon. Friend that mediation services do a very good job. He mentions Victim Support, which has, of course, asked all PCC candidates to sign up to five pledges. Many candidates of all parties—and, indeed, independent candidates—have signed up to those pledges. With the range of services involved, I repeat that it will be for the PCCs to make a decision, and they are best placed to do so in their individual areas.

[Robert Flello (Stoke-on-Trent South) (Lab)]

Victims will almost certainly be adversely affected when PCCs are elected in November, but the Government’s plans for the criminal injuries compensation scheme could make that even worse. After we forced last week’s dramatic eleventh-hour retreat, victims rightly want to know the Government’s next steps. Will the Minister confirm whether the Government propose to try once again to shove this deeply unpopular proposal through, rewrite it, apply cosmetic changes in the hope of dampening down the opposition on their own side or, as we hope, to scrap it altogether?

[Damian Green]

In the first instance, I find it extraordinary that the hon. Gentleman should attack all PCC candidates, including his own right hon. Friend the Member for Cardiff South and Penarth (Alun Michael), who has just announced that he is a PCC candidate, and that the hon. Gentleman is telling the people of south Wales that his right hon. Friend would not spend the money as well as I would. That is an extraordinary assertion. As for the second half of the hon. Gentleman’s extraordinary question, we will, of course, look at what best to do, and we will want to bring back the scheme, but in a better form so that individual cases can be treated in a more individual and sensitive way. I assure him that if he condemns every PCC candidate as being unable to deal with public money before they are even elected, he really does not understand democracy.

Defamation Bill

Robert Flello Excerpts

Wednesday 12th September 2012 Commons Chamber

[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.

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[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]

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

[Robert Flello]

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

Sylvia Henry was a social worker who was wrongly accused of being negligent in the Baby P case. As a consequence, she was horrendously defamed and banned from carrying out child protection work. The CFA helped her to challenge the press’s accusations. A newspaper we have heard mentioned many times today, The Sun, apologised after reporting that Mr Abdul Patel was an evil terrorist who had been jailed for his part in a transatlantic terror plot. Mr Patel has never, as the paper acknowledged, had any involvement with terrorism acts. He was helped by a CFA. Finally, Elaine Chase was a paediatric community nurse who was falsely accused by The Sun, on the front page and inside that paper, of hastening the deaths of 18 terminally ill children by over-administering morphine. She fought and won her case with the support of a CFA.

We will now have a double whammy under this Bill and the Legal Aid, Sentencing and Punishment of Offenders Act 2012, whereby a claimant will, quite rightly, have to pass a higher test to bring the claim but will also need the financial resources to go to law. Is that fair? How many people who have been defamed will have the case to go to court but not the means, and will therefore have no way of clearing their name?

Let us consider the other side of the argument, which is the position of the defendant. As the relevant part of the LASPO Act is not yet in force, a defendant also has the ability to use no win, no fee conditional fee agreements and after-the-event insurance. If the defendant is successful, the lawyer gets paid and receives a success fee from the claimant. Of course, the defendant does not receive damages. Alternatively, if the defendant loses the lawyer does not get paid but the ATE policy pays the claimant’s costs.

Let me give a couple of examples to illustrate my point. Members of the Public Bill Committee will be familiar with the case of Peter Wilmshurst, but it is important that it is understood by the wider House. Peter Wilmshurst was a scientist who was sued by the American pharmaceutical firm NMT Medical after he criticised its research at a US cardiology conference in 2007 and his comments were quoted by a journalist. Henrik Thomsen, a Danish radiologist, was sued by GE Healthcare for comments he made about a drug, again at a conference. If they had been unable to rely on CFAs and ATEs, they probably would not have been able to defend themselves at all.

As a result of the LASPO Act, defendants will now be faced with three options. First, they can issue a grovelling apology, even if they were absolutely right to say what they did, and hope that that is sufficient to avoid being sued. Secondly, they can try to defend themselves in court without legal assistance or any legal advice and face losing; they will also probably face highly paid, highly skilled lawyers on the side of a major corporation. Thirdly, they can try to scrape together the money to pay a lawyer while bearing in mind that if they lose, the cost might wipe out all their resources. Do we really want eminent doctors and scientists running the risk of losing everything, or preferring not to take the risk and retracting what they said, even though it might be correct and that scientific and medical research might save lives? Of course, the Minister will say that the barrier to pursuing a case will be higher once this Bill is enacted and that that will stop vexatious and intimidatory claims, but that will not happen without an early strike-out route.

My new clause also covers privacy cases, and there can be better illustration of the harm that the LASPO Act will cause than the terrible case involving Milly Dowler. Sally Dowler has gone on record, saying:

“At the outset we made clear that if we had to pay the lawyers, we could not afford to bring a claim; or if we had any risk of having to pay the other side’s costs, we couldn’t take the chance. If the proposed changes had been in place at that time we would not have made a claim. Simple as that, the News of the World would have won, because we could not afford to take them on.”

That is why it is so important to exempt defamation and other matters covered by my new clause from the LASPO Act.

We are not alone. Even Lord Justice Jackson talked about moderated success fees, but the Government have not included his proposals to mitigate the impact of the LASPO Act. The Bill rebalances defamation law in favour of defendants. If we do not remove cases from the LASPO Act, we will condemn wrongly accused people to not receiving justice. How can that be right?

We did not have sufficient time to explore the issue fully in Committee, so let me take the opportunity to put on record what was said in a letter to the Prime Minister on 26 March, in advance of the final stages of the LASPO Bill. The letter was signed by Christopher Jefferies, Gerry and Kate McCann, Peter Wilmshurst, Robert Murat, Hardeep Singh, Nigel Short and Zoe Margolis.

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[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.

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[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.

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[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.

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 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.

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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 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.

Question put, That the amendment be made.

Oral Answers to Questions

Robert Flello Excerpts

Tuesday 3rd July 2012 Commons Chamber

[Mr Djanogly]

They should indeed, and they do. The new guidelines are there to ensure that minimum standards of behaviour are adhered to. We have introduced the guidelines before legislating.

[Robert Flello (Stoke-on-Trent South) (Lab)]

The Tribunals, Courts and Enforcement Act 2007 contains detailed provisions on the regulation of bailiffs, and in May 2010 the coalition agreement stated that action would be taken. Here we are in summer 2012, and no Government response to the consultation is expected until the end of the year and the Government are hitting households from every side, forcing them into more and more debt every day. With a catalogue of appalling behaviour by bad bailiffs, and even reputable bailiffs saying that they need regulation urgently, when will the Government finally stop delaying and get on with it?

[Mr Djanogly]

Any delay arises from the non-implementation of part 3 of the 2007 Act, and the cause of our delay is the same reason why the Labour Government delayed—their legislation does not work. We have acted in the interim by putting guidelines in place, and we are now consulting on upgrading legislation in a measured and balanced way. We will consider the many interests that exist and the balance that we have to achieve.

Alan Turing

Robert Flello Excerpts

Wednesday 27th June 2012 Westminster Hall

[Robert Flello (Stoke-on-Trent South) (Lab)]

It is a pleasure, as always, to serve under your chairmanship, Mr Betts, and I congratulate the hon. Member for Cambridge (Dr Huppert) on securing the debate. I hope that Members will bear with my voice; I am a little croaky this afternoon.

The hon. Gentleman gave a very good overview of the life and work of Alan Turing, including the infamous and famous Turing test, which we all love when we log on to websites and have to type the characters. It is a nice testimony to Alan Turing that every part of our lives these days is touched by his influence. We also heard very good contributions from my hon. Friend the Member for Blackley and Broughton (Graham Stringer) and the hon. Members for Milton Keynes South (Iain Stewart), for Manchester, Withington (Mr Leech) and for Woking (Jonathan Lord).

The word “genius” is overused—it is a little clichéd, as is “hero”. Nevertheless, it is correct to use them when talking about Alan Turing, and the millions of lives that have been saved as a result of his work. Sadly, the state’s behaviour towards him is, to say the least, shameful and needs to be put right.

I first came across Alan Turing’s work when, many years ago, I moved to a place called Milton Keynes—more specifically, to Bletchley—to take up a job with the Inland Revenue. Every morning, I walked past this huge expanse of an estate, with a high fence around it. It all seemed very strange. Curiosity being what it is, I started to inquire about what the place, Bletchley Park, was and, as Members will know, once one starts to inquire about such places, one soon develops a bookshelf lined with every book going on the subject—code breakers, Enigma and so on. It is a fascinating story, and a testimony to the incredible work done by many people, but especially by Alan Turing.

We have heard that the mission to decrypt the coded messages from the Enigma—the German military typewriter-like cipher machine—was hugely important. Turing had the ability to pit machine against machine. He produced the prototype anti-Enigma bombe, which he called Victory—I think that began in the spring of 1940—and the bombe machines effectively turned Bletchley Park into a cipher-breaking factory.

As early as 1943, Turing’s machines were cracking an estimated 84,000 Enigma messages each month—two a minute. No wonder the Prime Minister of the day called the information that came from them, “ultra”. It was ultra-important and, as I shall explain, ultra-significant.

[Kelvin Hopkins (Luton North) (Lab)]

I apologise for joining the debate late. I want to mention Alan Turing’s partner, Tommy Flowers, who made a massive contribution to the Enigma work. He was a General Post Office engineer, who put electronics into telephone exchanges. I had the privilege of meeting him in the last year of his life. We were trying to get him an honour, but he died too soon. He was the person who used the electronics and the valves. I give all credit to Alan Turing, genius that he was, but the beginning of computing would not have happened without Tommy Flowers either.

[Robert Flello]

I was going to mention the Colossus machine that Tommy Flowers worked on, and I will come on to it in a moment.

Turing personally broke the form of Enigma used by the U-boats that were preying on the crucial north Atlantic merchant convoys, which were full of essential supplies for Britain. Churchill’s analysts stated that Britain would soon be starving if the supplies could not get through. Turing also searched for a way to break into the torrent of messages suddenly emanating from a new, and much more sophisticated, German cipher machine. The British code-named the new machine “Tunny”, and many people have said that the Tunny teleprinter was the forerunner of the mobile phone networks that we all enjoy today.

It is probably worth pausing here. The computing power of the mobile phones that many of us have on silent in our pockets or squirreled away somewhere, is much more advanced than that of the machinery that Alan Turing, and indeed Tommy Flowers, were putting together. Even more remarkable is the fact that the likes of Tommy Flowers used GPO telephony valves, wiring and systems deliberately because they did not want to draw attention to the fact that they were building the code-breaking machines. They were constrained, therefore, because they had to base their work on the sort of equipment that was available in any telephone operating system, and that is testimony to the importance of what they did.

Turing’s breakthrough in 1942 yielded the first systematic method for cracking the “Tunny” messages, which enabled the allies to get detailed knowledge of the German strategy—and that, without doubt, changed the course of the war. It was also the seed for the sophisticated Tunny-cracking algorithms that were incorporated into Tommy Flowers’s Colossus, which was the first large-scale electronic computer. With the installation of 10 Colossus machines by the end of the war, Bletchley Park became the world’s first electronic computer facility.

Turing’s work on Tunny was the third of three strokes of genius that he contributed to the attack on Germany’s codes, along with designing the bombe and unravelling the U-boat Enigma. It has been argued that his work shortened the war by not up to two years, but anything up to four. If Turing and his group had not weakened the U-boats’ hold on the north Atlantic, the D-day landings could have been delayed by a year or longer, because the north Atlantic was the route that ammunition, fuel, food and troops had to travel to reach Britain from America.

Any such delay, of course, would have put Hitler in a stronger position to withstand the allied assault. Fortifications along the French coastline would no doubt have been stronger, Panzer armies would have been moved into place, more V2 missiles would have rained down on southern England, and on the ports and airfields, thereby supporting the invading troops. Each year of fighting in Europe is estimated to have cost an average of 7 million lives, so it would not be far off the mark to quantify Turing’s contribution as 21 million lives saved. That gives an indication of the magnitude of his work.

The hon. Member for Cambridge helpfully detailed the post-war work that Alan Turing did, and I will not delay Members by rehearsing it, but it does bring me on to the appalling circumstances of his arrest, prosecution and sentencing. One has to take stock and question why a man who had done so much to save lives—possibly 21 million, perhaps more—was treated in such a way. When one reads the books, it feels like an underhand way of investigating Alan’s life. Reading them, despite the benefit of history, I started to wonder why he was treated in such a way.

As has been mentioned, the former Prime Minister officially apologised in 2009 for how Alan Turing had been treated—I draw right hon. and hon. Members’ attention to that apology; it is worth looking at—but the campaign has rightly continued since then. Numerous commemorations and international events have been held throughout the centenary year. The Google doodle was mentioned, Royal Mail has issued a commemorative stamp and my hon. Friend the Member for Blackley and Broughton (Graham Stringer) drew attention to the work done with Manchester city council involving the Olympic torch and so on. Many events have taken place to recognise the fantastic work done by Alan Turing.

However, we are always brought back to the cul-de-sac that is the 1952 conviction. Hon. Members have given it a lot of thought, and work is going on in the other place on a private Member’s Bill. On legal precedent, are we as a Parliament not about setting legal precedent? Is that not our job? Is it not what we do every day in this place? We come up with new laws, improve laws, change laws and, where they are wrong, correct them. The posthumous conditional pardon in November 2006 of the soldiers shot at dawn was the right thing to do. It was absolutely correct. I am sure that even if that does not set a precedent, it might give us a clue about how to get around the issue.

I hope that Lord Sharkey’s Bill in the other place will find its way through Government time to be considered. I also hope that when the Minister replies, he will confirm that when a private Member’s Bill comes forward in this House, it will be looked on favourably by the Government. I certainly hope so. Whatever we do after this debate, one thing is certain: we must find a way to recognise and in some way pardon Alan Turing for what happened, so that we can hold him up as the hero he was.

--- Later in debate ---

[Mr Blunt]

The Department’s problem is that it is extremely difficult to make a sensible analysis that could be relied on. The living can apply to have their convictions disregarded, but I would think that more than 100,000 people have been convicted of these crimes over two centuries, so the potential scale of applications is enormous.

There is also the question of justice. The sex offences of which Alan Turing was convicted are still capable of being offences in certain circumstances where the other party was under age or the sex was non-consensual. In such circumstances, a pardon would be not only inappropriate, but wrong. The records for some older cases would no longer be available, and the way such offences were recorded would make it difficult, if not impossible, to determine whether a pardon was in fact justified. It is to avoid that problem that the Government have gone down the route of a disregard by application.

It is also worth noting that the exercise of the royal prerogative of mercy has changed over time. Centuries ago it was exercised by the monarch in an unfettered way. In modern times, however, the exercise of the prerogative is not exercised by Her Majesty personally but on the advice and recommendation of a Secretary of State, and it is therefore subject to judicial oversight. Whenever someone makes qualitative judgments on such issues, the prospect of review of the reasonableness of a decision is opened up.

[Robert Flello]

I appreciate that the Minister is in a difficult position. The advice he received from his officials will have gone through the reasons why it is difficult to follow the routes proposed, but I wonder—I put this to the Minister in a genuine spirit of finding a way through—whether he could instruct his officials to find an alternative way to reach the same conclusion. Turning the issue on its head, perhaps the Minister will consider, at a later date, talking to his officials to ask them to find an alternative route.

[Mr Blunt]

It may come as a surprise to the hon. Gentleman, but Ministers in the Ministry of Justice and a number of other senior Ministers in the Government have given their personal attention to the issue. We share exactly the same desire of every hon. Member present to find a way of making atonement and recognising the unique and singular achievements of Alan Turing. The formula that the previous Administration alighted on was the formal apology from the Prime Minister. As the hon. Member for Stoke-on-Trent South himself remarked, it is for Parliament to set legal precedent, and opportunities for Members of Parliament in either House to take their own measures were alluded to.

I am trying to make clear to the House the issues that every Administration have had to wrestle with, and the possible consequences of different courses of action. I assure the hon. Gentleman and other hon. Members present that the matter has received the closest possible attention from Ministers and officials; it continues to do so and will continue to do so in the light of the debate today and the contributions of hon. Members.

My hon. Friend the Member for Milton Keynes South drew the parallel with the Armed Forces Act 2006, which pardoned a group of first world war servicemen, but that was itself a carefully considered response to an unusual situation. The legislation expressly leaves conviction and sentence unaffected, and specifically states that the prerogative of mercy is not affected.

It has been a privilege for me to reply on behalf of the Government in the debate. It has been of particular importance to me, because my mother served at Bletchley Park during the war. When she finally felt able to speak of her work—like everyone else of her generation, she took her duty of secrecy seriously, and it was only when watching documentaries on Bletchley Park on television that she felt that she might be able to share with her family some of her own experiences—she bore first-hand testimony to me and other members of my family of Alan Turing’s importance. The truth is, as the hon. Member for Stoke-on-Trent South and my hon. Friend made clear, that everyone in the Chamber and in this country owes Alan Turing a profound debt of gratitude for our political freedom. In my case, that debt is personal, albeit indirectly.

The debate has been an excellent way in which to pay tribute to the great Alan Turing on his centenary. All of us want to find more ways of marking his enormous achievement and service to our country and of continuing to atone for the disgraceful way in which the society of the time treated him.

Defamation Bill

Robert Flello Excerpts

Tuesday 12th June 2012 Commons Chamber

[Paul Farrelly]

The hon. Gentleman is absolutely correct. The point about early strike-out and early resolution is a general one, and not simply applicable to libel tourism cases.

I turn now to the public interest, responsible journalism and the chilling effect of our libel laws and their cost. I welcome clause 1 on the test of serious harm and the hurdle that claimants have to clear, although I hear clearly the voices calling for it to be further stiffened and clarified, not least with respect to corporations. Clause 7, which extends qualified privilege, especially to fair and accurate reports of scientific conferences, is especially welcome, as is clause 6, where the Government have listened to the Joint Committee and extended protection to peer-reviewed articles in scientific and academic journals. There is concern about the chilling effects of our libel laws on the medical and scientific community, and Sense About Science should be congratulated on bringing these arguments to the fore after several particularly disturbing cases.

Dr Peter Wilmshurst has been mentioned in passing. He is a respected cardiologist at the Royal Shrewsbury hospital and my own hospital, the university hospital of North Staffordshire. In 2007, he was sued for libel by NMT Medical, a company based in Boston, Massachusetts, over a report carried by a specialist Canadian website about critical remarks he made of one of its medical devices at a US cardiology conference. He was sued here for defamation not once but four times over four years. Dr Wilmshurst, quite responsibly, had been involved in proper trials of the effectiveness of the device. In April 2011, the emperor finally ran out of clothes and NMT went out of business months after failing to post its own surety for costs. The case caused untold stress and worry to Dr Wilmshurst and his family and should never have been allowed to go on for so long. The Bill’s reforms ought to prevent such abuse of process, be it from overseas companies or anybody domiciled in this country.

[Robert Flello (Stoke-on-Trent South) (Lab)]

I am most grateful to my hon. Friend for his extremely thoughtful speech. It is worth putting on the record the fact that Dr Wilmshurst was determined to continue and not to retract because he was concerned that, if he did, people might suffer and even die, if a medical device was used that he felt was inappropriate.

[Paul Farrelly]

I agree with my hon. Friend. This case concerned comments made at an academic conference, and the Bill will avert such litigation, but that does not abstract from the general case of people acting in the public interest and being deliberately put through the mill to take them out of the game, to sully their reputation and to bog them down over a long time. Our court system really must address that as part and parcel of these reforms.

Clause 4 addresses responsible publication on matters of public interest. I welcome the clause, but again, as the Bill proceeds, the test will be whether it is a generally progressive reform that overcomes the deficiencies of the so-called Reynolds, or Jameel, defence, which it seeks to codify. That defence was only reasserted this March, in a rare case to reach the Supreme Court—the so-called Gary Flood ruling. As the Bill progresses, I hope that we will see whether the codification in the Bill matches the latest circumstances and developments in common law. The Reynolds defence was a defence of last resort for journalists. It was to be used when a newspaper made an honest mistake in reporting on a matter of interest.

The difficulties in mounting the Reynolds defence have been well rehearsed. The list of 10 principles, first enunciated by Lord Nicholls in 1999, were not supposed to be exhaustive, but in practice they have been used by judges in lower courts as 10 hurdles over which journalists and newspapers must jump to use the defence. It turns out to be a very expensive defence, and it affects how non-governmental organisations compile their reports and decide what they are prepared to write. I hope that during the Bill’s progress the Government can give us comfort that their factors (a) to (i)—not one to 10—will not have the same effect. The House might wish to explore alternatives to bolster the public interest defence.

As I, to much relief, move to conclude my remarks, I want to cite one case concerning the deficiencies of Reynolds and some of the changes introduced in the Defamation Act 1996. On the face of it, The Guardian’s investigation in 2008 into the tax affairs of Tesco should have benefited from Reynolds and other remedies, such as the offer of amends procedure. The Guardian alleged that Tesco, through the use of overseas subsidiaries, was avoiding tax. The company was indeed avoiding tax, but The Guardian, not helped by a lack of co-operation from Tesco, identified the wrong tax—corporation tax, rather than stamp duty land tax. It was an honest mistake. The thrust of the article was absolutely correct: Tesco was involved in elaborate legal tax avoidance schemes, and further investigation by Private Eye showed that it was also elaborately avoiding corporation tax.

In practice, however, The Guardian found that it could not use Reynolds because of how it was being interpreted. Tesco pressed on regardless, despite a lengthy apology in the newspaper and offers of amends. For good measure, it sued the editor personally for malicious falsehood, and by the time it was settled out of court, the case cost a small fortune. Had it gone to the bitter end, some estimates would have put the total at £5 million. For a giant corporation such as Tesco, money was no object. It was perhaps the worst case of inequality of arms that I have come across and that our Select Committee investigation came across, and the worst case of the intimidatory use of the libel laws by a corporation against a publication that we could remember. The test for the Bill is whether such a case could occur again. I encourage the Government to consider the circumstances of that case and learn lessons from it.

That leads me to my conclusion, which concerns one aspect of the Bill where the Government have not accepted a recommendation advanced by both the Select Committee and the Joint Committee on the draft Bill—reforming the ability of corporations themselves to sue for libel. I hope that during the course of the Bill amendments will be tested in that respect.

This has not been an exhaustive comment on the Bill. I welcome it but hope that during its passage the Government, having spent so much time on it, will be receptive to improvements.

--- Later in debate ---

[Robert Flello (Stoke-on-Trent South) (Lab)]

We have had an excellent debate this evening. We have had some extremely informed contributions from across the House—some short; some somewhat longer; some, indeed, quite lengthy—and the debate on the Bill will be all the richer for those varied contributions.

I would like to begin by putting on record my thanks to all Members, from both Houses, who worked on the Joint Committee considering the draft Defamation Bill. They provided excellent observations which improved the Bill to a huge extent—indeed, to an extent that anyone listening to this evening’s debate will not comprehend. I also add my thanks to those my right hon. Friend the Member for Tooting (Sadiq Khan) gave at the start of this debate to the key people and organisations—to the Libel Reform Campaign, which did fantastic work; to Dr Simon Singh, who has been mentioned by many contributors to this debate; and to all those who petitioned and lobbied for this Bill. We owe them a debt of gratitude for the work that they did and the pushing that they instigated and continue with.

This is a good Bill—it has to be, as it started life under a Labour Government. There are, however, still areas where it needs to be improved. On the assumption—a reasonable assumption, I think—that the Bill will make it to Committee, we will table a number of amendments and new clauses which we hope will make it the best it can possibly be. I hope that the Under-Secretary of State, the hon. Member for Huntingdon (Mr Djanogly) is indeed in listening mode, because the journey that this Bill has undertaken is a classic example of co-operative working. We hope that our serious and practical input in order to improve the Bill will be accepted at an early stage, unlike the challenge—I will be kind this evening—that was the Legal Aid, Sentencing and Punishment of Offenders Bill, where the Government had to endure strong persuasion, shall we say, in the other place to make the right concessions. [interruption.] I am in a very generous mood this evening. Let us have none of the tactics with this Bill that were needed in that case. Let us hope that the Minister is indeed in listening mode and will act quickly and appropriately.

As my right hon. Friend the Member for Tooting said there is much in the Bill that we are pleased about, which reflects the good work up to this point. For example, the protection offered to scientists and other academics in peer-reviewed statements and the single publication rule are good measures, as are the tidying-up provisions, such as those relating to bookshops and, despite the comments of the hon. Member for North East Somerset (Jacob Rees-Mogg)—meant, I am sure, in very good faith—to the Slander of Women Act 1891.

A number of concerns remain, however, and I am keen to highlight them this evening in order to provide the Minister and his officials with plenty of time to address them before we meet in Committee. We must not lose any opportunity to improve the Bill further in the same consensual way that we have worked on it up to now.

The first concern is the fact that the main mischief caused by the cost of defending an action and the length of time taken to resolve cases might not be addressed at all by the Bill. The Joint Committee agreed with the Government’s intention of promoting early resolution by allowing the judge to determine key issues at an initial hearing. However, the Committee went on to propose a stricter approach, as it felt that the Government’s changes did not go far enough. The Minister and his officials should revisit the Committee’s report urgently, with a view to bringing forward revised civil procedure rules and more. Those points are raised in the report; they have been well documented and discussed, and we need new proposals to be introduced urgently. Let me put on record our concern that, although the Bill tidies up the existing law and brings defamation law into the 21st century, it might not have any positive impact on the costs and delays in libel cases.

We also have grave concerns about the ability of ordinary people to get access to justice. Kate and Gerry McCann, Christopher Jefferies and others wrote an open letter to the Prime Minister during the passage of the Legal Aid, Sentencing and Punishment of Offenders Bill, as my right hon. Friend the Member for Tooting said. It is worth repeating their views, as they are so important. The letter warned:

“Parliament is on the cusp of passing a law that will grossly restrict access to justice for ordinary people in privacy and libel cases, without even any saving to the public purse. We strongly object to the passing of this unjust measure and urge you to amend it before it is too late.”

Of course, the LASPO Bill was passed. The letter continued:

“A successful libel defendant obviously does not get any damages so these reforms will prevent all but the rich from being able to defend their right to free speech against wealthy or corporate libel claimants.”

We share the concern that the changes brought about by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 will result in justice being denied to most people, who will be unable to protect their good name or to defend themselves, even when they publish the truth.

We would like the Government to be more explicit about what constitutes substantial harm. As we have heard today, this is an area of widespread concern. In Committee, we will seek far more detail on this from the Government, and I hope that they will seize the opportunity to provide it. I hope that the Minister will take that opportunity to put on record a clarification of what is substantial harm, and what it is not. One person’s substantial harm might be quite different from that of another. I shall return to that point later. We would also like the Government to be clearer about honest opinion. Again, we will test that point in Committee in order to draw out what they mean by the term. We also want them to tighten up the single publication rule, as we feel that a further test relating to the credibility of the source would improve matters further.

On the question of trial by jury, we hope that the Government will take the opportunity to be clearer—again in line with the findings of the Joint Committee—about which cases should go before the courts. The Libel Reform Campaign and many others have highlighted serious concerns about the public interest tests. Indeed, an interesting and appropriate article in The Times today raised the point that, while clause 4 seeks to replace the Reynolds defence, it does not bring the law up to date in line with the Flood judgment. I agree with the article’s view that a tick-box approach will help nobody. Moreover, there is a real risk that the factors could end up being used as hurdles or as elements to be ticked off. I know that the clause does not say that. In fact, it states that

“the matters to which the court may have regard include (amongst other matters)”,

but, given what happened in relation to Reynolds, there is a danger that those matters would become a set of hurdles or, as the article explains, a set of tick-boxes.

We have two further serious concerns. First, there is the clause that deals with the operators of websites. On the face of it, clause 5 seems a sensible approach, bringing the law into the 21st century. However, the absence of draft regulations seems sloppy and misguided. I hope the Minister will forgive me for using those words, but given the fundamental importance of regulations to the Bill, no other words do justice to the danger of their absence. The Secretary of State said that we will have to get the detail eventually. I am sorry, but that is not good enough. There is also the worrying development that libellous statements hosted on a website might remain in place because the defamed person is unable to take action against the identified author.

The Justice Secretary made great play in this morning’s media—as, indeed, did the Minister—of the fact that internet trolls would no longer be able to hide behind anonymity. That is greatly to be welcomed, but what about the internet trolls whose details are provided, thereby allowing the website operator to use that defence? What happens when the troll is in another jurisdiction? The website operator is able to use the defence of identifying the internet trolls, and that is it—the line comes down. We shall seek to amend the Bill in line with the Joint Committee’s recommendations.

Let me deal with what hon. Members have said many times is a glaring absence from the Bill: corporations. All too often, corporations are able to flex their muscle and call in their lawyers even when the author or publisher makes a justifiable statement that is fully capable of being defended. The corporate bullying must end. I am surprised that the Government have given in to brash big business rather than at least attempt to address the inequality of arms. We shall seek to bring forward a new clause to encapsulate what the Joint Committee report concluded on this important issue. Broadly, we shall seek to ensure that serious harm in the context of corporations means that where there has been or is likely to be a substantial loss of custom directly caused by the defamatory statements, the court must give permission before a libel claim can be brought. It is all in the Joint Committee report, and we have heard many Members across the Chamber say how much they welcome its work. It is incumbent on the Minister to take on board the comments of Conservative Members who say that the report is a good one that should be taken forward.

Let me comment on some of the contributions, beginning with the Lord Chancellor’s opening comments. He said that the courts would decide what counts as “serious harm”. Does that mean yet more litigation, yet more costs and yet more delay while the courts decide what it is? We need a really strong steer to avoid that. He referred to the development of new procedures to hear preliminary points and meanings before full trial. I think that is very good, but again it is all pie in the sky and yet to be done, with nothing concrete before us. As to the circumstances in which jury trials will be left to the judge, the Lord Chancellor was fairly clear; he felt it was a matter for the judges to decide when juries should be brought in, but that leaves things wide open to further litigation, further delays and further costs.

Moving on to other contributions, we heard first from the hon. Member for Mid Bedfordshire (Nadine Dorries), who spoke from personal experience about some of the appalling messages, including death threats, that she had received. She raised the issue that a matter of serious harm for one person might not necessarily be the same for another person. She also mentioned that the impact of being defamed can last a lifetime for a young person; it might impact on them and never go away. She was the first to raise the issue of looking at libel law on a regular basis. At that point, I almost heard the Minister groan. As the debate continued, we heard some alternatives to that, some of which had merit, and I shall come back to them.

My hon. Friend the Member for Bishop Auckland (Helen Goodman) made a characteristically thoughtful and serious speech. She made the excellent point that the police were not always up to speed when it came to crimes on the internet. The different police forces need to find a way of ensuring that when someone makes a complaint of this nature, it is referred to specialist officers who have the necessary knowledge and experience. Perhaps the list of matters to be considered by the police and crime commissioners should include that, as a matter of urgency.

My hon. Friend drew attention to the importance of supporting good journalism. We have heard a great deal about bad journalism today and about how it should be dealt with, but a Bill that supports good journalism should surely be encouraged. She discussed the meaning of “serious harm”, and also the difference between the website issue raised in clause 5(2) and the issue of letters pages or chat shows. I especially enjoyed her observation that the internet was not like a mediaeval forest that was beyond the law. We may well return to that point in Committee. My hon. Friend, and a number of subsequent speakers, also made the point that the No. 1 problem for a particular newspaper—as I understood it—was the threat from oligarchs who would try to sue it if any inappropriate comment was made.

The hon. Member for Morecambe and Lunesdale (David Morris) talked about the use of lower courts. When Opposition Members discussed the issue with libel experts, they expressed concern about the level of expertise in some courts, and I agree with the hon. Gentleman that one option is to establish whether some of the problems result from a lack of specialist judges.

The hon. Member for North Antrim (Ian Paisley) hit the nail on the head when he said that 21st-century libel reform was not straightforward; I do not think anyone could disagree with that. I was also impressed by his insistence that the Bill should be about the protection of people, which echoed our concern about website operators and others.

The hon. Member for South Swindon (Mr Buckland), who is not in the Chamber now, produced a lengthy analysis of the Bill.

[Sadiq Khan]

Very generous.

[Robert Flello]

My right hon. Friend chides me for being generous again. I am merely trying to create the right atmosphere for the Committee stage, when the Minister will doubtless accept all our amendments and new clauses.

The hon. Gentleman felt that the Bill was better as a result of the Joint Committee approach, and better than it would have been had it relied solely on evidence sessions. How can I disagree? As I have said, I strongly believe that the Joint Committee’s report needs to be reflected in the Bill.

My right hon. Friend the Member for Tottenham (Mr Lammy) spoke of the balance between freedom of expression and protection of reputation. He rightly raised points about companies and corporations, and referred briefly to the consequences for jury trials.

In his substantial contribution, the hon. and learned Member for Sleaford and North Hykeham (Stephen Phillips) rightly observed that costs were driven by procedure. The draft Bill that was considered by the Joint Committee focused strongly on that point, and we need to see some movement on that from the Minister.

My hon. Friend and neighbour the Member for Newcastle-under-Lyme (Paul Farrelly) returned us to the theme of responsible journalism. He took us on a trip down memory lane when he talked about the infancy of Google and the like. He then drew attention to some of the good aspects of the Bill and some of the omissions, such as the omission of provisions relating to corporations.

[Paul Farrelly]

I also took the House on a trip down memory lane when I mentioned the issue of the Russian mafia and Russian oligarchs, which is ever present today.

[Robert Flello]

I am very grateful to my hon. Friend for that comment. I knew he would not want to miss the opportunity to add it, so I paused just long enough for him to rise to intervene. He makes a good point. We must not allow Russian mafia—criminal gangs—to suppress free speech in the UK. That is outrageous.

The right hon. Member for Carshalton and Wallington (Tom Brake) highlighted a number of areas that we need to address. I look forward to perusing Hansard tomorrow to refresh my memory so we can address them in Committee.

I was impressed by the contribution of the hon. Member for Hastings and Rye (Amber Rudd), in part because she managed to mention her constituency on so many occasions in the context of defamation law. She made a very good speech, in which she said it was too easy for the rich and powerful to stifle free speech. I entirely agree.

The hon. Member for Cambridge (Dr Huppert) is no longer in his place. He gave one of his customary long short speeches. He talked about the chilling effects that we have seen and went through quite a few cases. He hit the nail on the head when he said that clause 5 on website operators addresses a complex area that is difficult to get right. I agree.

The hon. Member for Hexham (Guy Opperman) talked about his personal experience as a mediator and libel barrister. The hon. Member for South Derbyshire (Heather Wheeler) welcomed the Bill and the cross-party approach. The hon. Member for North East Somerset said in a complementary way—with an “e” not an “i”—that, instead of having consensus, he preferred holding to the cut and thrust principle. If he serves on the Committee, he may well see plenty of cut and thrust as we ensure that the Bill is knocked into good shape. I thought he was a little unfair to his coalition colleagues, but he redeemed himself by reciting “Othello”, I think—I hope I am not wrong about that. He also made the very good point that those responsible for websites must take responsibility for the content on them. Of course there need to be protections where website operators act responsibly and do the right thing. We will need to see the regulations on that, and we have not yet had sight of them. I never thought I would hear the hon. Gentleman say he was an anti-establishmentarianist —if there is such a word—but it was interesting to hear him say so and to talk about the battle between libel and free speech.

We have had a good debate and, in view of the consensus on the key principle, we will not seek to divide the House this evening. However, I again stress to those on the Treasury Bench that they should see our acceptance of the principle and our willingness to work collaboratively as an opportunity to embrace positive improvements so that we do not rehearse the protracted warfare that gave Ministers a number of bloody noses in the other place. We do not want to see that. Instead we want to see a good Bill come out of this process.

So let us move into Committee with a genuine desire to improve this important piece of legislation further.

--- Later in debate ---

[Mr Djanogly]

I understand and agree with the hon. Gentleman’s sentiment, however I am reflecting what is now in common usage and “troll” is a word that people will understand. Some people understand it in either the criminal or the civil context, but the point I am making is that it can be used in both contexts.

Our approach will also promote freedom of expression by helping to ensure that material is not needlessly taken down without the author being given the opportunity to defend it, as often happens now. I can confirm to my hon. Friend the Member for Cambridge that we will also be ensuring that protection is in place for whistleblowers.

[Robert Flello]

Will the Minister please address the issue of what happens when a defamatory statement is put on a website anonymously and the website operator then tells the person defamed who the person posting it is but they are impecunious and are out of jurisdiction? What happens then in terms of taking the statement off the website, because the website operator now has a defence?

[Mr Djanogly]

If the website operator has a defence, they are out of the picture. That does not stop action being taken against the anonymous troll, but that would have to be done by way of an order, which, admittedly, would be a more expensive procedure.

Oral Answers to Questions

Robert Flello Excerpts

Tuesday 15th May 2012 Commons Chamber

[Mr Blunt]

I can definitely say yes to my hon. Friend. There has been a steady improvement in services to victims and witnesses in the past two decades. The resources that we are making available from offenders and the move to restorative justice are part of a much wider process of engaging victims much more centrally in the criminal justice system. I am therefore very happy to give my hon. Friend a positive response.

[Robert Flello (Stoke-on-Trent South) (Lab)]

The Government’s plans to break up the national infrastructure that supports victims and witnesses has been described as “unworkable, damaging and dangerous.” We are just a few months away from elections, yet the Government’s approach to victims’ services is a shambles. Given how unpopular transferring victims’ services to PCCs is proving to be, when will the Justice Secretary—wherever he is—set out exactly what services will be maintained nationally, what will go out to local commissioning, and what safeguards will be in place to avoid the damaging and dangerous break-up of crucial support for victims? We need to know now, not in months to come.

[Mr Blunt]

We need to know, and the House will know, when we have come to a considered view, answered all these questions and gone through the normal processes and assessments of government. That is entirely normal. The hon. Gentleman will get the answers to all his questions when we publish our confirmed proposals.

Oral Answers to Questions

Robert Flello Excerpts

Tuesday 13th March 2012 Commons Chamber

[Mr Blunt]

We want victims’ personal statements to be living documents that will play a full role, particularly in advising the courts on the sentence following the consequences of the crime.

[Robert Flello (Stoke-on-Trent South) (Lab)]

Once police commissioners are in place, we could have 41 different standards of victim support across the country. The service that someone living, working and travelling across the midlands receives could depend on one of four or more areas, depending on where the crime is committed. Given the real concerns being raised by victims groups about the potential mess that could arise as a result of the Justice Secretary’s policies, will there be an individual—[Interruption.] Perhaps the Minister would care to listen to the question before deciding to heckle from the Front Bench. Given the real concerns being raised by victims groups about the potential mess, which he should be aware of, will an individual or an organisation be charged with enforcing a minimum standard that victims of crime can expect, regardless of geography—a newly appointed victims commissioner perhaps?

[Mr Blunt]

The hon. Gentleman has pointed out the problems that can come with enfranchising people at a local level, but the Government believe in localism and it is our view that police and crime commissioners will have the best appreciation of the victim services that are required in their local area. We look forward to the hon. Gentleman’s contribution to the consultation to see precisely what his view is. We have noticed that he is against a localist approach, but this Government are not.

Oral Answers to Questions

Robert Flello Excerpts

Tuesday 31st January 2012 Commons Chamber

[Robert Flello (Stoke-on-Trent South) (Lab)]

Last week, there were two tragic deaths of young people in custody: Jake Hardy, a 17-year-old held at Hindley, and 15-year-old Alex Kelly, a prisoner at Cookham Wood. Although, rightly, there will be investigations and inquests, urgent questions need to be answered. Had mental health assessments been undertaken? Were the boys receiving treatment? Had there been any fighting involving these children? Were any forms of restraint used? Will the Secretary of State make urgent inquiries into the circumstances of the deaths to address concerns that this may be a new systemic problem, and inform the House?

[The Parliamentary Under-Secretary of State for Justice (Mr Crispin Blunt)]

Yes. The hon. Gentleman will be aware that four separate types of inquiry are to be conducted. Later today I will meet the chairman and chief executive of the Youth Justice Board and discuss those cases.

Oral Answers to Questions

Robert Flello Excerpts

Tuesday 13th December 2011 Commons Chamber

[Mr Djanogly]

I am happy to meet to discuss the Teesside service, but not the coroner per se. The Lord Chief Justice and the Lord Chancellor are aware of the concerns that have been expressed about the Teesside coroner and have asked the Office for Judicial Complaints to investigate. I cannot comment any further while that investigation is ongoing.

[Robert Flello (Stoke-on-Trent South) (Lab)]

The Secretary of State’s change of heart, perhaps encouraged by the other place, about the creation of a chief coroner is most welcome, and I look forward to hearing that a chief coroner has been appointed. However, there are still major concerns about the repeal of section 40 and other sections in the Coroners and Justice Act 2009 that provide for the new appeal process. I understand the Secretary of State’s concerns about costs, but all that bereaved families are looking for is a commitment to bring forward a proper appeal process. The Teesside coroner is a very good example of the fact that the current system of judicial appeal is time consuming, costly and damaging. Will the Minister reconsider the decision about the appeal process?

[Mr Djanogly]

We take the view that it is better to focus on raising the standards of coroners’ inquiries and inquests to ensure that bereaved families are satisfied with the process without the need for new appeal rights and the resulting expensive litigation.

Common European Sales Law

Robert Flello Excerpts

Wednesday 7th December 2011 Commons Chamber

[Robert Flello (Stoke-on-Trent South) (Lab)]

This is not a new matter. In European Committee B, which met on 24 May, the Under-Secretary of State for Justice, the hon. Member for Huntingdon (Mr Djanogly) noted that European contract law had been more than 10 years in its formation. Indeed the Minister has referred to that again today. Despite the length of that period, the actual draft law has been put together in some haste.

In the Committee, I raised a number of concerns and expressed the view that the Commission had not come up with any reliable evidence for its proposals; that many other barriers to trade need to be addressed as more of a priority than this issue; and that adopting another set of contract rules was unnecessary and possibly harmful.

The Committee was supportive of the toolbox approach, but not more. According to the Hansard report of that Committee, I said that I was concerned that the exercise on the Commission’s part, namely the green paper and the whole thrust of things, seemed to be a way of trying to push through option 4 instead of doing what it should be doing, which was putting together the toolbox. I therefore urged the Under-Secretary of State to go back to the Commission and make representations in the strongest terms to get things back on track and promote the toolbox and not the draft contract law. What has changed since May? Sadly, I think nothing positive has changed and so the Opposition agree that a reasoned opinion should be sent to the presidents of the European institutions, in effect, to reject the draft regulation.

The draft European sales law has caused a great deal of concern for many individuals and organisations and little support appears forthcoming from any quarter. Let me be gently mischievous here and suggest that other than the Lord Chancellor—whose generally Europhile stance accords with that of his party—I am not aware of any quarter where this particular proposal has received any positive comments at all.

The aim of the proposed regulation seems laudable enough. It is to reduce what the EU perceives as barriers to cross-border trade and thereby improve the ability of traders to exploit the common market and help consumers gain access to products across member states. That is all very laudable in theory, but let me explore that aim.

The evidence base from the European Union seems flimsy to say the least. Evidence from UK representative organisations shows just how weak the EU research appears to be. The survey of the Federation of Small Businesses demonstrated that just 18% of its members thought that a European Union sales law would make their life easier, but that seems to me to be a very low figure given the aims of the regulation.

The consumer organisation Which? opposes the regulation, saying that the proposed law would not contain a satisfactory level of consumer protection, that there would be a risk to consumer protection both cross-border and domestically, and that there would not be a resultant increase in cross-border trade to benefit consumers.

That view is supported by various Eurobarometer and Flash Eurobarometer surveys that show fairly comprehensively that the problem is not the absence of a common EU sales contract. Consumer Focus does not support the Commission’s proposals because of insufficient evidence of need, legal uncertainty and cost. We know, therefore, that there is no proven case for bringing in this regulation.

Let me now turn to the issue that has vexed many commentators and is the basis of the reasoned opinion—subsidiarity. Subsidiarity is crucial, and I will not repeat the Minister’s explanation of this term, which was very good. As I have said, the evidence from the Commission is poor, and that lack of evidence in itself breaches the requirements of article 5 of protocol 2 of the treaty on the functioning of the European Union. As well as breaching the procedural requirements, the proposed regulation breaches the principle of subsidiarity. We are clearly on unsound foundations when looking at this proposed regulation and we all know what happens, especially in a European context, when things are built on insufficient foundations.

I hope that other Parliaments take a similar view and that they hear the views expressed today. Will the Minister assure the House that the Government will actively seek to persuade other European Union member Parliaments that they too should approach this matter in a similar way?

I could explore the issues around legal complexity and legal uncertainty. I could elaborate on the impact on domestic contract law where cross-border trading puts domestic traders at a competitive disadvantage. I could raise the damage that may arise to consumer rights from bringing in this proposed EU sales law, which would actually set back the improvements that we have seen. However, given that the House seems to be unanimous in wishing to see this draft regulation sent back to the European institutions with the reasoned opinion opposing it, I am content to draw my remarks to a conclusion.

In closing, may I commend those who have served on European Committee B and urge the Government to apply pressure at a European level—perhaps with the support of others in Europe—to ensure that we do not have to consider poorly evidenced proposals again? On that basis, let me say I do not wish to delay the House any further or object to this motion.

[The Parliamentary Under-Secretary of State for Justice (Mr Crispin Blunt)]

With the leave of the House, Mr Deputy Speaker, let me reply to the points raised in the course of this debate. I have taken careful note of all the points raised and they will of course further guide our work as we consult on this proposal in the next phase. As the House is aware we will have a proper public consultation on the proposed regulation in the new year. I know, however, that our general approach to this dossier has to date been supported by the scrutiny Committees in both Houses.

Let me pick up the particular points that have been made this afternoon. I commend my hon. Friend the Member for Stone (Mr Cash) and his Committee for the work that they have done on this instrument. I particularly welcome his contribution to the debate today. He drew attention to the contributions that have already been made by Consumer Focus, the Federation of Small Businesses and the Law Society. I want to answer the Opposition spokesman’s characterisation of the position—he said that absolutely no one out there thinks there is any merit in this measure apart from the Lord Chancellor—which is wrong on both counts. However, I will return to that and correct him.

My hon. Friend the Member for Stone made a substantive point in an intervention on my hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips), who confirmed that he was entirely right to say that if article 352 were used, the European Union Act 2011 would require an Act of Parliament before a Minister could agree to it. The legal base is therefore important, and I have made clear the Government’s views, including our doubts about whether article 114 applies, which is an entirely open question.

My right hon. Friend the Member for Carshalton and Wallington (Tom Brake) asked whether the Government had assessed whether the new law would be more complex than that which currently exists, whether businesses could choose to opt into the process and whether that would leave them in a better position. There is a concern that having two alternative regimes could lead to confusion. It might also be too complex for many consumer transactions. The existing common law emphasises certainty—a point made by my hon. and learned Friend the Member for Sleaford and North Hykeham—but the law proposed in this case does not appear to have that emphasis. Again, this is an area where we need detailed legal analysis, which is ongoing. We will consider the views of interested parties, many of whom have significant expertise in this area.

That is an appropriate note on which to turn to my hon. and learned Friend. He drew on the remarks of the remembrancer of the City of London, who has suggested that the proposed measure might be the thin end of a wedge intended to introduce European contract law, thereby undermining the universality of English contract law. It is important to draw attention today—when Her Majesty is opening the Rolls building, a new and impressive commercial court—to the extremely extensive service that the legal profession in London provides to the entire world of commerce. That point ought to be given importance in our consideration of this matter.

As to whether this measure is the thin end of the contract wedge, I should point out that the scope of the draft regulation has been narrowed since the initial discussions began some years ago. The proposal that we are discussing covers the sale of goods and does not extend more widely into contract law. We would have to address any such proposals carefully, and will watch extremely closely if any proposals are made to widen the scope. Each will be considered on its merits. I can also reassure the hon. Member for Stoke-on-Trent South (Robert Flello), who spoke for the Opposition, that my right hon. and learned Friend the Lord Chancellor and I—and, indeed, the whole of Her Majesty’s Government—see no need for a general system of European contract law.

The tenor of the argument produced by my hon. and learned Friend the Member for Sleaford and North Hykeham was extremely clear, as was the expertise that he used to make it. He made a powerful point about the potential for increased transactional costs, not least because lawyers would face considerable difficulties in giving clear advice to small and medium-sized enterprises. He very properly pointed out to the House that if the measure were introduced, the cost of growing case law in this area to provide the necessary certainty would lead to a process that might take decades. The businesses using this form of law would bear the costs, as they would find out—either to their cost or otherwise—through the legal process of testing its bounds.

Finally, let me repeat, so as to make it perfectly clear, that the hon. Member for Stoke-on-Trent South wholly misrepresented the views of the Lord Chancellor. [Interruption.] I am grateful to hear the hon. Gentleman’s sedentary reassurances on that point, but it would be a service to the House if in future he did not seek to misrepresent positions that he plainly does not appreciate or understand. He then said that absolutely nobody was in any way positive about this measure. He was wrong about that as well.

[Robert Flello]

I am sure that the Minister normally follows every word I say very closely, but sadly he must have been distracted when I said that there was very little support outside. I did not say that there was no support, because the Federation of Small Businesses has said that it supports the measure. However, I reiterate the point that only 18% of people think that it would make a difference.

[Mr Blunt]

I am grateful for that intervention, because I had misheard the hon. Gentleman and would not want to mischaracterise his arguments. He makes the point that I was coming to, which is that the Federation of Small Businesses says in its submission that it sees an argument in principle for the measure, a point that was reflected in what my hon. Friend the Member for Stone said. In a sense, it is axiomatic that, at the European level, there would be a case for such a measure. The FSB has made it clear that its support for a common European sales law is dependent on its being clear and simple for small and medium-sized enterprises to use, without placing unreasonable burdens on business. We will look closely at those details in the consultation.

I can assure right hon. and hon. Members that any development in the Government’s position on the dossier will be made on the basis of good evidence of need and a robust analysis of the impacts. The Government will pay particular consideration to whether the proposed regulation is a proportionate response to the problems envisaged by the Commission, whether that response complies with subsidiarity and whether the treaty base is appropriate for the measures proposed. We will work with all those most affected by the change, engaging with business and consumer groups in particular. I hope and expect that we will incorporate contributions from Governments in other member states and from the European Parliament.

Let me answer the point made by the hon. Member for Stoke-on-Trent South, who suggested that Her Majesty’s Government should go around trying to encourage Parliaments in other member states to take an interest. We do not think it proper for Her Majesty’s Government to do that. Indeed, he will have heard the suggestion in my opening remarks to the effect that parliamentary groups and authorities should take up the challenge that he has thrown down to them. Given the law of unintended consequences, I fear that if the Government tried to do that, it might be less convincing than fellow parliamentarians trying to act on other national Parliaments, which might be rather more effective.